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ENCYCLOPEDIA 


OF 


FORMS  AND  PRECEDENTS 


FOR 


PLEADING  AND  PRACTICE,  AT  COMMON  LAW, 

IN  EQUITY,  AND  UNDER  THE  VARIOUS 

CODES  AND  PRACTICE  ACTS. 


EDITED   BY 

WILLIAM  MACK  and  HOWARD  P.  NASH 

UNDER  THE    SUPERVISION    OF 

JAMES  COCKCROFT, 

AUTHOR   OF 

The  American  and  English  Encyclopcedia  of  Law 

AND    THE 

Encyclopedia  of  Pleading  and  Practice. 


Vol.  V. 


NORTHPORT,    LONG  ISLAND,   N.   Y. . 

JAMES  D.  COCKCROFT. 
1898. 


Copyright,  1898, 

BY 

JAMES  COCKCROFT. 


MADE   BY 

WEED-PARSONS   PRINTING  COMPANY 

ALBANY,    N.    Y. 

6-6,  i8g8 


TABLE   OF  TITLES. 


Titles  in  italic  are  cross-references. 


Compounding  Offenses,  i. 

Compromise,  12. 

Concealed  Weapons,  29. 

Concealment     of    Birth    or 
Death,  30. 

Condemnation  Proceedings,  ^6. 

Confession  and  Avoidance,  37. 

Confession  of  Judgment,  46. 

Consideration,  114. 

Consolidation  of  Actions,  131. 

Consolidation  of  Corporations,  138. 

Conspiracy,  138, 

Constables,  226. 

Contempt,  226. 

Continuances    and    Adjourn- 
ments, 315. 

Contract  Labor  Law,  421. 

Contracts,  425. 

Contracts  of  Hire,  425. 

Contribution,  433. 

Contributory  Negligence,  458. 

Conversion,  461. 

Convicts,  461. 

Copyright,  466. 

Coram  Nobis,  510, 

Coram  Vobis,  510. 


Coroner's  Inquests,  510. 
Corporations,  523. 
Costs,  775. 
Counterclaim,  824. 
Counterfeiting,  824. 
County  Commissioners,  862 
Coupons,  862. 
Covenant,  862. 
Covenants,  868. 
Coverture,  868. 
Creditors'  Suits,  874. 
Crime  against  Nature,  921 
Criminal  Complaints,  930. 
Criminal  Conversation,  985. 
Cross-Bills,  991. 
Cross-Complaints,  991. 
Crossings,  995. 
Cruelty  to  Animals,  995. 
Cruelty  to  Children,  1009. 
Damages,  Offer    to    Liquidate, 

1018. 
Dangerous  and  Vicious  Animals^ 

1020. 
Dead   Bodies    and    Cemeteries, 

1030. 


609308 


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http://www.archive.org/details/encyclopediaoffo05michiala 


COMPOUNDING  OFFENSES. 

By  Jos.  R.  Long. 

I.  CRIMINAL  Compounding,  i. 

1.  Generally^  i. 

2.  After  Prosecution  Begun,  8. 

II.  COMPROMISE  BY  LEAVE  OF  COURT,  lo. 

1.  Acknowledgment  of  Satisfaction,  lo. 

%.    Warrant  to  Discharge  Defetidant  from  Custody,  lo. 

3.  Order  Discharging  Recognizafice,  ii. 

I.  CRIMINAL  COMPOUNDING. 
1.  Generally. 

Form  No.  5967. 
(Precedent  in  2  Chit.  Cr.  L.  221;  Archb.  Cr.  PI,  586.) 

Middlesex.  The  jurors  for  our  lord  the  king  upon  their  oath 
present  that  heretofore,  to  wit,  on  the  twentieth  day  of  February,  in 
the  sixth  year  of  the  reign  of  our  sovereign  lord  George  the  Fourth, 
by  the  grace  of  God  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  king,  defender  of  the  Faith,  at  the  parish  of  St.  Paul,  Covent 
Garden,  in  the  said  county  of  Middlesex,*  one  Richard Poe,  with  force 
and  arms,  feloniously  did  steal,  take  and  carry  away  one  lamp,  of  the , 
value  of  twenty  shillings,  of  the  goods  and  chattels  of  one  John  Doe, 
late  of  the  parish  of  St.  Paul,  Covent  Garden,  in  the  said  county  of 
Middlesex,  against  the  peace  of  our  lord  the  king,  his  crown  and 
dignity:  And  that  the  said y^//«  Z>f^,  well  knowing  the  premises, 
and  the  said  felony  to  have  been  by  the  said  Richard  Roe  so  as  afore- 
said done  and  committed,  but  contriving  and  intending  unlawfully 
and  unjustly  to  pervert  the  due  course  of  law,  in  this  behalf,  and  to 
cause  and  procure  the  said  Richard  Roe,  for  the  felony  aforesaid,  to 
escape  with  impunity,  afterwards,  to  wit,  on  the  twentieth  day  of 
February  aforesaid,  ^  with  force  and  arms,  at  the  parish  of  St.  Paul, 
Covent  Garden,  aforesaid,  unlawfully  and  for  wicked  gain's  sake,  did 
compound  the  said  felony  with  the  sz\(S.  Richard  Roe,  ZiXiA  did  then 
and  there  exact,  receive,  and  have  of  the  said  Richard  Roe  the  sum  of 
eighteen  shillings,  in  moneys  numbered,  for  and  as  a  reward  for  com- 
pounding the  said  felony,  and  desisting  from  all  further  prosecution 

1.  Where    an    indictment    for    com-    date,  judgment  was  arrested,  although 
pounding   a   felony   charged   that   the     the  compounding  was  charged  to  have 
felony  was  committed  on  a  certain  date     been  committed   "afterwards."     State 
and    the    compounding   at   an   earlier    v.  Dandy,  i.   Brev.  (S.  Car.)  395. 
5E.  of  P.P.  — I.  1  Volumes. 


5968.  COMPOUNDING  OFFENSES.  5969. 

against  the  said  Richard  Roe  for  the  said  felony;  [and  that  the 
said  John  Doe,  on  the  twentieth  day  of  February,  last  aforesaid, 
at  the  parish  of  St.  Paul,  Covent  Garden,  aforesaid,  did  thereupon 
desist,  and  from  that  time  hitherto  both  desisted,  from  all  further 
prosecution  of  the  said  Richard  Roe  for  the  said  felony;]^  to  the 
great  hindrance  of  justice,  in  contempt  of  our  said  lord  the  king  and 
his  laws,  and  against  the  peace  of  our  said  lord  the  king,  his  crown 
and  dignity. 

Form  No.  5968. 

(Precedent  in  Reg.  v.  Burgess,  15  Cox  C.  C.  779.)' 

Central  Criminal  Court,  to  wit.  The  jurors  for  our  Lady  the 
Queen  upon  their  oath  present  that  heretofore,  to  wit,  in  the  year  of 
our  Lord  i8<?5,  one  Arthur  Bagley  feloniously  did  steal,  take  and 
carry  away  certain  money,  to  wit,  to  the  amount  of  28%.  of  the 
moneys  of  Henry  Bedford,  against  the  peace  of  our  said  Lady  the 
Queen,  her  crown  and  dignity;  and  that  William  Henry  Burgess,  well 
knowing  the  said  felony  to  have  been  done  and  committed  by  the 
said  Arthur  Bagley  as  aforesaid,  and  contriving  and  intending  to  per- 
vert the  due  course  of  law  and  justice,  and  to  cause  and  procure 
the  said  Arthur  Bagley  for  the  felony  aforesaid  to  escape  with  im- 
punity, afterwards,  to  wit,  on  the  5th  day  oi  July,  in  the  year  aforesaid, 
in  the  county  of  Surrey,  and  within  the  jurisdiction  of  the  said  court, 
unlawfully  and  for  gain's  sake  did  compound  the  said  felony  with  the 
said  Arthur  Bagley,  and  did  then  exact,  take,  receive  and  have  from 
the  said  Arthur  Bagley  the  sum  of  28%.  for  and  as  a  reward  for  com- 
pounding the  said  felony,  and  desisting  from  prosecuting  the  said 
Arthur  Bagley,  and  for  procuring  that  the  said  Arthur  Bagley  should 
not  be  prosecuted  for  the  felony  aforesaid,  to  the  great  hindrance  of 
justice,  in  contempt  of  our  said  Lady  the  Queen  and  her  laws,  and 
against  the  peace  of  our  said  Lady  the  Queen,  her  crown  and  dignity. 

Form  No.  5  9  6  9 . 

(Precedent  in  Rex  v.  Gotley,  Russ.  &  Ry.  84n.)^ 

Shropshire,  to  wit.  The  jurors  [for  our  lord  the  king  upon  their 
oath  present]*  thsit  Richard  Gotley,  late  of  \Holes  Owen,  in  the  county 
of  Salop^^  being  an  evil  disposed  person,  and  not  regarding  the 
statute  in  such  case  made  and  provided,  nor  fearing  the  penalties 

1,  Second  Count. —  In  2  Chit.  PI.  221,  did  abstain  from  prosecuting  and  that 
the  addition  of  a  second  count,  omitting  by  reason  thereof  the  thief  escaped 
the  words  enclosed  by  [  ],  is  suggested,  prosecution  is  unnecessary. 

2.  A  motion  was  made  to  quash  this  3.  This  precedent  was  drawn  under 
indictment  on  the  ground  that  it  did  Stat.  18  Eliz.,  c.  5,^4.  For  other  forms 
not  charge  any  offense,  in  that  it  did  under  English  statutes  see  2  Chit.  Cr. 
not  allege  that  the  accused  desisted  L.  (5th  Amer.  from  2d  Lond.  ed.)  229- 
from  prosecuting  the  felon.  A  convic-  231;  Rex  z/.  Crisp,  i  B.  &  Aid.  282;  Reg. 
tion  under  the  indictment  was,  however,  v.  Best,  5  Moo.  C.  C.  124,  9  C.  &  P.  368, 
sustained,  the  court  holding  that  the  of-  38  E.  C.  L.  159. 

fense  of  compounding  is  complete  when  4.  The  words  enclosed  by  [  ]  will  not 
the  agreement  to  abstain  from  prose-  be  found  in  the  reported  case,  but  have 
cuting  is  ma^de,  and  hence  an  allega-  been  added  to  render  the  form  com- 
tion  in  the  indictment  that  the  accused     plete. 

2  Volume  5. 


6970.  COMPOUNDING  OFFENSES.  5970. 

therein  contained,  heretofore,  to  wit,  on  the  19th  day  of  November^  in 
the  year  of  our  Lord  i8(?4,  with  force  ar>d  arms,  at  Holes  Owen.,  .in  the 
county  of  Salop,  by  and  upon  color  and  pretense  of  a  certain  matter 
of  offense  then  and  there  pretended  to  have  been  committed  by  one 
Edward  Round  against  a  certain  penal  law,  (that  is  to  say)  by  and 
upon  color  and  pretense  that  heretofore,  to  wit,  on  the  30th  day  of 
October,  in  the  year  aforesaid,  a  certain  wagon,  of  which  the  said 
Edward  Round  was  then  the  owner,  having  the  soje  or  bottom  of  the 
fellies  of  the  wheels  of  less  breadth  or  gauge  than  six  inches,  did  pass 
and  was  drawn  upon  a  certain  turnpike  road  leading  to  Birmingham, 
in  the  county  of  War^vick,  with  more  than  four  horses,  to  wit,  with 
six  horses,  contrary  to  the  form  and  effect  of  a  certain  statute  made 
and  passed  in  the  thirteenth  year  of  the  reign  of  his  present  majesty, 
entitled  {setting  out  title),  unlawfully,  wilfully  and  corruptly  did  com- 
pound and  agree  with  the  said  Edward  Round,  who  was  surmised  to 
have  offended  against  the  same  statute  in  manner  aforesaid,  for  the 
said  pretended  offense;  and  did  thereupon  then  and  there,  to  wit,  on 
the  said  19th  day  oi Noirmber,  in  the  year  of  our  Lord  iWJf.  aforesaid, 
at  Holes  Owen  aforesaid,  without  process,  take  of  and  from  the  said 
Edward  Round  a  certain  sum  of  money,  to  wit,  the  sum  of  twa 
guineas,  that  is  to  say,  the  sum  of  two  pounds  and  tivo  shillings,  of 
lawful  money  of  Great  Britain,  and  divers,  to  wit,  three  bank  of  Eng- 
land notes  for  the  payment  of  the  sum  of  one  pound  each,  the  said 
notes  being  then  and  there  of  large  value,  to  wit,  of  the  value  of  three 
pounds  of  like  lawful  money,  as  and  by  way  of  composition  for  the  said 
pretended  offense,  and  in  order  to  prevent  an  action  being  brought 
against  him,  the  said  Edward  Round,  for  and  in  respect  of  the  same, 
without  the  order  or  consent  of  any  or  either  of  his  majesty's  courts 
at  Westminster,  and  without  any  lawful  authority  for  so  doing,  to  the. 
great  hindrance  and  obstruction  of  public  justice,  in  contempt  of  our 
said  lord  the  king,  and  his  laws,  to  the  evil  and  pernicious  example- 
[of  all  others],^  against  the  form  of  the  statute  [in  such  case  made 
and  provided,  and]i  against  the  peace  [of  our  said  lord  the  king,  his 
crown  and  dignity.  ]i 

Form  No.  5970. 

(Ala.  Crim.  Code  (1886),  §  4899,  No.  28.)' 

The  State  of  Alabama, )  ^-       ■.  4.    ^  .,  t      ^  on« 

Dale  county.  f  ^'""''''^  ^°"'^'  ^'^''^'''  t^^"''  ^^^^- 

The  grand  jury  of  said  county  charge  that,  before  the  finding  of 
this  indictment,  y^/i/z  Doe,  knowing  that  one  Richard  Roe  had  been 
guilty  of  the  commission  of  burglary,  took  (or  agreed  to  take)  from  the 
said  Richard  Roe,  money  (<7r  other  property)  to  compound  (or  conceal) 
such  felony  (or  to  abstain  from  any  prosecution  therefor),  against  the 
peace  and  dignity  of  the  State  of  Alabama. 

Randolph  Mason, 
Solicitor  of  the  third  circuit. 

1.  The  words  enclosed  by  []  will  not  2.  Precedent. —  In  Watt  v.  State,  97 
be  found  in  the  reported  case,  but  have  Ala.  72,  the  defendant  was  convicted 
been  added  to  render  the  form  complete,     and   assigned  for  error  that   "the  in- 

3  Volume  5. 


5971.  COMPOUNDING  OFFENSES.  5972. 

Form  No.  5971. 

(Precedent  in  People  v.  Bryon,  103  Cal.  676.)' 
[In  the  Superior  Court  of  the  County  of  Merced^  State  of  California. 
The  People  of  the  State  of  California.,  ^\zAXi\\^  A  ^   ,  .        (       r 

William  ^^r^^Tdefendant.  )     pounding  a  Felony. 

William  Bryon  is  accused  by  the  district  attorney  of  the  said 
county  of  Merced,  by  this  information,  of  the  crime  of  compounding 
a  felony,  committed  as  follows:  On  or  about  the  eleventh  day  of 
December,  i893,  in  the  county  of  Merced  aforesaid]^  one  Maurice 
Hardy  did  commit  the  crime  of  grand  larceny,  a  felony;  that  is  to 
say,  that  at  said  time  and  place  the  said  Maurice  Hardy  did  wilfully, 
unlawfully  and  feloniously  steal  and  take  from  the  person  of  E.  O. 
Mickle,  the  sum  Qi  forty  dollars,  lawful  money  of  the  United  States, 
said  money  being  the  property  of  and  belonging  to  the  said  E.  O. 
Mickle;  that  said  William  Bryon,  at  said  time  and  place,  and  prior  to 
the  filing  of  this  information,  having  knowledge  of  the  commission^ 
of  said  crime  by  said  Maurice  Hardy,  as  aforesaid,  did  take  and 
receive  from  the  said  Maurice  Hardy  the  sum  of  twenty  dollars,  lawful 
money  of  the  United  States,  upon  the  agreement  and  understanding, 
wilfully,  unlawfully  and  feloniously  made  and  entered  into  with  the 
said  Maurice  Hardy,  that  he,  the  said  William  Bryon,  would  com- 
pound and  conceal  the  crime  which  had  been  committed  as  aforesaid 
by  said  Hardy,  contrary  [to  the  form,  force  and  effect  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  people  of  the  state  of  California. 

Dated  the  third  day  of  January,  i  ?>9Jf. 

F.  G.  Ostrander,  District  Attorney 
of  said  County  of  Merced^ 

Form  No.  5972.* 

State  of  Colorado, 
Arapahoe  County. 

Of  the  January  term  of  the  District  Court,  in  the  year  of  our  Lord 
\W8. 

dictment  fails  to  show  the  character  of  yearling,    and,   to  wit,  five  dollars  in 

the  felony  compounded."     It  was  held  money,  to  compound  or  conceal  said 

that  the  indictment  was  drawn  in  sub-  felony,  or  to  abstain  from  any  prose- 

stantial  and  almost  literal  compliance  cution  of  said  felony." 

with    section    4006    of     the    Alabama  1.  This  information  was    held   suffi- 

Criminal  Code  and  with  the  code  form  cient  under  Cal.  Pen.  Code,  §  153.   For 

jfiven  in  the  text,  and  was  not  liable  to  a  list  of  states  having  similar  statutes 

the   demurrer   interposed,    which   was  see  infra,  note  r,  p.  5. 

rightly   overruled.      The     indictment,  2.  The  words   and    figures   enclosed 

omitting  the  formal  parts,  was  as  fol-  by  [  ]  will  not  be  found  in  the  reported 

lows  :  case,   but  have  been   added  to  render 

"  IVheeler  Watt,  then  and  there  hav-  the  form  complete, 

ing  knowledge  of  the  commission  of  a  3.  "Actual." — It  is   not  necessary  to 

felony,  to  wit,  that  Milton  Cooper,  alias  charge  that  the  defendant  had  knowl- 

Matt  Cooper,  was  then  and  there  guilty  edge  of  the   "actual"  commission  of 

of  grand  larceny,    the    same    being    a  the  crime,  although  the  word  "actual" 

felony  under  the  laws  of  Alabama,  did  is  used  in  the  statute.    People  v.  Bryon, 

take  or  receive  from  the   said   Milton  103  Cal.  676. 

Cooper,  alias  Matt  Cooper,  one  cow  and  4.  This  form   is  drawn  under  Mills' 

4  Volume  5. 


;;}ss. 


6973.  COMPOUNDING  OFFENSES.  5973. 

The  grand  jurors  chosen,  selected  and  sworn  in  and  for  the  county 
of  Arapahoe^  in  the  name  and  by  the  authority  of  the  people  of  the 
state  of  Colorado,  upon  their  oaths,  present  that  one  Fichard Roe,  here- 
tofore, to  wit,  on  the  first  day  of  December,  in  the  year  of  our  Lord 
i8S7,  at  the  city  of  Denver,  in  the  county  of  Arapahoe  aforesaid,  did 
then  and  there  feloniously  steal,  take  and  carry  away  otic  diamond 
ring  of  the  value  of  one  hundred  dollars,  of  the  property  of  one  Samuel 
Short;  and  that  John  Doe,  late  of  said  county  of  Arapahoe,  afterward, 
to  wit,  on  the^frj/day  ol  January,  in  the  year  of  out  Lord  \W8,  at  the 
city  of  Denver,  and  county  of  Arapahoe  aforesaid,  did  then  and  there 
unlawfully  and  wilfully  take  of  and  from  the  said  Richard  Roe  money, 
to  wit,  fifty  dollars  {or  otherwise  describe  the  thing  taken,  as  goods,  chat- 
tels, lands,  or  other  reward  or  promise  thereof,  to  suit  the  facts'),  to  com- 
pound the  said  criminal  offense,  so  as  aforesaid  committed  by  the  said 
Richard  Roe,  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  people  of  the 
state  of  Colorado. 

Form  No.  5973.' 

State  of  Maine. 

Kennebec,  ss.  At  the  Superior  Court  begun  and  held  at  Augusta^ 
within  and  for  said  county  of  Kennebec,  on  the  first  Tuesday  of  Decem- 
ber, in  the  year  of  our  Lord  eighteen  hundred  and  ninety-seven. 

The  jurors  for  said  state,  upon  their  oath  present,  that  one  Richard 
Roe,  on  the  first  day  of  November,  in  the  year  of  our  Lord  eighteen 
hundred  and  ninety-seven,  in  the  county  of  Kennebec,  did  then  and 

Anno.  Stat.  Colo.  (1891),  §  1293.     Simi-  Minnesota.  —  Stat.    (1894),    g§    6397, 

lar  statutes  may  be  found  in  the  follow-  7254. 

ing  states,  to  wit:  Mississippi.  —  Anno.  Code  (1892),  §§ 

Georgia.  — 3  Code  (1895),  §  323.  987,  988. 

Illinois. — Starr    &    C.    Anno.    Stat.  Missouri.  —  Rev.  Stat.  (1889),  §§3681, 

(1896),  p.  1249,  par-  92-  3682. 

Nebraska. — Comp  Stat. (1897),  §6841.  Montana.  —  Pen.  Code  (1895),  §5  280. 

Ohio.  —  Bates'   Anno.   Stat.  (1897),  §  North  Dakota. — Rev.   Codes  (1895), 

6901.  §§  6997,  8061. 

Wyoming.  —  Rev.  Stat.  (1887),  §  959.  Oregon.  —  Hill's  Anno.  Laws  (1892), 

1.  This   form    is   drawn    under    Me.  §  1839. 

Rev.  Stat.  (1883),  c.  122,  §  17.  Pennsylvania. — Bright.     Pur.     Dig, 

Similar    statutes    are   found   in    the  (1894),  p.  403,  t;  14. 

states  and  territories  following,  to  wit:  Rhode  Island.  —  Gen.  Stat.  (1896),  c. 

Arizona.  —  Pen.  Code  (1887),  §  236.  276,  5^  20. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894),  South   Dakota.  —  Dak.    Comp.    Laws 

§  14SS.  (1887),  §§  6385,  7262. 

California.  —  Pen.  Code  (1897),  §  153.  Tennessee.  —  Code    (1896),    §§    66go— 

Florida.  —  Rev.  Stat.  (1892),  §  2592.  6692. 

Indiana.  —  Horner's  Stat.  (1896),  g§  Texas.  —  Pen.  Code  (1895),  art.  29i» 

2011,  2012.  Vermont. — Stat.  (1894),  §  5165. 

/<7wa.— Code  (1897),   §§   4889,    4890,  rrrj'iWa. —Code  (1887),  §  3760. 

5301.  Washington.  —  Ballinger's        Anno. 

Kansas.  — 2  Gen.  Stat.  (1897),  p.  330,  Codes  &  Stat.  (1897),  §  7200. 

g§  185,  186.                                           *  Wisconsin.  —  Sanb.  &  B.  Anno.  Stat- 

Massachusetts.  —  Pub.  Stat.  (1882),  c.  (1889),  §  4501. 

205,  §  17.  Precedent.  —  For      an      information 

Michigan.  —  How.  Anno.  Stat.  (1882),  drawn    under    the    California    statute 

§  9254.  cited  above  see  supra.  Form  No.  5971. 

5  Volume  5. 


5974.  COMPOUNDING  OFFENSES.  5974. 

there  unlawfully,  wilfully  and  feloniously  steal,  take  and  carry  away 
the  sum  oi  five  hundred  CioWzx^.,  lawful  money  of  the  United  States, 
of  the  property  of  one  Samuel  Short;  and  that  John  Doe,  of  Augusta,  in 
the  said  county  of  Kennebec,  laborer,  at  Augusta,  in  the  said  county 
of  Kennebec,  afterward,  to  wit,  on  the  tenth  day  of  Noi>ember,  in  the 
year  of  our  Lord  eighteen  hundred  and  ninety-secen,  then  and  there 
having  knowledge  of  the  commission  of  the  said  offense,  so  as  afore- 
said committed  by  the  said  Richard  Roe,  did  then  and  there  unlaw- 
fully and  wilfully  take  of  and  from  the  said  Richard  Roe  a  valuable 
consideration,  to  wit,  the  sum  of  07ie  hutidred  dollars,  lawful  money  of 
the  United  States,  with  an  agreement  and  understanding  then  and 
there  unlawfully  and  wilfully  made  and  entered  into  by  the  said 
John  Doe  with  the  said  Richard  Roe,  that  he  the  %a.\d  /ohfi  Doe  would 
compound  and  conceal  the  said  offense  so  as  aforesaid  committed  by 
the  said  Richard  Roe  (or  would  not  prosecute  the  said  Richard  Roe  by 
reason  of  or  would  not  give  evidence  of  the  said  off ense  so  as  aforesaid  com- 
mitted by  him,  the  said  Richard  Roe,  but  would  compound  and  conceal  the 
same),  against  the  peace  of  said  state  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided. 

Jacob  E.  Corbett,  Foreman. 
Randolph  Mason,  County  Attorney. 

Form  No.  5974. 

(Precedent  in  State  v.  Quinlan,  40  Minn.  56.)' 

[The  District  Court  for  the  County  of  Hennepin  and  State  of 
Minnesota.^ 

The  State  of  Minnesota  ) 

against  >•  Indictment. 

Michael  Quinlan  and  Nathaniel  W.  King.  ) 

Michael  Quinlan  and  Nathaniel  W.  King  are  accused  by  the  grand 
jury  of  the  county  of  Hennepin,  in  the  state  of  Minnesota,  by  this 
indictment,  of  the  crime  of  compounding  a  crime,  committed  as 
follows:  The  said  Michael  Quinlan  and  Nathaniel  IV.  King  did,  on  the 
20th  day  of  October,  a.  d.  jS87,  at  the  city  oi Minneapolis,  in  said  Hen- 
nepin county,  wilfully,  unlawfully  and  wrongfully  take  from  one  Got- 
lieb  B eisstvinger  mox\e.y,  to  wit,  otie hundred doWsiVS,,  genuine  and  current 
money  of  the  United  States  of  America,  a  more  particular  description 
of  which  said  money  is  to  the  grand  jury  unknown,  upon  an  agree- 
ment then  and  there  made  by  the  said  Michael  Quinlan  and  Nathaniel 
W.  King  with  said  Gotlieb  Beisswinger  to  withhold  evidence  of  a 
crime,  to  wit,  the  crijne  of  selling  [spirituous]^  liquor  without  first 
having  obtained  license  therefor;  which  said  crime  had  heretofore, 
to  wit,  on  the  12th  day  of  September,  a.  d.  i8<97,  been  committed  by 
Christ  Snyder  and  Fred  Vongard,  in  this:  that  the  said  Christ  Snyder  and 

1.  This  form  is  drawn  under  Minn,  been  added  to  render  the  form  complete. 
Stat.  (1894),  §  6397.  For  a  form  drawn  3.  The  word  "spirituous"  has  been 
under  a  similar  statute  in  New  York  inserted  to  supply  an  omission  in  this 
see  infra.  Form  No.  5975.  part  of  the  indictment,  "  selling  liquor  " 

2.  The  words  enclosed  by  [  ]  will  not  without  a  license  being  no  offense  un- 
be  found  in  the  reported  case,  but  have  der  the  Minnesota  statutes. 

6  Volume  5. 


5975.  COMPOUNDING  OFFENSES.  5975. 

the  said  Fred  Vongard}  did,  on  the  12th  day  of  September,  a.  d.  i857,  in 
said  Hennepin  county,  wilfully,  unlawfully  and  wrongfully  sell  spiritu- 
ous liquor,  to  wit,  one  glass  of  whiskey,^  to  one  N.  H.  King,  without 
first  having  obtained  license  therefor, —  said  Christ  Snyder  and  Fred 
Vongard  not  being  then  and  there  a  regular  licensed  druggist,  dis- 
pensing said  liquor  in  filling  a  prescription  made  by  a  regular,  repu- 
table and  duly  licensed  physician  in  the  practice  of  his  profession; 
said  crime  not  being  then  and  there  a  case  where  a  compromise  is 
allowed  by  law.  Contrary  to  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  state  of  Minnesota. 

Dated  at  Minneapolis^  in  said  Hennepin  county,  this  M  day  of  March^ 
A.  D.  i8S8. 

J.  A.  Wolverton, 
Foreman  of  the  Grand  Jury. 

Form  No.  59  75-* 

Supreme  Court,  County  of  Kings. 

The  People  of  the  State  of  New  York 

against 

John  Doe. 

The  grand  jury  of  the  county  of  Kings,  by  this  indictment,  accuse 
John  Doe  of  the  crime  of  compounding  a  crime,  committed  as  follows; 

The  said  John  Doe,  on  \\\t.  first  day  of  December,  iS97,  at  the  city 
of  Brooklyn,  in  this  county,  did  feloniously,^  unlawfully  and  wilfully 
take  of  and  from  one  Richard  Roe  money,  to  wit,  the  sum  of  one 
hundred  dollars  {or  other  property,  gratuity  or  reward,  or  engagement  or 
promise  therefor,  as  the  case  may  be'),  upon  an  agreement  and  under- 
standing then  and  there  made  and  entered  into  by  the  said  John 
Doe  with  the  said  Richard  Roe  to  compound  (or  conceal  or  compound 
and  conceal  or  to  abstain  from  a  prosecution  of  the  said  Richard  Roe  for 
and  by  reason  of  or  to  withhold  evidence  <?/)  a  crime  (or  a  violation  of 
statute),  to  wit,  the  crime  of  arson  in  the  first  degree,  which  said  crime 
had  been  theretofore  committed  by  the  said  Richard  Roe,  in  this 
that  the  said  Richard  Roe  on  the  frst  day  of  November,  i897,  about 
elei'en  o'clock  in  the  night  of  said  day,  at  the  city  of  Brooklyn  afore- 
said, did  feloniously,  unlawfully,  wilfully  and  maliciously  set  fire  to 
and  burn  a  certain  inhabited  building  there  situate,  in  which  there  was 
at  the  time  a  human  being,  namely,  Samuel  Short,  and  being  then 
and  there  the  property  of  another,  to  wit,  of  the  said  Samuel  Short', 
which  said  crime  was  not  then  and  there  a  case  where  a  compromise 
is  allowed  by  law. 

Randolph  Mason, 
District  Attorney  of  the  County  of  Kings. 

1.  The  defendants  having  been  con-  2.  New    York.  —  Pen.    Code,   §    125, 

victed  on  this  indictment  an  order  re-  Birds.   Rev.   Stat.  (1896),   p.    474,  §    i. 

fusing   a   new    trial    was   reversed   on  See  also  a  similar  statute  in  Minnesota 

appeal,  on    the  ground  that   there  was  (Minn.  Stat.  (1894),  §  6397)  and  a  prece- 

a  fatal  variance  between  the   pleading  dent    drawn     under    that    statute     in 

and  the  proof,  the  proof  being  that  Got-  Form  No.  5974,  supra. 

lieb  Beisswinger,  who  was  also  known  3.  "Feloniously."  —  The  word  "feloni- 

as  Christ  Snyder,  and  "  William  Bun-  ously"   is  to  be   used  only   where  the 

gard "  had   sold  one  glass  of  "beer'"  offense    of    compounding    is    made   a 

without  a  license.  felony  by  the  statute. 

7  Volume  5. 


5976.  COMPOUNDING  OFFENSES.  5976. 

2.  After  Prosecution  Beg-un.^ 

Form  No.  5976. 

(Precedent  in  2  Chit.  Cr.  L.  220.) 

(^Commencing  as  in  Form  No.  5967,  and  continuing  down  to  *)  one 
John  Doe  in  his  own  proper  person  came  before  John  Foe,  esquire, 
then  and  yet  being  one  of  the  justices  of  our  said  lord  the  king, 
assigned  to  keep  the  peace  of  our  said  lord  the  king,  in  and  for  the 
county  of  Middlesex,  and  also  to  hear  and  determine  divers  felonies, 
trespasses  and  other  misdemeanors  in  the  said  county  committed, 
and  then  and  there  upon  his  oath  did  charge  and  accuse  one  Mary 
Jones,  the  wife  oi  Feter  Jofies,  with  feloniously  stealing,  taking  and 
carrying  away  one  silver  spoon  and  two  silk  handkerchiefs,  of  the 
goods  and  chattels  of  the  said  John  Doe,  upon  which  the  said  John 
Foe  then  and  there  issued  out  his  warrant,  under  his  hand  and  seal 
made  in  due  form  of  law,  for  the  apprehending  and  taking  the  said 
Mary  Jones  to  answer  and  be  examined  of  and  concerning  the  felony 
aforesaid,  on  her  as  aforesaid  charged,  and  that  afterwards,  to  wit, 
on  the  twentieth  day  of  February  aforesaid,  the  said  Mary  Jones,  the 
wife  of  Feter  Jones  aforesaid  for  the  said  felony,  and  by  virtue  of  the 
said  warrant,  was  taken  and  arrested,  and  then  and  there  was 
brought  before  the  said  John  Foe,  the  justice  aforesaid,  and  then  and 
there  before  the  same  justice,  of  and  concerning  the  same  felony, 
was  examined,  upon  which  the  said  John  Foe,  the  justice  aforesaid, 
did  then  and  there  make  a  certain  warrant  under  his  hand  and  seal  in 
due  form  of  law,  directed  to  the  keeper  of  Newgate  or  his  deputy, 
and  thereby  commanding  the  aforesaid  keeper,  or  his  deputy,  to 
receive  into  his  custody  the  body  of  the  said  Mary  Jones,  so  charged 
with  such  felony  as  aforesaid,  and  her  in  custody  safely  to  keep, 
until  she  should  be  discharged  by  due  course  of  law.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  John  Doe,  late  of  the  parish  of  St.  Faul,  Covent  Garden,  in 
said  county  of  Middlesex,  and  Richard  Roe,  late  of  said  parish,  well 
knowing  the  premises,  and  each  of  them  well  knowing  the  same,  but 
contriving  and  intending  unlawfully  and  unjustly  to  pervert  the  due 
course  of  law  in  this  behalf,  and  to  cause  and  procure  the  said  Mary 
Jones  for  the  felony  aforesaid  to  escape  with  impunity,  afterwards, 
to  wit,  on  the  twenty-first  day  of  February  aforesaid,  at  the  parish 
aforesaid,  unlawfully  and  for  wicked  gain  sake,  did  take  upon  them- 
selves to  compound  the  said  felony  on  the  behalf  of  the  said  Mary 
Jones  and  then  and  there  did  exact,  receive  and  have  of  the  said 
Feter  Jones,  the  husband  of  the  said  Mary  Jones,  t7venty-six  shillings, 
in  moneys  numbered,  for  and  as  a  reward  for  compounding  the  said 
felony,  and  desisting  from  all  further  prosecution  against  the  said 

1.  Precedents.  —  See  another  form  in  2  in  4  Wentw.  PI.  329,  for  compounding 

Chit.  Cr.  L.  221,  against  third  persons  an   information  in   the   exchequer   for 

for  prevailing  upon  a  woman,  on  whom  not  having  the  words  upon  the  door  of 

rapes    had    been   committed,    to   com-  the  house,  agreeable  to  the   Distillers 

pound   the   same   with    the    offenders,  act.       See   also    Davis*    Precedents   of 

after  the  offenders  had  been  imprisoned  Indictments,  pp.  97,  98. 
and  were  aVjout  to  be  prosecuted;  and 

8  Volume  5. 


6977.  COMPOUNDING  OFFENSES.  h^ll. 

Mary  Jones  for  the  felony  aforesaid,  to  the  great  hindrance  of  justice, 
to  the  evil  example  of  all  others,  in  contempt  of  our  said  lord  the 
king,  and  his  laws,  and  against  the  peace  of  our  said  lord  the  king, 
his  crown  and  dignity. 

Form  No.  5977.' 

In  the  Marion  Circuit  Court  of  IncUajia^  of  the  January  Term,  a.  d. 
\W8. 

State  of  Indiana  )  " 

against  > 

John  Doe.        ) 

The  grand  jury  of  the  county  of  Marion^  upon  their  oath  do  pre- 
sent: "WidX  John  Doe.,  on  the  tenth  day  of  November.,  a.  d.  i857,  at 
the  county  of  Marion  aforesaid,  came  before  Jacob  E.  Corbett,  a 
justice  of  the  peace  of  said  county,  duly  elected,  commissioned  and 
qualified  to  execute  and  perform  the  duties  of  said  office,  and  did 
then  and  there,  before  said  justice,  make  complaint  in  writing  and 
upon  oath,  in  which  said  complaint  the  sa.\d  John  Doe  did  then  and 
there  upon  his  oath  charge  one  Richard  Hoe  with  then  lately  before 
feloniously  stealing,  taking  and  carrying  away  one  diamond  ring  of 
the  value  of  one  hundred  dollars,  of  the  property  of  the  said  John  Doe,^ 
upon  which  said  complaint  the  said  Jacob  E.  Corbett  then  and  there 
issued  his  warrant  in  due  form  of  law  for  the  arrest  of  the  said  Rich- 
ard Roe  to  answer  to,  and  be  examined  and  dealt  with  for  the  felony 
aforesaid  as  to  law  and  justice  might  appertain;  and  afterwards,  to 
wit,  on  the  day  and  year  aforesaid,  at  the  county  aforesaid,  by  virtue 
of  said  warrant  and  for  the  felony  aforesaid,  the  said  Richard  Roe 
was  duly  arrested  and  taken  and  carried  before  the  said  Jacob  E. 
Corbett,  justice  as  aforesaid,  and  duly  examined  and  heard  by  the 
said  Jacob  E.  Corbett,  touching  and  concerning  the  felony  aforesaid, 
whereupon  the  said  Jacob  E.  Corbett,  justice  as  aforesaid,  did  then 
and  there  make  a  certain  warrant,  under  his  hand  and  seal,  in  due 
form  of  law,  directed  to  the  keeper  of  the  common  jail  in  said  county 
of  Marion,  thereby  commanding  the  said  keeper  or  his  deputy  to 
receive  into  his  custody  the  body  of  the  said  Richard  Roe,  and  him  in 
custody  safely  to  keep  until  he  should  be  discharged  by  due  course  of 
law;  and  that  afterwards,  to  wit,  on  \.\vt.  first  day  of  December,  in  the 
said  year,  and  while  said  cause  was  pending,  at  the  county  aforesaid, 
the  said  John  Doe,  well  knowing  the  premises,  did  unlawfully  and 
wilfully  take  and  receive  from  the  said  Richard  Roe  the  sum  oi  fifty 
dollars  upon  an  agreement  and  understanding,  then  and  there  made 
and  entered  into  by  the  said  John  Doe  with  the  said  Richard  Roe,  to 

1.  This  form  is  drawn  under  Horner's  Ohio.  —  Bates'  Anno.  Stat.   (1897),  § 

Stat.    Ind.  (i8g6),  §  2013.     For  similar  6901. 

statutes  see  as  follows:  South  Dakota.  —  Dak.    Comp.    Laws 

Georgia.  — -i  Code  (1895),  g  324-  (18S7),  §  6385. 

Minnesota.  —  Stat.  (1894),  §  6397.  2.  Under  the  Ohio  statute  it  has  been 

New  York.  — Pen.  Code,  §125  (Birds,  held   not  necessary  to  aver   in  the  in- 

Rev.  Stat.  (1896),  p.  474,  §  i).  dictment  or  prove  on  the  trial   that  a 

North  Dakota.  —  Rev.   Codes  (1895),  crime  had  been  committed.     Fribly  v, 

§  6998.  State,  42  Ohio  St.  205. 

9  Volume  5. 


5978.  COMPOUNDING  OFFENSES.  5979. 

compound  (or  discontinue  or  delay  or  withhold  evidence  in  aid  of  ^  the 
said  prosecution  then  so  pending  for  the  said  crime  as  aforesaid  (or 
to  encourage  or  procure  the  absence  of  witnesses  or  other  testimony  on 
the  examination  or  trial  of  the  said  charge^  contrary  to  the  form  of  the 
statute  in  such  cases  made  and  provided,  and  against  the  peace  and 
dignity  of  the  state  of  Indiana. 

Randolph  Mason.,  Prosecuting  Attorney. 

II.  COMPROMISE  BY  LEAVE  OF  COURT. 

1.  Acknowledgment  of  Satisfaction. 


''  \  ss. 


Form  No.  S  9  7  8 . 

(Cook's  Code  Crim.  Proc.  N.  Y.  (1891),  p.  473,  No.  250.V 

State  of  New  York, 
County  of  Suffolk. 

I,  John  Doe,  of  the  town  of  Huntington.,  county  of  Suffolk,  State  of 
New  York,  do  hereby  acknowledge  to  have  received  oi  Richard  Roe, 
of  the  same  place,  the  sum  of  one  hundred  dollars  in  full  satisfaction 
for  the  injury  to  me  at  said  town  of  Huntington,  on  the  third  day  of 
January,  i898,  by  said  Richard  Roe,  in  assaulting  and  beating  me,  and 
for  which  assault  and  battery  I  made  complaint,  on  oath,  on  the  ffth 
day  o{  January,  i8P<9,  before  Abraham  Kent,  one  of  the  justices  of  the 
peace,  and  which  said  complaint  is  now  pending  and  undetermined; 
and  I  desire  that  no  further  proceeding  be  had  against  said  Richard  Roe. 

John  Doe. 

County  of  Suffolk,  ss. 

I  hereby  certify  that,  on  the  sixth  day  oi  January,  iS98,  before  me 
personally  appeared  John  Doe,  of  the  town  of  Huntington,  in  said 
county,  personally  known  to  me  to  be  the  same  person  mentioned  in 
and  who  executed  the  foregoing  acknowledgment  of  satisfaction; 
and  he  acknowledged  the  execution  of  the  same. 

Abraham  Kent,  Justice  of  the  Peace. 

2.  Warrant  to  Discharge  Defendant  from  Custody. 

Form  No.  5979. 
(Cook's  Code  Crim.  Proc.  N.  Y.  (1891),  p.  474,  No.  251.)* 

State  of  Ne7v  York,  ) 
County  of  Suffolk,     j"  ^^' 

In  the  Name  of  the  People  of  the  State  of  New  York. 
To  the  keeper  of  the  common  jail  of  said  county: 

\.  New  York.  —  Pen.    Code,    §    663,  Michigan.  —  How.  Anno.  Stat.  (1882), 

as  amended  Laws  (1884),  c.  63  (Birds.  §  9481. 

Rev.   Stat.  (1896),    p.   474,  §    3);    Pen.  Mississippi.  —  Anno.   Code  (1892),  § 

Code,  ^  664,  as  amended   Laws  (1884),  1457. 

c.    63  (Birds.  Rev.  Stat.  (1896),  p.  475,  Montana.  —  Pen.     Code    (1895),    §§ 

§  4)-  2540-2542. 

See  also  similar  statutes  as  follows:  Washington.  —  2    Hill's   Anno.   Stat. 

Iowa.  —  Code  (1897),  §§  5622-5625.  (1891),  §§  1292-1294,  1598. 

10  Volume  5. 


6980.  COMPOUNDING  OFFENSES.  5980. 

Whereas,  John  Doe,  upon  whose  oath  Richard  Roe  was  arrested  for 
assault  and  battery  against  the  said  John  Doe,  and  was  duly  commit- 
ted to  your  charge  on  the  fifth  day  oi  January,  iS98,  and  who  now 
remains  under  your  care; 

And  whereas,  the  said  John  Doehas  duly  executed  an  acknowledg- 
ment of  satisfaction  for  said  assault  before  me; 

Now,  this  is  to  command  you  forthwith  to  discharge  the  said  Richard 
Roe  from  your  custody  in  said  jail,  unless  detained  upon  some  other 
warrant  of  commitment. 

Dated  at  Northport,  in  the  town  of  Huntington,  this  sixth  day  of 
January,  i898. 

Abraham  Kent,  Justice  of  the  Peace. 

8.  Order  Discharging  Recognizance. 

Form  No.  5980. 

(Cook's  Code  Crim.  Proc.  N.  Y.  (1891),  p.  474,  No.  252.)* 

County  of  Suffolk,  ss. 

The  within  named  complainant,  John  Doe,  having  this  day  appeared 
before  xnt,  Abraham  Kent,  a  justice  of  the  peace  of  the  county  of 
Suffolk,  and  acknowledged  in  writing  that  he  had  received  full  satis- 
faction, of  the  within  named  Richard  Roe,  for  the  injury  complained 
of,  I  do  hereby  order  the  within  recognizance  to  be  discharged. 

Dated  at  Northport,  in  the  town  of  Huntington,  this  sixth  day  of 
January,  i898. 

Abraham  Kent,  Justice  of  the  Peace. 

1.  See  supra,  note,  i,  p.  10. 

11  Volume  5. 


COMPROMISE. 

By  Thomas  E.  O'Brien, 

I.  OFFER  TO  Compromise  by  allowing  Judgment,  12. 

1.  The  Offer,  12. 

a.  By  Party,  13. 

(i)  Generally,  13. 

(2)  In  Justice' s  Court,  16. 

(3)  In  Appellate  Court,  17. 

(a)  On  Notice  of  Appeal,  17, 

(J?)  In  Action  Pending  in  Appellate  Court^  18. 

b.  By  Agent,  18. 

c.  By  Attorney,  19. 

2.  The  Acceptance,  21. 

a.  Generally,  21. 

b.  In  Justice' s  Court,  23. 

c.  In  Appealed  Cases,  23. 
8.    The  Judgment,  23. 

a.  Generally,  23. 

b.  In  Justice' s  Court,  24. 

(i)   Upon  Acceptance  of  Offer,  24. 

(  2  )   Upon  Refusal  of  Offer  or  Failure  to  Accept,  2  5 . 

IL  Offer  to  be  defaulted,  25. 

1.  By  Party,  25. 

2.  By  Agent  or  Attorney,  26. 

III.  COMPROMISE  AGREEMENTS,  26. 

1.  The  Agreement,  26. 

2.  Action  upon  the  Agreement,  27. 

3.  The  Setting  Up  the  Agreement  in  Defense,  28. 

CROSS-REFERENCES. 

For   Forms  of  Compromise  of  Criminal  Actions,  see  the  title  COM- 
POUNDING OFFENSES,  ante.  Forms  Nos.  6978  to  5980. 

I.  OFFER  TO  COMPROMISE  BY  ALLOWING  JUDGMENT. 

1.  The  Offer.i 

1.  Offer  to  Confess  Judgment.  —  For  forms  relating  to  offers  to  confess  judgments 
see  the  title  Confession  of  Judgment,  post,  p.  46  et  seq. 

12  Volume  5. 


5981. 


COMPROMISE. 


5981. 


a.  By  Party. 
(1)  Generally. 
Form  No.  5981.' 


Supreme  Court,  Albany  County. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

1.  Statutory  Provisions. — This  is  the 
proper  form  of  offer  after  action  is  com- 
menced. In  New  York  the  defendant 
may,  before  trial,  serve  upon  plaintiff's 
attorney  a  written  ofifer  to  allow  judg- 
ment to  be  taken  against  him  for  the 
sum  or  property  or  to  the  effect  therein 
specified  with  costs.  If  the  plaintiff, 
within  ten  days  thereafter,  serves  upon 
the  defendant's  attorney  a  written  no- 
tice that  he  accepts  the  ofifer,  he  may 
file  the  summons,  complaint,  and  ofifer 
with  proof  of  acceptance,  and  thereupon 
the  clerk  must  enter  judgment  accord- 
ingly. If  notice  of  acceptance  is  not 
thus  given  and  the  plaintifif  fails  to  ob- 
tain a  more  favorable  judgment,  he 
cannot  recover  his  costs  from  the  time 
of  the  ofifer,  but  must  pay  the  costs  from 
that  time.  Code  Civ.  Proc,  §  738, 
as  amended  Laws  (1877),  c.  1 16;  Birds. 
Rev.  Stat.  (N.  Y.  1896),  p.  2198,  §  3.  p. 
1780,  §  32  (applying  to  justices'  courts). 

Similar  or  analogous  statutes  exist  in 
the  following  states: 

Arkansas.  —  Sand.  &  H.  Dig.  (l 894),  t^ 

5900- 

California.  —  Code  Civ.  Proc.  (1897), 

§997- 

Idaho.  —Rev.  Stat.  (1887),  §  4870. 
Indiana. — Horner's    Stat.    (1896),    § 

514. 
Iowa.  —  Code  (1897),  §  3819. 
Kansas. —  2  Gen.  Stat.  (1897),  c.  95,  § 

445- 

A'^«/«f >{■_;'.— Bullitt's  Civ.  Code  (1895), 
§634. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§  7372. 

Minnesota.— 'i>xz.\..  (1894),  §  5405,  § 
4976  (in  justices'  courts). 

Missouri.  —  Burns'  Anno.  Prac.  Code 
(1896),  §  565. 

Montana.  —  Code  Civ.  Proc.  (1895),  § 
1800. 

Nebraska.— Com^.  Stat.  (1897),  §  6157, 

Nevada.  —  Gen.  Stat.  (1885),  §  3397. 

New  Mexico.  —  Laws  (1897),  c.  73,  § 
118. 

North  Carolina.  —  Code  (1883),  g  573. 

1 


North  Dakota.  —  Rev.  Codes  (1895),  § 

5639- 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
5140. 

Oklahoma.  —  Stat.  (1893),  c.  66,  §  539. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
c.  4,  §  520. 

South  Carolina. — 2  Rev.  Stat.  (1893), 
§386. 

South  Dakota. — Comp.  Laws  Dak. 
(1887),  §  5246. 

Utah.  —  Rev.  Stat.  (1898),  §  3217. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §i5  2789,  4269. 

IVyoming.  —  Rev.  Stat.  (1887),  §  2527. 

Connecticut. — In  all  actions  on  con- 
tract or  for  the  recovery  of  money  only, 
defendant  may,  before  trial,  file  with 
the  clerk  a  written  notice,  signed  by 
himself  or  attorney,  directed  to  the 
plaintiff  or  his  attorney,  offering  to  al- 
low plaintiff  to  take  judgment  for  a 
sum  named  in  said  notice,  etc.  Gen. 
Stat.  (1888),  ^§  1057-1059;  §684  (relat- 
ing to  justices'  courts). 

In  actions  before  the  superior  court, 
court  of  common  pleas,  or  district 
court,  or  any  city  court,  the  plaintiff 
may,  within  ten  days  after  being  noti- 
fied by  the  defendant  of  the  filing  of 
such  offer,  file  with  the  clerk  of  the 
court  a  written  notice,  signed  by  him- 
self or  his  attorney,  that  he  accepts 
said  ofifer;  and  such  notice  being  filed 
the  court  shall  render  judgment  against 
the  defendant.  Conn.  Laws  (1897),  c. 
180,  §  3;    .     . 

Mississippi.  —  Defendant,  in  any  per- 
sonal action,  except  actions  for  assault 
and  battery,  false  imprisonment,  libel, 
slander,  malicious  arrest  or  prosecu- 
tion, criminal  conversation  or  seduc- 
tion, may  ofifer  with  his  plea  or  in 
writing  afterward,  before  trial,  and  pay 
into  court  a  sum  of  money  by  way  of 
compensation  or  amends,  and  may 
plead  that  the  sum  is  sufiicient  to  sat- 
isfy the  plaintifif  in  respect  to  the  cause 
of  action  mentioned.  If  the  plaintiff 
accept  same,  judgment  shall  be  entered 
3  Volume  5. 


5981. 


COMPROMISE. 


5981. 


The  above  named  defendant  Richard Roe"^  hereby  offers  to  allow 
judgment  to  be  taken  against  him  and  in  favor  of  the  above  named 
plaintiff  yt7<4«  Doe  in  the  above  action  now  pending^  in  this  court  for 
the  sum  of  three  hundred  dollars  {and  if  interest  is  intended  add  "  with 
interest^  from  the  first  day  oi  July,  iS97";  or  say  "for  the  recovery 
of  the  following  described  property,"  describing  it;  or  say  "to  the 
effect,"  specifying  for  what  the  judgment  may  be  taken),^  together  with 


therefor  with  costs,  and  if  plaintiff  fails 
so  to  do,  and  fails  to  recover  more  than 
the  sum  so  offered,  he  shall  pay  all 
costs  accruing  after  such  offer.  Anno. 
Code  (1892),  I  713. 

Precedents  —  Indiana,  —  In  Harris  v. 
Dailey,  16  Ind.  184  : 
^^ Samuel  F.  Dailey  \  In  the  Grant   Cir- 
V.  >•        cuit  Court, 

Noah  Harris.       )  Spring 'Y&xvn,!?!^ 8. 

The  plaintiff  in  the  above  entitled 
cause  will  take  notice  that  I  hereby  offer 
to  allow  judgment  to  go  against  me  in 
said  cause  for  $jo6. 70  and  costs.  April 
S,  iS/cP.  Noah  Harris." 

Nebraska.  —  In  Ossenkop  v.  Akeson, 
15  Neb.  622  : 

"To  Peter  Akeson:  I  hereby  offer 
you  judgment  against  me  in  the  sum 
of  twenty  dollars  and  costs  to  this  time 
in  the  action  now  pending  between  us 
before  Hon.  J.  W.  Johnson,  county 
judge  of  Cass  County,  Nebraska. 

[  William  Ossenkopi\ 

Delivered  to  Peter  Akeson,  June  6th, 
1^82. 

IVillia m  Ossen kop." 

Ohio.  —  Notice  in  writing  served  on 
plaintiff  or  his  attorney  by  defendant, 
to  the  effect  that  the  defendant  does 
then  offer  to  confess  judgment  in  the 
action  for  a  sum  therein  named  and 
costs  to  that  date,  should  be  regarded 
as  an  offer  to  allow  judgment  within 
the  meaning  of  the  Ohio  Code.  Adams 
V.  Phifer,  25  Ohio  St.  301,  The  offer 
in  this  case  was  as  follows  : 


*^  Stephen  Phifer 

and 

Joseph  Plowman 

against 

Eli  //.  Adams 

and 
J.  C.  Davidson. 


Madison  Common 
Pleas,  No.  77^0. 

The  plaintiffs  are 
hereby  notified  that 
the  defendants  offer 
to  confess  judg- 
ment   in    favor   of 


the  plaintiffs  for  the  sum  of  three  hun- 
dred and  Jifty  dollars,  and  costs  of  suit 
to  this  date. 

Goode  &'  Bowman, 
Defendant's  Attorneys." 
1.  To  Be  Made  by  All  Defendants.  —  The 
offer  must  come  from  all  the  defendants 
or  their  common  attorney.     The  plain- 
tiff's right  is  to  have  judgment  on  the 


submitted  offer  in  the  pending  action, 
and  consequently  against  all  whom  he 
has  sued,  and  unless  the  offer  is  com- 
mensurate with  this  right  it  is  unavail- 
ing. Williamson  v.  Lock's  Creek  Ca- 
nal Co.,  84  N.  Car.  629  ;  Binney  v.  Le 
Gal,  19  Barb.  (N.  Y.)  592  ;  Schneider 
V.  Jacobi,  I  Duer  (N.  Y.)  694. 

One  partner  has  no  power  to  make  the 
offer  to  the  plaintiff  to  take  judgment 
against  himself  and  his  copartners 
without  some  evidence  from  which  it 
is  to  be  inferred  that  his  copartners  au- 
thorized him  to  make  the  offer  or  as- 
sented to  it.  Binney  v.  Le  Gal,  19 
Barb.  (N.  Y.)  594- 

2,  While  action  is  pending,  only,  can  the 
offer  be  made.  Horner  v.  Pilkington, 
II  Ind.  440;  Crane  v.  Hirschfelder,  17 
Cal.  582. 

3,  "  With  interest "  has  no  significance 
where  an  offer  is  made  for  a  certain 
sum  with  interest,  not  specifying  the 
amount  of  interest  or  fixing  any  date 
for  its  computation.  Smith  v.  Bowes, 
II  Daly  (N.  Y.)  320. 

4,  Sufficiency  of  offer  should  be  couched 
in  clear  and  specific  language,  leaving 
no  reasonable  ground  for  controversy 
or  misunderstanding  respecting  the  re- 
lief proposed  by  it  or  the  judgment 
the  party  will  be  entitled  to  under  the 
acceptance  of  it.  Bettis  v.  Goodwill, 
32   How.  Pr.  (N.  Y.  Supreme  Ct.)  137. 

Specifying  Amount  or  Relief.  —  Must 
be  for  a  sum  named  and  costs;  and  an 
instrument  which  stated  that  defendant 
did  not  admit  that  he  was  indebted  to 
the  plaintiff,  but,  for  the  purpose  of 
buying  his  peace  and  saving  further 
litigation,  would  pay  a  stated  sum  and 
costs  if  the  plaintiff  would  dismiss  the 
suit,  was  not  an  offer  to  allow  judg- 
ment. Quinton  v.  Van  Tuyl,  30  Iowa 
557.  The  amount  need  not,  however, 
be  specified  in  the  offer.  This  may  be 
rendered  certain  by  a  reference  in  the 
offer  to  the  complaint.  Burnett  v. 
Westfall,  15  How.  Pr.  (N.  Y.  Supreme 
Ct.)  420. 

Action    Relating    to    Personalty.  —  In- 
action for  possession  of  personal  prop- 
erty, an  offer  to  allow  judgment  for  a 
14  Volume  5. 


5981. 


COMPROMISE. 


5981. 


costs.  ^ 

Dated  the  ninth  day  of  February^  iS98. 

Richard  Roe,  Defendant 
106  State  Street,  Albany,  N.  V.^ 


specified  sum  in  damages,  but  not  in- 
cluding an  offer  to  allow  judgment  to 
be  taken  adjudging  the  title,  is  not 
sufficient.  Oleson  v.  Newell,  I2  Minn. 
i86. 

Where  an  action  is  brought  to  re- 
cover damages  for  the  conversion  of 
personal  property,  it  has  been  held 
that  defendant  cannot  force  the  plain- 
tiff to  accept  the  property  or  pay  the 
costs  on  refusal  to  do  so,  and  even  if 
the  action  had  been  brought  to  recover 
the  specified  property  tendered,  the 
defendant  will  have  no  such  right  un- 
less the  offer  includes  with  the  pro- 
posed delivery  of  articles  tendered  a 
proposal  to  pay  an  amount  as  damages 
for  detention  not  less  than  that  ulti- 
mately assessed  by  the  jury.  Stephens 
V.  Koonce,  103  N.  Car.  266. 

Discharging  Mechanics'  Lien.  —  An 
offer  in  writing  to  pay  into  court  the 
stated  amount  in  discharge  of  a  me- 
chanics' lien  must  follow  strictly  the 
statute  (Birds.  Rev.  Stat.  N.  Y.  (1896), 
p.  1964,  S  49).  The  omission  of  the 
words  "  discharge  of  the  lien  "  has  been 
held  to  render  the  offer  ineffectual. 
Burton  v.  Rockwell,  63  Hun  (N.  Y.) 
163,  following  Hall  v.  Dennerlein,  (C. 
PI.)  39  N.  Y.  St.  Rep.  67,  questioning, 
however,  the  soundness  of  the  rule. 

In  action  for  state  and  county  taxes, 
the  offer  must  specify  in  what  sum 
judgment  will  be  allowed  for  state  and 
what  sum  for  county  taxes.  Sacra- 
mento County  V.  Central  Pac.  R.  Co., 
61  Cal.  250. 

Must  be  unconditional  and  leave  no 
facts  to  be  ascertained  and  determined. 
An  offer  containing  the  statement  "  this 
offer  being  subject  to  the  covenant  for 
the  stay  of  proceedings  entered  into 
between  the  parties  hereto "  is  void. 
Pinckney  v.  Childs,  7  Bosw.  N.  Y.  662. 
In  this  case  the  offer  was  insufficient, 
and  was  as  follows,  omitting  formal 
parts: 

"  Please  take  notice  that  the  above 
named  defendants,  Henry  M.  Childs, 
Seneca  Durand  and  Anthony  Arnoux, 
hereby  severally  withdraw  the  answers 
by  them  made  in  the  above  entitled 
cause,  copies  of  which  have  been  here- 
tofore served  upon  you,  and  the  said 
defendants  hereby  offer  to  allow  judg- 


ment to  be  taken  against  them  for  the 
sum  of  one  thousand  nine  hundred  and 
sixty-three  dollars  and  sixty  cents,  with- 
out costs,  this  offer  being  subject  to 
the  covenant  for  a  stay  of  proceed- 
ings entered  into  between  the  parties 
hereto." 

But  in  De  Long  v.  Wilson,  80  Iowa 
217,  the  words  "said  amount  to  be  a 
full  settlement  of  the  above  action " 
were  held  not  to  constitute  a  condition 
upon  which  the  offer  was  made,  but 
only  a  legal  and  logical  conclusion  of 
the  acceptance.  Quinton  v.  Van  Tuyl, 
30  Iowa  554. 

Confined  to  what  Claims.  —  Must  be 
confined  to  the  claims  made  by  the 
plaintiff  in  the  suit.  Phillips  v.  Shearer, 
56  Iowa  262. 

1.  With  Costs.  —  An  offer  to  allow 
judgment  to  be  taken  must  expressly 
state  that  it  may  be  taken  with  costs. 
Ranney  v.  Russell,  3  Duer  (N.  Y.)689; 
Harter  v.  Comstock,  11  Ind.  525;  Quin- 
ton V.  Van  Tuyl,  30  Iowa  557.  But  an 
offer  to  allow  judgment  with  "accrued 
costs"  is  sufficient.  Hollands.  Pugh, 
16  Ind.  21.  And  where  an  offer  of 
judgment  with  costs  "to  date"  was 
made,  it  was  held  that  the  words  "  to 
date"  were  mere  surplusage.  Lynkz/. 
Weaver,  128  N.  Y.  175.  In  Wisconsin, 
however,  an  offer  for  a  judgment  for  a 
specified  sum  as  damages  is  sufficient, 
although  it  does  not  expressly  offer 
judgment  for  costs  also.  Brown  v. 
Bosworth,  58  Wis.  379.  In  this  case  the 
offer  was  annexed  to  an  affidavit  by  one 
of  the  defendants  served  upon  the 
plaintiff  within  ten  days  after  service 
of  the  summons  and  complaint  upon 
the  defendants.  The  affidavit,  including 
the  proper  venue,  is  set  out  in  the  re- 
ported case,  as  follows: 

(Title  of  cause.)     "The    defendants 
hereby  offer  to  allow  judgment  to  be 
taken  against  them  in  the  above  action 
for  %Qg2.7g  in  favor  of  the  plaintiff. 
February  4th,  l8<S?. 

G.  W  Cate, 
Defendants*  Attorney." 

2.  Host  be  Signed.  —  The  offer  without 
signature  is  not  sufficient,  though  in 
writing  authorizing  plaintiff  to  take 
judgment  for  a  specified  sum  and  costs. 
Ossenkop  v.  Akeson,  15  Neb.  622. 

15  Volume  5. 


5982.  COMPROMISE.  5983. 

To  John  Doe,  plaintiff. 
(^Froof  of  service.  ^ 

Form  No.  5982.' 
State  of  Indiana, )  ^^  ^^^  ^.^^^.^  ^^^^^ 

Posey  County.       j  -^ 

John  Doe,  plaintiff,      ^ 

against  >■  Offer  to  allow  judgment. 

Richard  Roe,  defendant.  ) 

The  above  named  defendant  Richard  Roe,  on  t\\\s  twenty-/ ourth  ddiy 
oi  November,  iS97,  hereby  offers  to  allow  judgment  for  the  sum  of 
three  hundred  and  fifteen  dollars,  together  with  costs  to  have  accrued 
and  may  accrue,  to  be  taken  against  him  the  said  Richard  Roe  by  him 
the  said  John  Doe  in  the  above  entitled  action  now  pending  in  this 
court,  which  said  action  is  based  upon  a  claim  of  the  sum  oi  four 
hundred  dollars,  which  the  said  John  Doe,  plaintiff,  has  against  said 
Richard  Roe,  defendant,  for  certain  goods,  wares  and  merchandise  by 
the  said  John  Doe  to  him  the  sdi^d  Richard  Roe  sold  and  delivered. 

Richard  Roe,  Defendant. 

To  John  Doe,  plaintiff. 

{Proof  of  service. y- 

(2)  In  Justice's  Court. 

Form  No.  5983.' 

(N.  Car.  Code  (1883),  §  909,  No.  43., 
John  Doe 
against       \  Justice's  Court. 
Richard  Roe. 

But  it  is  not  required  that  the  offer  North  Carolina.  —  Code  (1883),  §  573. 

shall  be  acknowledged  by  the  defendant  North  Dakota.  —  Rev.    Codes    (1895), 

when  signed  by  him  personally.     That  §  5640. 

it  shall  be  subscribed  by  him  is  all  that  Ohio. — Bates'    Anno.     Stat.     (1897), 

the  code  requires.     Pfister  v.  Stumm,  §  5143. 

7  N.  Y.  Mis.  Rep.   (Buffalo   Super.  Ct.)  South  Carolina.  — 2  Rev.  Stat.  (1893), 

530,     distinguishing     Bridenbecker     v.  %  386. 

Mason,    16   How.    Pr.   (N.  Y.  Supreme  South  Dakota. — Comp.    Laws    Dak. 

Ct.)  203.     In  the  Pfister  case  the  offer  (1887),  §  5247. 

of  judgment  was   held   sufficient  and,  Utah.  —  Rev.  Stat.  (1898),  t^  3217. 

omitting  formal  parts,  was  as  follows:  Wyoming.  —  Rev.      Stat.      (1887),    § 

"The    defendant    hereby   offers    to  2530. 

allow  judgment  in  this  action  establish-  1,  Proof  of  Service.  —  For  forms  of  ac- 

ing  the  amount  of  the  plaintiff's  lien  at  knowledgments  of  or  affidavits  of  serv- 

the  sum  of  three  hundred  dollars  and  ice  consult  title  Service  of  Writs  and 

costs.                             facob  Stumm."  Papers. 

In  oases  of   oomiterclaim,   where   the  2.  Indiana.  —  Horner's   Stat.  (1896), 

plaintiff  serves  an  offer  upon  defendant  §  514. 

to  allow  judgment  to  be  taken  against  See  also  list  of  statutes  cited  supra, 

him  upon  the  counterclaim,   etc.,   the  note  i,  p.  13.    Consult  annotations  ap- 

forms  given  above,  with  slight  changes,  pended  to   Form   No.   5981,  supra,  the 

will  be  found  sufficient.  general  form  relating  to  the  offer  by  a 

New  York.  —  Birds.  Rev.  Stat.  (1896),  party  to  compromise, 

p.  2i98,--§  4  (Code  Civ.   Proc,  §  739,  8.  North  Carolina.  — Code.   (1883),    g 

as  amended  Laws  (1877),  c.  416).  840,  rule  12.    Similar  or  analogous  f  ro- 

16  Volume  5. 


5984. 


COMPROMISE. 


5984. 


To  John  Doe:  Take  notice  that  the  defendant  hereby  offers  to 
allow  judgment  to  be  taken  against  him  by  the  plaintiff  in  the  above 
action  for  the  sum  o{  fifty  dollars  with  costs.  Dated  this  tenth  day 
oi  January,  i2>98} 

Richard  Roe. 

{Proof  of  service.y- 


(3)  In  Appellate  Court. 

(a)  On  Notice  of  Appeal. 

Form  No.  5984.* 
Albany  County  Court.    " 
John  Doe,  respondent, 

against 
Richard  Roe,  appellant.  ^ 
To  John  Doe,  respondent  (or  Jeremiah  Mason,  attorney  for  respondent^ 
herein. 
Sir:  The  appellant  hereby  offers  to  allow  judgment  to  be  rendered 
in  the  County  Court  above  named  against  him  in  this  cause,  and  in  favor 


visions  will  be  found  in  the  statutes  of 
the  following  states: 

California.  —  Code  Civ.  Proc.  (1897), 

§895. 

Florida.  —  The  defendant  may,  be- 
fore answering,  make  an  offer  to  allow 
judgment  to  be  taken  against  him  for 
an  amount  to  be  stated  in  such  offer, 
with  costs.  The  plaintiff  shall  there- 
upon, and  before  any  proceedings  shall 
be  had  in  the  action,  determine  whether 
he  will  accept  or  reject  such  offer.  If 
he  accept  the  offer  and  give  notice 
thereof  to  the  justice,  the  justice  shall 
note  the  offer  and  the  acceptance  there- 
of and  render  judgment  accordingly. 
Rev.  Stat.  (1S92),  §  1617. 

Idaho.  — Rtv.  Stat.  (1889),  §  4731. 

Kansas. — 2  Gen.  Stat.  (1897),  c.  103, 

§154. 

Montana.  —  Code  Civ,  Proc.  (1895), 
§  1628. 

Nebraska.  —  Com  p.  Stat.  (1897),  § 
6527  (before  trial). 

Nevada.— Gen.  Stat.  (1885),  g  3576, 

New  York.  — Code  Civ.  Proc,  §2892 
(Birds.  Rev.  Stat.  (N.  Y.  1896),  p.  1780, 

§32). 

North  Carolina.  —  Code  (1883),  §  840, 
rule  16. 

North  Dakota.  —  Rev.  Codes  (1895), 

§6713. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
6581. 

5  E.  of  F.  P. —  2, 


Oklahoma. — Stat.  (1893),  c.  67,  §  123. 

South  Carolina.  —  2  Rev.  Stat.  (1893), 
g  88,  subs.  15. 

South  Dakota.  —  Comp.  Laws  Dak. 
(1887),  §  6108. 

Utah.—Re\.  Stat.  (1898),  §  3731. 

Vermont. — Stat.  (1894),  §  1690. 

Wisconsin.  —  Sand.  &  B.  Anno.  Stat. 
(1889),  §  3627. 

Wyoming.  —  Rev.  Stat.  (1887),  §  3479. 

1.  Proof  of  serviee,  see  supra,  note  i, 
p.  16. 

2.  Upon  appeal  from  a  judgment  of  a 
justice  of  the  peace,  where  judgment  is 
for  a  sum  of  money  only,  either  party 
may,  within  fifteen  days  after  service 
of  notice  of  appeal,  serve  upon  the  ad- 
verse party  or  upon  his  attorney  a 
written  offer  to  allow  judgment  to  be 
rendered  in  the  appellate  court  in  favor 
of  either  party  for  a  specified  sum.  If 
the  party,  within  ten  days  after  service 
of  the  offer  upon  him,  serves  upon  the 
party  making  same,  or  upon  his  attor- 
ney, written  notice  that  he  accepts  the 
offer,  he  must  file  it,  with  an  afllidavit 
of  service  of  the  notice  of  acceptance, 
with  the  clerk  of  the  appellate  court, 
who  thereupon  must  enter  judgment 
accordingly.  N.  Y.  Code  Civ.  Proc, 
t^  3070,  as  amended  Laws  (1885),  c.  522; 
Laws  (1895),  c.  356;  Birds.  Rev.  Stat. 
N.  Y.  (1896),  p.  1815,  §  214. 


17 


Volume  5. 


5985. 


COMPROMISE. 


5986. 


of  the  respondent  in  the  above  action,  for  the  sum  of  sixty-five  dollars. 
Dated  the  ninth  day  of  February^  iS98. 

Richard  Roe ^  Appellant?- 
(^Proof  of  service.')'^ 

{p)  In  Action  Pending  in  Appellate  Court. 

Form  No.  5985.' 

(^Title  and  address  as  in  Form  No.  6984-^ 

The  above  named  appellant,  Richard  Roe,  hereby  offers  to  allow 
judgment  to  be  taken  against  him  by  the  above  named  respondent, 
John  Doe,  in  this  cause  now  pending  in  this  court,  for  the  sum  of  sixty- 
five  dollars  (or  for  the  recovery  of  the  following  described  property^ 
describing  it),  with  (or  without^  costs.* 

Dated  the  third  diZ-y  of  February,  i898. 

»  Richard  Roe,  Appellant, 

{Proof  of  service.  )* 

b.  By  Agent. 

Form  No.  5986.* 

(Precedent  in  Carpenter  v.  Kent,  11  Ohio  St.  554.)' 


1.  By  Attorney.  —  The  offer  to  allow 
judgment,  under  section  3070  of  the 
New  York  Code  of  Civil  Procedure,  may 
be  made  by  the  attorney  of  the  party. 
Sherman  v.  Shisler,  6  N.  Y.  Misc.  Rep. 
(Buffalo  Super.  Ct.)  203. 

The  authority  of  the  attorney  to  ap- 
pear in  the  defendant's  behalf  empow- 
ers him  to  make  an  offer  of  judgment. 
All  the  incidents  to  the  authority  at- 
tach thereto,  and  among  others  to  bind 
the  principal  by  any  proceedings  which 
the  principal  might  take  therein,  and  it 
is  not  necessary  that,  in  addition  to  his 
swearing  to  his  authority  to  appear 
generally,  he  should  further  swear  to 
his  authority  to  make  the  offer  of 
judgment.     Fowler  v.   Haynes,  91  N. 

Y.35I. 

2.  Proof  of  service,  see  supra,  note  i, 
p.  16. 

3.  After  action  is  deemed  at  issue  in  ap- 
pellate court,  and  before  the  trial,  either 
party  may  at  any  time  serve  upon  the 
adverse  party  a  written  offer  to  allow 
judgment  to  be  taken  against  him  for 
the  sum  or  property  or  to  the  effect 
therein  specified,  with  or  without  costs. 
If  the  party  receiving  the  offer  within 
ten  days  thereafter  serves  upon  the  ad- 
verse party  notice  that  he  accepts  it,  he 
may  file  it  with  proof  of  acceptance  and 
thereupon  thederk  mustenter  judgment 


accordingly.  N.  Y.  Code  Civ.  Proc, 
§  3072  (Birds.  Rev,  Stat.  N.  Y.  (1896),  p. 
1815.  ^  216).  Consult  annotations  to 
Form  No.  5984,  supra. 

4.  Costs.  —  An  offer  under  section  3072 
should  state  whether  the  judgment  is 
offered  with  or  without  costs,  while  an 
offer  served  under  section  3070  is  to  be 
silent  in  respect  to  costs.  Zoller  v. 
Smith,  45  Hun  (N.  Y.)  321. 

6.  Proof  of  service,  see  supra,  note  i, 
p.  16. 

6.  Ohio.  —  Bates'  Anno.  Stat.  (1897), 
§§  5140,  6581.  6705.  See  also  list  of 
statutes  cited  supra,  note  i,  p.  13. 

Notice  in  writing  served  on  plaintiff 
by  defendant,  stating  that  the  latter 
offers  to  confess  judgment  for  a  sum 
therein  named  and  costs  to  date,  was 
regarded  as  an  offer  to  allow  judgment 
within  the  meaning  of  the  Ohio  Stat.,  § 
5140.    Adams  v.  Phifer,  25  Ohio  St.  301. 

Uust  be  made  in  a  separate  writing  and 
served  as  prescribed  by  law.  It  should 
not  be  made  a  part  of  the  answer.  Arm- 
strong V.  Spears,  18  Ohio  St.  373;  Tipton 
V.  Tipton,  49  Ohio  St.  364. 

7.  This  writing  was  held  to  be  in  its 
terms  a  clear  and  explicit  offer  to  the 
plaintiffs  to  suffer  them  to  take  a  judg- 
ment against  the  defendants  in  the 
action  then  commenced  for  the  sum  of 
fifty  dollars,  and  that  the  offer   could 


18 


Volume  5. 


5987. 


COMPROMISE. 


5987. 


[The  State  of  Ohio, 
Monroe  County,  ss 
James  Kent  and  Wm.  T.  Kent,  as  admin- " 

istrators  of  the  estate  of  William  Kent, 

deceased, 

V. 


)  Before  Abraham  Kent,  Justice  of  the  Peace  for 
)  Township  in  said  county.  J^ 


>■  Civil  Action. 


Reason  Carpenter,  Samuel  Carpenter  and 
Daniel  Breeding. 
The  defendants  hereby  tender  to  the  plaintiffs  a  judgment  in  favor 
of  said  plaintiffs  against  said  defendants  oi  fifty  dollars,  with  the  costs 
that  have  accrued  up  to  this  date.     March  2,  iS57. 

Reason  Carpenter.^ 
Samuel  Carpenter. 
Daniel  Breeding. 
By  Jas.  M.  Stout^  their  Agent. 
\(^Proof  of  service. y\^ 

c.  By  Attorney. 

Form  No.  5987.* 

Supreme  Court,  Ontario  County. 
William  B.  Burnett 


against 
George  D.    Westfall. 

Sir:  Take  notice  that  the  defendant  hereby  offers  to  allow  the 
plaintiff  in  this  action  to  take  judgment  against  him  for  the  sum  of 
two  hundred  dollars,  being  the  amount  claimed  in  the  summons  and 
complaint  herein,  to  wit,  the  sum  of  four  hundred  and  fifty  dollars, 
less  the  amount  of  the  two  notes  oi  Joseph  Westfall  set  up  in  the  third 
and  fourth  defenses  in  the  answer,  the  said  two  notes  amounting  to 
two  hundred  dollars,  and  for  costs  and  disbursements.* 

Yours,  etc., 
Cornwell,  Welling  dr*  Arnold,  Defendant's  Attorneys,' 

106  State  Street,  Geneva,  N.  Y.'' 


not  have  been  made  more  obligatory 
upon  the  defendants.  Carpenter  v. 
Kent,  II  Ohio  St.  560. 

1.  Words  within  [  ]  are  not  found  in 
the  reported  case. 

2.  One  of  two  defendants  may  make  this 
offer.  New  York,  etc.,  R.  Co.  v.  Clark, 
54  Ohio  St.  509. 

3.  Proof  of  service,  see  supra,  note  i, 
p.  16. 

4.  New  York.  —  Birds.  Rev.  Stat. 
(1896),  p.  2198,  §  3;  Code  Civ.  Proc,  § 
738,  as  amended  Laws  (1887),  c.  416. 
See  also  list  of  statutes  cited  supra, 
note  I,  p.  13. 

6.  Stating  Specific  Stun. —  This  is  an 
offer  based  upon  the  facts  in  the  case 
of  Burnett  v.  Westfall,  15  How.  Pr. 
(N.  Y.  Suprem:  Ct.)420.  In  that  case 
the  offer  was  held  sufficient,  although 


it  did  not  state  that  it  was  made  for  a 
specific  sum.  This,  however,  seems  to 
be  required  under  the  provisions  of  the 
present  section  of  the  code  (Code  Civ. 
Proc,  §  738). 

6.  Signature  of  Attomsy.  —  Although 
the  statute  provides  tliat  the  offer  when 
made  by  an  attorney  shall  be  sub- 
scribed by  him,  it  is  not  essential  that 
the  papers  have  the  genuine  signature 
of  the  attorney.  His  name  subscribed 
in  any  manner,  either  written  or  printed, 
is  sufficient,  inasmuch  as  it  is  treated 
by  the  attorney  as  subscribed  by  him. 
Smith  V.  Kerr,  49  Hun  ( N.  Y.)  31; 
Barnard  v.  Heydrick,  49  Barb.  ( N.  Y.) 
62;  New  York  v.  Eisler,  2  Code  Civ. 
Proc.  Rep.  (N.  Y.  C.  PI.)  125. 

7.  Office  Address.  —  Attorney  must  add 
to    his    signature    his    office    address, 

19  Volume  5. 


5988. 


COMFROMiSE. 


5988. 


To  S.  Baldwin,  Esq.,  Plaintiff's  Attorney. 
(^Affidavit  of  attorneys'  authority,  y- 
\Proof  of  service?^ 

Form  No.  5988.' 

(Precedent  in  De  Long  v.  Wilson,  80  Iowa  217.) 
District  Court  in  and  for  Mahaska  county,  state  of  Iowa, 
E.  F.  De  Long  ) 

vs.  [  A/>ri/ Term,  iS90. 

E.  M.  Wilson.  ) 
To  E.  F.  De  Long,  or  Bolton  6^'  McCoy,  his  attorneys  of  record: 

The  above  named  defendant,  E.  M.  Wilson,  hereby  offers  to  allow 
judgment  to  be  taken  against  him  in  the  above  entitled  cause  for  the 
sum  of  twenty-five  dollars,  with  costs  to  date;  said  amount  to  be  a 
full  settlement  of  the  above  cause.*  This  is  an  offer  of  compromise 
under  section  2900  of  the  Code  of  Iowa. 

E.  M.  Wilson, 

J.  F.  ^  W.  R.  Lacey, 

W.  G.  Jones, 

His  Attorneys. 
\fProof  of  service. )]  * 


specifying  a  place  within  the  state  where 
there  is  a  post-office.  If  in  a  city, 
he  must  add  the  street  and  the  street 
number,  if  any,  or  any  suitable  desig- 
nation of  a  particular  locality.  N.  Y. 
Code  Civ.  Proc,  §  421  (Birds.  Rev.  Stat. 
(1896),  p.  2269,  §  3);  Code  Civ.  Proc,  § 
417  (Birds.  Rev.  Stat.  (1896),  p.  12,  §  10). 

1.  Attorney's  Affidavit  of  Authority.  — 
Unless  the  offer  made  as  prescribed  by 
law  is  subscribed  by  the  party  making 
it,  his  attorney  must  subscribe  it  and 
annex  thereto  his  affidavit  to  the  effect 
that  he  is  duly  authorized  to  make  it 
in  behalf  of  the  party.  N.  Y.  Code 
Civ.  Proc,  §  740.  McFarren  v.  St. 
John,  14  Hun  (N.  Y.)  387;  Riggs  v. 
Waydell,  17  Hun  (N.  Y.)  515,  affirmed 
in  Riggs  V.  Waydell,  78  N.  Y.  586. 

The  following  may  be  used  as  the 
form  for  such  an  affidavit: 

'■^Ontario  County,  ss. 

feremiah  Mason,  being  first  duly 
sworn,  on  oath  says,  that  he  is  the  duly 
authorized  attorney  for  the  said  Richard 
Roe,  defendant  in  the  above  named 
proceeding,  and  that  ha  has  been 
authorized  by  the  said  Richard  Roe  to 
make  the  above  offer  of  judgment  in 
his  behalf. 

feremiah  Mason. 

Sworn  to  before  me  this  ninth  day  of 
February,  iSgS. 

(seal)  Norton  Porter, 

Notary  Public." 


In  Riggs  V.  Waydell,  17  Hun  (N.  Y.) 
515,  the  offer  to  allow  judgment,  omit- 
ting the  formal  parts,  was  as  follows: 
"The  defendants  in  this  action  hereby 
offer  to  allow  judgment  to  be  taken 
therein  against  them  for  the  sum  of 
%8oo.oo  and  interest  thereon  from  April 
26,  1877,  with  costs."  The  defendants' 
attorney  served  the  offer,  which  was 
signed  by  himself  but  was  not  accom- 
panied by  an  affidavit  showing  his 
authority  to  make  it.  Plaintiff  served 
notice  declining  to  accept  the  offer. 
On  trial,  recovery  was  had  for  less  than 
the  amount  named  in  the  offer.  Defend- 
ant was  not  allowed  to  amend  the  offer 
by  annexing  the  proper  affidavit  of 
authority  required  by  N.  Y.  Code  Civ. 
Proc,  §  740. 

2.  Proof  of  Service.  -^  For  form  of 
acknowledgments  of  or  affidavits  of 
service  consult  the  title  Service  of 
Writs  and  Papers. 

3.  Iowa.  —  Code  (1897),  §  3819.  See 
also  list  of  statutes   cited   supra,  note 

I,  p.  13- 

4.  The  words  "  said  amount  to  be  a  full 
settlement  of  the  above  cause,"  in  this 
offer,  were  held  not  to  constitute  a 
condition  upon  which  the  offer  was 
made,  but  only  a  legal  and  logical  con- 
sequence of  the  acceptance,  distinguish- 
ing  Quinton  v.  Van  Tuyl,  30  Iowa  554. 

5.  Proof  of  service,  see  supra,  note  i, 
p.  16. 

20  Volume  5. 


6989.  COMPROMISE.  5991. 

Form  No.  5989.' 

(Precedent  in  Wordin  v.  Bemis,  33  Conn.  216.) 

Isaac  H^    Wordin  \  ^^^^^.^^  ^^^^^^  Fairfield  Conv^ty, 

c-j  ^L      A    E.      •     t  March  term,  \%6S. 
Stephen  C.  Bemts.  )  ' 

To  the  plaintiff  and  to  Messrs.  Treat  cr*  Blake,  his  attorneys: 

The  defendants  hereby  offer  to  allow  you  to  take  judgment  in  this 
action  for  the  sum  of  %1S8,  being  a  balance  of  freight  after  payment 
of  %30,  to  wit,  %13J!^.70,  with  interest  on  said  sum  since  November  1st, 
iS62,  and  a  small  excess  allowed  for  possible  difference  in  computing 
interest  with  costs. 

By  F.  Chamberlain,  attorney  for  defendants. 

Form  No.  5990.* 
(Precedent  in  Rose  v.  Peck,  18  Neb.  529.)* 
Amos  Peck 

V. 

Peter  W.  Rose. 

Now  comes  the  defendant,  Peter  W.  Rose,  by  his  attorneys.  Brown  Gf 
Ryan  Bros.,  and  offers  to  allow  judgment  to  be  taken  against  him  for 
$5.00  and  costs  in  this  action,  wherein  Amos  Peck  is  plaintiff  and  Peter 
W.  Rose  is  defendant,  now  pending  in  the  district  court  of  Lancaster 
county,  Nebraska. 

Brown  &*  Ryan  Bros.,  Attys.  for  Deft^ 

(^Indorsement.  )* 

{Proof  of  service .  )* 

2.  The  Acceptance, 
a.  Generally. 
Form  No.  5991.* 

{Title  of  court  and  cause  as  in  Form  No.  6981.") 
To  Richard  Roe  (or  Jeremiah  Mason,  his  attorney^: 

John  Doe,  the  above  named  plaintiff,  hereby  notifies  you  that  he 
accepts  the  offer  of  Richard  Roe,  the  above  named  defendant,  to  allow 

1.  Connecticut.  —  Gen.  Stat.  (i888),  §§  4.  Indorsement,  —  The  offer  to  allow 
1057-1059.  See  also  list  of  statutes  judgment  set  out  in  the  text  was  in- 
cited J«/^fl,  note  I,  p.  13.  dorsed    as    follows:    "Amos    Peck    v. 

2.  Nebraska.  — Comp.  Stat.  (1897),  §  Peter  IV.  Rose.  Offer  to  confess  judg- 
6527.  See  also  list  of  statutes  cited  ment.  Clerk's  Office,  district  court. 
supra,  note  i,  p.  13.  Filed  March  2,  iSiff.     E.  R.  Sizer,  Clk. 

8.  Necessity  of  Notice  to  Plaintiff.  —  In  D.  C." 

this  case  it  was  held  that  the  offer  to  6.  Proof  of  service,  see  supra,  note  I, 

allow   judgment    was     unavailing    to  p.  16. 

throw    upon   plaintiff   the    costs   made  %.  New  York. —  Code  Civ.  Proc,  §738, 

after  the   filing   of   the    offer,    for   the  as  amended  Laws  (1877),  c.  416  (Birds, 

reason  that  the  offer,  though  in  writing  Rev.    Stat.  (1896),  p.  2198,   §   3).     See 

and  filed  in  the  oflBce  of  the  clerk,  was  also  list  of  statutes  cited  supra,  note  i, 

not  served  upon  the  plaintiff  or  his  at-  p.    13,    for     similar    statutory    provi- 

torney,  nor  was  it  made  in  open  court  sions. 
while  plaintiff  was  present. 

21  Volume  5. 


5991. 


COMPROMISE. 


5991. 


judgment  to  be  taken  against  him  in  the  above  entitled  action  for 
[the  sum  oi  three  hundred  and  fifteen  dollars],^  with  costs  that  have 
accrued  and  may  accrue  herein. 

Dated  the  twenty-serenth  day  of  November,  iS97. 

John  Doe  (or  Oliver  Ellsworth,  Attorney  for  Plaintiff, 

1006  State  Street,  Albany,  N.  F.) 
{Affidavit  of  attorney's  authority^ 
{Proof  of  service^ 


1.  Or,  instead  of  the  words  within  [  ], 
specify  the  particular  judgment  or  re- 
lief offered  to  be  allowed,  as  shown  in 
the  offer  of  the  defendant. 

2.  Affidavit  of  Attorney's  Authority.  — 
In  New  York,  when  the  acceptance  is 
subscribed  by  the  attorney  of  the  party, 
he  must  annex  thereto  his  affidavit  to  the 
effect  that  he  is  duly  authorized  to  make 
it  in  behalf  of  the  party.  N.  Y.  Code 
Civ.  Proc,  §  740  (Birds.  Rev  Stat. 
N.  Y.  (1896),  p.  2iq8,  §  5).  See  supra, 
note  I,  p.  20.  The  following  form 
of  affidavit  is  sufficient  under  this  sec- 
tion: 

^^  Albany  County,  ss. 
Jeremiah  Masott,  being  duly  sworn  on 
oath,  says  that  he  is  the  attorney  for 
the  above  named  plaintiff,  /ohn  Doe,  and 
that  he  is  duly  authorized  by  said  plain- 
tiff to  accept  the  above  offer  of  judg- 
ment. 

Jeremiah  Mason. 

Subscribed  and  sworn  to  before  me 
ih'xs  fourth  day  oi  January,  i8gS. 

(seal)  Norton  Porter, 

Notary  Public." 

8.  Proof  of  Service.  —  See  supra,  note 
I,  p.  lb. 

Plaintiff's  affidavit  that  notice  of  ac- 
ceptance was  delivered  in  the  time 
limited  by  the  statute,  to  be  filed  with 
the  offer,  as  provided  by  Neb.  Comp. 
Stat.  (1897),  §  6157,  may  be  in  the  fol- 
lowing form 

"JoAnDoe, 

against 
Richard  Roe, 
State  oi  Nebraska,  ) 
County  of  Colfax.  )  ^^' 

John  Doe,  being  duly  sworn,  upon  oath 
deposes  and  says  that  he  is  the  plaintiff 
in  the  above  entitled  action;  that  on 
the  tenth  day  oi  January,  a.  d.  1897,  at 
Schuyler^  in  said  county,  an  offer  to 
allow  judgment  made  by  the  defendant 
and  hereto  annexed  was  served  upon 
him,  and  that  within  fve  days  there- 


1: 

e,  plaintiff,      ) 
linst  >• 

f,  defendant.  J 


after,  to  wit,  on  ihe  fourteenth  day  of 
January,  A.  D.  1897,  he  served  upon 
Daniel  Webster,  defendant's  attorney,  at 
his  office  in  Schuyler  aforesaid,  a  notice 
that  he,  the  plaintiff,  accepted  the  said 
offer;  and  that  a  true  copy  of  said  notice 
is  hereto  annexed. 

John  Doe. 

Subscribed  and  sworn  to  before  me 
this  fourteenth  day  oi  January,  a.  D. 
1897. 

(seal)  Norton  Porter, 

Notary  Public." 

Under  N.  Y.  Code  Civ.  Proc,  §  738, 
as  amended  Laws  (1877),  c.  416  (Birds. 
Rev.  Stat.  (1896),  p.  2198,  §  3),  the  fol- 
lowing affidavit  is  sufficient: 

''Supreme  Court,  Albany  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

Albany  County,  ss. 
Jeremiah  Mason,  attorney  ioxjohn  Doe, 
the  above  named  plaintiff,  being  duly 
sworn,  upon  oath  deposes  and  says  that 
on  the  sixth  day  oi  February ,  a.  d.  1897, 
at  Albany,  in  said  county,  an  offer  to 
allow  judgment,  made  by  the  defend- 
ant, and  hereto  annexed,  was  served 
upon  him,  and  that  within  ten  days 
thereafter  (or  within  the  time  prescribed 
by  the  statute^,  to  wit:  on  Xht.  fourteenth 
day  of  February,  A.  D.  1897,  he  served 
upon  Daniel  Webster,  defendant's  attor- 
ney, at  his  office  in  Albany  aforesaid,  a 
notice  that  the  plaintiff  accepted  the  said 
offer,  and  that  the  above  is  a  true  copy 
of  said  notice. 

Jeremiah  Mason. 

Subscribed  and  sworn  to  before  me 
\.h\s  fourteenth  day  of  February,  a.  D. 
1897. 

(seal)  Norton  Porter, 

Notary  Public." 

For  similar  provisions  in  other  juris- 
dictions see  list  of  statutes  cited  supra, 
note  I,  p.  13. 


23 


Volume  5. 


6992.  COMPROMISE.  5994. 

b.  In  Justice's  Court. 

Form  No.  5992 .' 

(N.  Car.  Code  (1883),  §  909,  No.  44.) 

(  Title  of  court  and  cause  as  in  Form  No.  598S.) 

To  Richard  Roe  :  Take  notice  that  the  plaintiff  hereby  accepts 
the  offer  to  allow  the  plaintiff  to  take  judgment  in  the  above  action 
for  the  sum  oi  fifty  dollars  with  costs,  and  the  justice  will  enter  up 
judgment  accordingly.     Dated  this  eleventh  day  ol  January,  i898. 

John  Doe. 

{Proof  of  service.^ 

c.  In  Appealed  Cases. 

Form  No.  5  9  9  3  .* 

(  Title  of  court  and  cause  as  in  Form  No.  598 Jf.. ) 
To  Richard  Roe  (or  Daniel  Webster,  his  attorney): 

John  Doe,  the  above  named  respondent,  hereby  notifies  you  that  he 
accepts  the  offer  of  Richard  Roe,  the  above  named  appellant,  to  allow 
judgment  to  be  rendered  in  the  county  court  above  named  against 
him  in  the  above  entitled  action,  for  the  sum  of  sixty-five  dollars. 
Dated  the  fourth  day  of  February,  id>98. 

John  Doe,  Respondent 
(or  Jeremiah  Mason,  Attorney  for  Respondent, 
1001  State  Street, 

Albany,  New  York).^ 
{Proof  of  service^ 

3.  The  Judg-ment. 
a.  Generally. 

Form  No.  5  9  9  4  •* 

Supreme  Court,  Albany  County. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant.  ^ 

John  Doe,  the  plaintiff  above  named,  having  filed  the  summons 
and  complaint  in  the  above  entitled  cause,  together  with  the  offer  of 

1.  North  Carolina.  —  Code  (1883),  §  5.  New  York.  — Code  Civ.  Proc.  § 
840  rule  12.  See  list  of  statutes  cited  738,  as  amended  Laws  (1877),  c.  416; 
supra,  note  i,  p.  13.  Code   Civ.    Proc,   §   739-    as    amended 

2.  ProofofServico.  — Seej«/ra,  notei,  Laws  (1877),  c.  416;  Birds.  Rev.  Stat, 
p.  13.  (1896),  p.  2198,  ^§  3  and  4.     See  also 

3.  Ne-j}  York.  — Code  Civ.  Proc,  §  list  of  statutes  cited  supra,  note  i, 
3070,   as  amended  Laws  (1885),   c    522;  p.  13. 

Laws  (1895),  c  356;    Birds.   Rev.  Stat.  In  appealed  casei  in  New  York,  under 

(1896),  p.    1815,  §  214.     Consult  anno-  Code   Civ.    Proc,  §    3070,  as   amended 

tation'to  Forms  Nos.  5984  to  5985,  supra.  Laws  (1885),  c.  522,  Laws  (1895),  c  356 

4.  By  Attorney. —  See  supra,  note  i,  (Birds.  Rev.  Stat.  (1896),  p.  1815,  §  124), 
p,  18.  the  judgment  to  be  entered  by  the  clerk 

28  Volume  5. 


5995.  COMPROMISE.  5995. 

the  above  named  defendant  Richard  Roe  in  writing,  to  allow  the  said 
plaintiff  to  allow  judgment  against  him  for  the  sum  of  seven  hundred 
and  fifty  dollars  {or  specifying  other  reliefs  as  the  case  may  be'),  with  the 
proof  of  acceptance  of  said  offer  in  writing;  therefore,  on  motion  of 
Jeremiah  Mason,  attorney  for  plaintiff  aforesaid,  it  is  considered  and 
adjudged  that  the  said  plaintiff  do  have  and  recover  against  the  said 
defendant  the  sum  of  seven  hundred  and  fifty  dollars  damages  afore- 
said (or  specifying  other  relief,  as  the  case  may  be'),  with  his  costs 
expended  by  him  in  this  cause,  taxed  at  eight  dollars,  amounting  in 
the  whole  to  seven  hundred  and  fifty-eight  dollars.  Dated  this  fourth 
day  oi  January,  a.  d.  \Z98. 

Calvin  Clark,  Clerk  of  Albany  County. 

b.  In  Justice's  Court. 
(1)  Upon  Acceptance  of  Offer. 

Form  No.  5995.' 

(N.  Car.  Code  (1883),  §  909,  No.  45.) 


\ 


John  Doe 

against      \  Justice's  Court, 
Richard  Roe.  ) 

(The  justice  will  state  all  the  proceedings  in  the  action  from  the  issuing 
of  the  summons  down  to  the  appearance  of  the  parties  and  the  complaint 
of  the  plaintiff,  and  then  proceed  as  follows:)  Whereupon  the  said 
defendant,  before  answering  said  complaint,  made  and  served  an 
offer  in  writing  to  allow  the  plaintiff  to  take  judgment  against  him 
for  the  sum  of  fifty  dollars  with  costs;*  and  the  said  plaintiff  there- 
upon accepted  such  offer  and  gave  notice  thereof  to  the  defendant 
in  writing,  said  offer  and  acceptance  thereof  being  filed. 

Now,  therefore,  judgment  is  accordingly  rendered  in  favor  of  the 
plaintiff  and  against  the  defendant  for  the  sum  oi  fifty  dollars  damages 
and  the  further  sum  of  one  dollar  costs. 

Dated  this  eleventh  day  oi  January,  a.  d.  yWS."^ 

^Abraham  Kent,  Justice  of  the  Peace.] 

where  the  party,  within   ten  days  after  in  this  court  for  the  sum  of  one  hundred 

service  of  the   offer,   serves   upon  the  and  fifty   dollars    having    been    duly 

party  making  the  same  a  written  notice  made  by  the  aforesaid  respondent,  and 

that  he   accepts   the  offer,  and  files   it  the   said    offer   having   been    duly   ac- 

with  an  affidavit  of  service  of  the  notice  cepted  by  the  aforesaid  appellant,  and 

of  acceptance,  may  be  in  the  following  the  same  having  been  filed  in  the  office 

form:  of  the   clerk  of  said  county  oi  Albany, 

{Title  of  court  and  cause.)  together  with  an  affidavit  of  the  service 

"  The  above  entitled  action  comes  to  of  notice  of  said  acceptance,  wherefore, 

this  court  on  appeal  taken  from  a  judg-  on  motion   of  Daniel  Webster,  attorney 

ment    rendered   by   Abraham    Kent,   a  for  appellant  aforesaid,  it  is  considered 

justice  of  the  peace  within  and  for  the  that  the  said  respondent  /i?A«  Doe  have 

county  of  Albany  aforesaid,  in  favor  of  and  recover   against   the   said  Richard 

the  above  named  res^onA&nX.  fohn  Doe  Roe  the  sum  or  one    hundred  and  fifty 

and  against  the  above  named  appellant  dollars  damages  aforesaid  "  (concluding 

Richard  Roe,  on  the    tenth  day  of  De-  as  in  Form  No.  SQ94)- 
cember,  A.  D.  1897,  for  the  sum   of  two         1.  North    Carolina.  —  Code    (1883),    § 

^««a'r^</ dollars  damages  and  his  costs  840,  rule  12.     See  list  of  statutes  cited 

by    him    expended,    and    an    offer    in  supra,  note  i,  p.  13. 
writing  to  allow  judgment  to  be  taken         2.  The  words  and  figures  enclosed  by 

24  Volume  5. 


5996.  COMPROMISE.  6997. 

(2)  Upon  Refusal  of  Offer  or  Failure  to  Accept. 

Form  No.  5996.' 
(N.  Car.  Code  (1883),  §  909,  No.  45.) 

[(Commencing  as  in  Form  No.  5995,  and  continuing  down  to*)'\^  and 
the  said  plaintiff  having  refused  to  accept  such  offer,  the  defendant 
answered  the  complaint  by  denying,  etc.  {State  the  defense  of  the 
defendant  down  to  the  judgment,  which,  in  case  the  plaintiff  fails  to  recover 
more  than  the  sum  mentioned  in  the  offer,  should  be  entered  thus-)  After 
hearing  the  proofs  and  allegations  of  the  respective  parties,  I  adjudge 
that  the  plaintiff  do  recover  the  sum  oi  fifty  dollars  and  the  further 
sum  of  one  dollar  costs. 

I  further  adjudge  that  the  defendant  do  recover  of  the  plaintiff 
the  sum  of  two  dollars  and  seventy-five  cents  costs  accruing  in  the 
action  subsequent  to  the  offer  of  the  defendant  referred  to. 

Dated  this  eleventh  day  of  January,  a.  d.  \Z98.^ 

[Abraham  Kent,  Justice  of  the  Peace.] 

II.  OFFER  TO  BE  DEFAULTED. 
1.  By  Party. 

Form  No.  59 9 7.' 

n      ,      ^  Supreme  Tudicial  Court. 

Penobscot,  ss.  j^^^J^  ^^^^^  ^8P^ 

John  Doe     ) 

against       >■  Offer  to  be  defaulted. 
Richard  Roe.  ) 

And  now  the  said  Richard  Roe,  defendant  in  the  above  entitled 
action,  on  the  first  day  of  the  said  term  of  said  court  comes  and  offers 

[  ]  will  not  be  found  in  the  statute,  but  in  an  action  at  law  or  suit  in  equity 

have  been  added  to   render   the    form  wherein  damages  only  are  sought  to  be 

complete.  recovered,  offers  in  court  and  consents 

1.  North  Carolina.  —  Code  (1883),  §  in  writing  to  be  defaulted,  and  the 
840,  rule  12.  See  list  of  statutes  cited  judgment  shall  be  rendered  against 
supra,  note  i,  p.  13.  him   as   damages  for  a    sum    therein 

2.  The  words  and  figures  enclosed  by  specified,  the  same  shall  be  entered  of 
[  ]  will  not  be  found  in  the  statute,  but  record,  together  with  the  time  when  it 
have  been  added  to  render  the  form  was  made,  and  the  plaintiff  may,  at  any 
complete.  time  within  ten  days  after  he  has  re- 

8.  Maine.  —  In  any  personal   action,  ceived  notice  of  such  offer  and  consent, 

defendant  may,  in  writing  entered  of  accept  the  offer,  and  the  court  shall  ren- 

record    with   its   date,   offer   to  be  de-  der  judgment  accordingly,  with  costs 

faulted  for  a  specified  sum.    If  accepted,  to  the  date  of  the  notice.     If,  after  such 

interest  may  be  added  from  that  date  notice,  the  court  for  good  cause  grants 

to  the  date  of  judgment.      If  the  plain-  the  plaintiff  a  further  time  to  elect,  he 

tiff  does  not  accept  the  offer,  and  fails  may  signify  his  acceptance  within  the 

to  recover  a  sum  as  due  at  the  time  of  time  allowed  and  the  judgment  will  be 

the  offer  greater  than  the  sum  offered,  rendered  as  if  the  acceptance  had  been 

he  recovers  such  costs  only  as  accrued  within    ten    days.      Pub.    Stat.    (1882), 

before  the  offer,  and  the  defendant  re-  c.  167,  §  65. 

covers  costs  accrued  after   that   time.         If  the  plaintiff  does  not  elect  to  ac- 

Rev.  Stat.  (1883),  c.  82.  §  25.  cept  such  offer  and  does  not  recover  a 

Massachusetts.  —  When   a  defendant,  greater  sum  than  the  sum  offered,  not 

25  Volume  5, 


6998.  COMPROMISE.  5999. 

to  be  defaulted  in  the  above  entitled  action  for  the  sum  oi  fifty  dol- 
lars and  costs  of  court,  to  be  taxed  by  the  court  according  to  law.^ 
Dated  tht  fourth  day  oi  January,  i897. 

Richard  Roe. 

2.  By  Agent  or  Attorney. 

Form  No.  5  9  9  8  .* 

(Precedent  in  Jackson  v.  Hampden,  20  Me.  37.) 

13      I     f  Supreme  Judicial  Court, 

l^enooscot,ss.  October  Term,  iS36. 

Leonard  Jackson 

V. 

Inhabitants  of  Hampden. 

And  now  the  said  inhabitants  of  Hampden  on  the  first  day  of  the 
term  of  the  said  court,  by  their  agent,  offer  to  be  defaulted  in  said 
action  for  the  sum  of  ten  dollars  debt  or  damage  and  costs  of  court, 
taxed  by  the  court  according  to  law. 

Hannibal  Hamlin., 
Agent  and  attorney  for  the  town  of  Hampden. 

III.  COMPROMISE  AGREEMENTS. 

1.  The  Agreement.^ 

Form  No.  5999. 

(Precedent  in  Young  v.  Pickens,  45  Miss.  555.) 
Pickens  cr*  Green 

V. 

F.   F.   Chalmers. 

By  way  of  compromise  of  the  above  stated  suit,  pending  in  the 
Circuit  Court  of  Pontotoc  county,  it  is  hereby  agreed  between  the 

including  interest  on  the  sum  recovered  agreement  for  compromise,  such  agree- 

and  damages  from  the  date  of  the  offer,  ments    being    ordinary     contracts     or 

the  defendant  shall  have  judgment  for  stipulations  between  the  parties  or  th^ir 

his  costs  after  said  date.     The  plaintiff,  respective   attorneys.     In   addition    to 

if  he  recovers  damages,  shall  be  allowed  the    precedents  above  given,   see  also 

his  costs  only  to  the  date  of  the  olifer.  precedents  of  compromise  agreements 

Mass.  Pub.  Stat.  (1882),  c.  167,  ^  66.  in  Mullen  v.  Morris,  43  Neb.  596;  Rovv- 

1.  An  offer  in  writing  by  a  defendant  land  v.  Thompson,  73  N.  Car.  510. 

in  an  action  pending  in  court  "to  be        Two  Suits  Involved  in  One  Compromise 

defaulted  for  the  sum  of  seventy  dollars  Agreement.  —  In  Bonney  v.  Morrill,  57 

damages  in  said  action,"  is  a  compli-  Me.  369,  the  negotiations  concerning  a 

ance  with  the  requirements  of  section  compromise  of  two  actions  resulted  in 

22,  chapter  115,  of  the  Maine  Revised  the  drawing  and  signing   and  placing 

Statutes.    Gowdy  z/.  Farrow,  39  Me.  474.  on  file  an  agreement  of  the  following 

2.  Maine.  —  K^v.  Stat.  (1883),  c.  82,  tenor,  omitting  the  detailed  description 
§  25.  of  the  land,  to  wit : 

Massachusetts.  —  Pub.  Stat.  (1882),  c.  "5.  f.    Court,    JCen.    County,    Nov. 

167,  ^§  65,  66.  Term,     186^.      William   B.   Bonney    v. 

Consult  annotations  to  Form  No.  5997,  Samuel  Morrill.     Samuel  Morrill  et  at. 

supra.  V.  William  B,  Bonney  et  al. 

3.  There  is  no  particular  technicality  In  the  above  actions  it  is  agreed  by 
to  be  observed  in  the  drawing  of  an  the  parties  that  the  defendant  in  the 

26  Volume  5. 


6000.  COMPROMISE.  6001. 

said  parties,  that  so  much  of  the  claim  sued  on  shall  be  abated  by 
plaintiffs  as  will  reduce  the  sum  to  ^1,250,  and  that  defendant  will 
withdraw  his  plea  at  the  present  term  of  the  court,  and  suffer  plain- 
tiffs to  take  judgment,  m7  dicet^  for  the  above  sum,  with  stay  of 
execution  six  months. 

Given  at  Pontotoc^  this  10th  day  of  Aprils  a.  d.  i867. 

F.  F.  Chalmers^ 

Israel  Pickens^   surviving  partner 
Pickens  &*  Green. 

Form  No.  6  o  o o. 

(Precedent  in  Phillips  v.  PuUen,  45  N.  J.  Eq.  831.) 

New  Jersey  Supreme  Court, 

Mercer  County  Circuit, 
Ralph  L.  Pullen    ) 

V,  V  In  Case. 

George  E.  Phillips.  ) 

The  said  cause  having  been  settled  between  the  parties  upon  the 
terms  that  the  said  defendant  is  to  pay  the  plaintiff  or  his  attorney 
the  sum  of  seven  thousand  and  five  hundred  doWdLVS  in  full  satisfaction 
of  all  damages  under  said  cause;  it  is  therefore  agreed  by  the 
respective  counsel  of  the  said  parties,  that  the  payment  of  the  said 
sum  shall  be  made  within  two  weeks  from  the  date  hereof,  and 
upon  such  payment  the  said  plaintiff  shall  execute  a  release  to  the 
defendant  in  full  for  the  damages  claimed  in  the  said  action. 
Dated  Trenton,  N.  /.,  /any  20th,  1S86. 

G.  D.   W.  Vroom,  Att'y  for  Defendant, 
Geo.  O.  Vanderbilt,  Att'y  for  Plaintiff. 

2.  Action  upon  the  Agreement. 

Form  No.  6001 .' 
(Conn.  Prac.  Act,  p.  61,  Form  No.  86.)' 

To  the  Sheriff  of  the  county  of  Hartford  or  either  of  the  constables, 
of  the  town  of  Hartford  \n  said  county  —  Greeting: 
By  authority  of  the  state  of  Connecticut  you  are  hereby  commanded 

action  Bonney  v.  Morrill  shall  be   de-  2.  Complaint.  —  For  the  formal  parts 

faulted  and  judgment  entered  for  the  of    complaints    in   other    jurisdictions 

plaintiff  for  so  much  of  the  land   de-  consult  the  title  Complaints,  vol.   4, 

clared  for  in  the  plaintiff's  writ  as  lies  p.  1019. 

easterly  of  a  line  {specifically  described).  For  petition  in  an  action  upon  a  com- 

And  said  Bonney   is  to  have  judgment  promise     agreement     see     Mullen    v. 

for  his  legal  costs.     And   it  is  further  Morris,  43  Neb.   596.     For  the   formal 

agreed,  that  in  the  action  Morrill  et  al  parts   of   petitions,    generally,  consult 

V.  Bonney  et  al.  the  plaintiffs  shall  be-  the  title  Complaints,  vol.  4,  p.  1019. 

come  nonsuit,  the  defendants  recover  For  declaration   in  an  action  upon  a 

their  legal  costs,  and  the  executions  for  compromise  agreement  see  Grandin  v. 

costs  in   both   actions  shall  be  stayed  Grandin,  49  N.  J.  L. 509.   For  the  formal 

until  the  next  term  of  this  court."  parts   of  declarations,   generally,  con- 

1.  For  another  complaint  on  a  com-  suit  the  title  Declarations. 

promise  agreement  see  the  title  Com-  For  special  count  in  a  declaration  in 

PLAINTS,  vol.  4,  Form  No.  5914-  an    action   upon  a  compromise   agree- 

87  Volume  5. 


6002.  COMPROMISE.  6002. 

to  attach,  to  the  value  of  one  thousand  dollars,  the  goods  or  estate  of 
Richard  Roe  of  Windsor  in  said  county,  and  him  summon  to  appear 
before  the  Court  of  Common  Pleas  to  be  held  at  Hartford  in  and  for 
the  county  of  Hartford  on  \h.t  first  Monday  of  February,  \Z80,  then 
and  there  to  answer  John  Doe,  of  said  Hartford,  in  a  civil  action, 
wherein  plaintiff  complains  and  says: 

1.  On  May  15th,  iS79,  an  action  was  pending  in  this  court  between 
the  parties  to  this  action,  brought  by  the  plaintiff  to  recover  from 
the  defendant  a  book  account  of  ^00,  which  the  plaintiff  claimed  to 
be  justly  due,i  but  which  the  defendant  disputed. ^ 

2.  On  said  day,  in  consideration  that  the  plaintiff  promise  to  dis- 
continue his  said  action  forthwith,  if  the  defendant  would  on  /une 
19th,  1 879,  pay  %S00  in  satisfaction  of  said  disputed  claim,  the 
defendant  promised  to  pay  the  plaintiff  said  sum  on  said  last  men- 
tioned day. 

3.  The  plaintiff  accordingly  did  discontinue  said  action,  ^ 

4.  Said  sum  has  not  been  paid. 
The  plaintiff  claims  ^25  damages. 

[Samuel  Short  of  Haddam  is  recognized  in  % to  prosecute, 

etc.] 

Of  this  writ  with  your  doings  herein  make  due  return. 
Dated  at  Hartford  this  third  Az.y  ol  January,  188O. 

3.  The  Setting  Up  the  Agreement  in  Defense. 

Form  No.  6002. 

(Conn.  Prac.  Act,  p.  207,  Form  No.  374.)* 

John  Doe    1  Court  of  Commoji  Pleas. 

vs.  V  Hartford  County. 

Richard  Roe.  )  February  Term,  \?>80. 

I.  Before  this  action,  the  plaintiff  having  demanded  said  sum  (or 
said  goods,  or  otherwise)  from  the  defendant,  the  defendant  refused 

ment  see  Frank  v.  Heaton,  56  111.  App.  herein  for  the  sum  of  %soo  on  a  book 

227.  account,  which  said  plaintiff  claimed  to 

For  bill  in  eqtiity  praying  for  the  rati-  be  justly  due  but  whichsaid  defendant 

fication  and  approval  of  a  compromise  disputed,"  or  as  the  case  may  be. 

agreement  see  Caldwell  v.   Brown,  66  3.  That  the  litigation  was  discontinued 

Md.  295.     For  the  formal  parts  of  bills  according  to  the  compromise  must  be 

in   equity,  generally,  consult   the   title  alleged,     Dolcher  v.  Fry,  37   Barb.  (N. 

Bills  in  Equity.  Y.)  152. 

1.  A  shadow  of  claim  on  the  part  of  the  4.  Answer.  —  For  the  formal  parts  of 
plaintiff  should  be  averred.  Dolcher  v.  answers  in  other  jurisdictions  consult 
Fry,  37  Barb.  (N.  Y.)  152.  But  the  the  title  Answers  in  Code  Pleading, 
complaint  need  not  allege  that  the  plain-  vol.  i,  p.  i^i^etseq. 

tiff's  claim  was  a  valid  one.     Palmer  Pleas. —  For  the  formal  parts  of  pleas, 

V.  North,  35    Barb.  (N.  Y.)  282;  Moore  generally,  consult  the  title  Pleas. 

V.  Powell,  I  Disney  (Ohio)  144.  Accord  and  Satisfaction,  —  For  forms 

2.  On  Compromise  of  Claim  Not  Sned  On.  of  pleas  and  other  answers  setting 
—  Insteadof  paragraph  I  in  text,  insert:  up  a  similar  defense  consult  the  title 
"On  iT/aj /jM,  1879,  there  were  pending  Accord  and  Satisfaction,  vol.  i,  p. 
between  the  parties  to  this  action  arbi-  i8r  et  seq. 

tration  proceedings  upon  a  claim  of  the  In  Dabney  v.  McFarlin,  (Tex.  Civ. 
plaintiff  herein  against  the   defendant    App.   1896)  34  S.    W.  Rep.   142,  to  the 

28  Volume  5. 


6002. 


CONCEALED  WEAPONS. 


6002. 


to  pay  the  same  because  {Here  state  facts  showing  the  claim  to  have 
been  a  doubtful  one^. 

2.  The  parties  thereupon  agreed  to  compromise  said  claim,  and 
that  the  defendant  should  pay  and  the  plaintiff  accept  $56?  in  satis- 
faction thereof. 

•   3-  On  July  1st,  iS79,  defendant  so  paid  and  the  plaintiff  so  accepted 
said  sum. 

And  therefore  he  prays  judgment. 

By  Jeremiah  Mason,  his  attorney. 


petition  filed  in  the  county  court  of 
Hardiman  county  by  R.  L.  Dabney 
against  J.  L.  McFarlin,  G.  S.  White  and 
William  F.  Brice,  to  recover  judgment 
on  a  writ  of  error  bond,  defendant 
pleaded  as  follows,  omitting  the  formal 
parts: 

"That  in  consideration  of  his  deliv- 
ering immediate  possession  of  the  land 
and  premises  to  plaintiff,  and  renting 
the  same  back  for  one  year  at  a  stipu- 
lated price,  and  waiving  citation  and 
entering  his  appearance  in  the  suit  to 
be  filed  on  the  two  %i,8jj.6o  notes,  for 
foreclosure  of  the  vendor's  lien  on  the 
land,  and  in  not  resisting  the  claim, 
but  allowing  judgment  to  go  by  default, 
and  allowing  foreclosure  and  sale,  and 
agreeing  that  he  would  not  bid  at  the 
sale  against  plaintiff,  but  would  allow 
plaintiff's  attorney  to  bid  in  the  land, 
he,  the  said  Lewis  M.  Dabney,  as  agent 
of  R.  L.  Dabney,  with  authority  so  to 
do,  agreed  to  cancel  and  release  the 


judgment  to  be  obtained  on  the  two 
principal  notes,  as  well  as  the  judgment 
and  bonds  sued  on  in  this  case;  and 
that  he,  McFarlin,  did  and  performed, 
fully,  and  in  good  faith,  all  that  he  had 
agreed  to  do  as  aforesaid;  and  that, 
therefore,  he  and  his  sureties  on  said 
bonds  are  discharged  from  all  liability 
thereon." 

It  was  held  that  demurrer  to  this 
answer,  because  it  failed  to  show  con- 
siderations, was  correctly  overruled  and 
that  the  release  of  the  judgment  on 
both  claims  was,  under  the  evidence, 
clearly  within  the  scope  of  the  son's 
apparent  authority. 

To  avoid  a  settlement  pleaded  by  de- 
fendant to  a  petition,  claiming  a  bal- 
ance on  contract  for  the  sale  of  cattle, 
for  which  a  note  was  given,  the  plaintiff 
must  allege  mutual  mistake  or  fraud 
in  settlement.  Williams  v.  Dean,  (Tex. 
Civ.  App.  1897)  38  S.  W.  Rep.  1024. 


CONCEALED  WEAPONS. 

See  the  title  CARRYING  WEAPONS,  vol.  4,  p.  35 1. 

29  Volume  5. 


CONCEALMENT  OF  BIRTH  OR  DEATH. 

By  Mel  Emerson  Peters. 

I.  OF  A  CHILD  GENERALLY,  30. 

II.  OF  A  BASTARD  CHILD,  31. 

1.    Generally^  31. 

a.  Alleging  Manner  of  Concealment,  33. 

3,  For  Being  Delivered  in  Secret,  35. 

III.  AIDING,  ABETTING  AND  ASSISTING,  35. 

CROSS-REFERENCES. 

For  matters  of  Procedure,  see  the  title  CONCEALMENT  OF 
BIRTH  OR  DEATH,  4  Encyclopedia  of  Pleading  and 
Practice,  p.  624. 

For  matters  of  Law  and  Evidence,  see  the  title  CONCEALMENT  OF 
BIRTH  OR  DEATH,  6  American  and  English  Encyclo- 
paedia OF  Law  (2d  ed.),  p.  424. 

I.  Of  a  Child  Generally. 

Form  No.  6003.' 

(Precedent  in  State  v.  Stewart,  93  N.  Car,  540.)' 

State  of  North  Carolina,  \  Superior  Court, 
Burke   County.  \  Spring  Term,  x%85. 

The  jurors  for  the  State,  upon  their  oath,  present  X^izX  Laura 
Stewart,  late  of  the  county  of  Burke,  on  the  first  day  of  March,  a.  d. 
\%85,  with  force  and  arms  at  and  in  the  county  aforesaid,  unlawfully 
and  wilfully  did  endeavor  to  conceal  the  birth  of  a  new-born  male 
child,  not  yet  named,  of  her,  the  said  Laura  Stewart,  by  then  and 

1.  North  Carolina.  —  Code  (1883),  §  ment  was  found  was  so  vague  and 
1004.  See  also  the  following  statutes  indefinite  in  its  terms  as  not  to  create  a 
of  similar  tenor,  to  wit:  criminal  offense,  and,  second,  that  the 

Minnesota.  —  Stat.  (1894),  §  6548.  indictment  itself  failed  to  set  out  and 

Missouri.  —  Rev.  Stat.  (1889),  §3479.  charge  an  indictable  oflfense;  but  it  was 

New     York.  —  Pen.    Code,    %    296,  held   that   a    refusal     to    sustain    this 

Birds.  Rev.  Stat.  (1896),  §  483.  motion,  and  a  motion  in  arrest  of  judg- 

2.  Upon  her  arraignment  the  defend-  ment  for  the  same  reason,  was  no 
ant  moved  to  quash  this  indictment,  error.  The  court  said:  "The  statute 
drawn  under  N.  Car.  Code  (1883),  §  constitutes  the  secret  burying  or  other 
1004,  upon  two  grounds:  First,  that  secret  disposal  of  a  dead  child,  born 
the  enactment  upon  which  the  indict-  alive,  a   misdemeanor;     and    also   the 

30  Volume  5. 


6004.       CONCEALMENT  OF  BIRTH  OR  DEATH.      6004. 

there  secretly  placing  and  leaving  the  dead  body  of  said  child  in  a 
secret  place,  contrary  to  the  form  of  the  statute  in  such  cases  made 
and  provided,  and  against  the  peace  and  dignity  of  the  state. 

J.  S.  Adams^  Solicitor. 

II.  Of  a  Bastard  Child.^ 
1.  Generally. 

Form  No.  6004.' 

In  the  Circuit  Court,  for  the  Third  Judicial  Circuit  of  Florida, 
Suwannee  County,  November  Term,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-seven. 

■     ^     ^       I  Indictment  for  Concealing   Death  of  Bastard 
against  >  p,  ..  .  * 

Mary  Doe.  ) 

In  the  name  and  by  the  authority  of  the  %t^\.t.  oi Florida:  The 
grand  jurors  for  the  state  of  Florida  impaneled  and  sworn  to  inquire 
and  true  presentment  make  in  and  for  the  body  of  the  county  of 
Suwannee,  upon  their  oath  do  present,  that  Mary  Doe,  single  woman, 
late  of  the  said  county  of  Suwamue,  and  state  of  Florida,  on  the  first 
day  of  October,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-seven,  in  the  county  and  state  aforesaid,  being  then  and 
there  pregnant  and  big  with  a  male  {ox  female)  child,  afterward,  to 
wit,  on  the  same  day  and  year  aforesaid,  was  then  and  there  delivered 
of  the  said  child  alive,  which  said  child  being  so  delivered  as  afore- 
said, and  so  being  the  issue  of  the  body  of  her  the  said  Alary  Doe, 
was  by  the  laws  of  this  state  a  bastard;  and  that  the  said  child  after- 
ward, to  wit,  on  the  same  day  and  year  aforesaid,  in  the  county  and 
state  aforesaid,  sickened  and  died;  and  that  afterward,  to  wit,  on  the 
same  day  and  year  aforesaid,  in  the  county  of  Suwannee  aforesaid,  the 
said  Mary  Doe,  as  soon  as  the  child  was  dead,  did  then  and  there 
unlawfully  conceal  the  death  of  said  bastard  child,  the  said  issue  of 
her  body,  so  that  it  might  not  be  known  whether  such  child  was  born 
alive  or  not,  or  whether  it  was  murdered  or  not;  against  the  peace 
and  dignity  of  the  state  of  Florida. 

Paul  Jones,  State's  Attorney 
for  the  /"i^/r^/ Judicial  Circuit  of  Florida. 


endeavor  to  conceal  the  birth  of  such  Georgia.  —  3  Code  (1895),  §  79. 

child.     This  latter  is  the  criminal  act  Massachusetts.  —  Pub.  Stat.  (1882),  c. 

imputed    to    the    accused,    and    it    is  207,  S  ^i- 

brought   within   the   condemnation   of  Michigan.  —  How.  Anno.  Stat.  (1882), 

the  law  by  the   averment  of  hiding  of  §  9284. 

the  body  in  a  secret  place,  whereby  its  Oregon.  —  Hill's  Anno.  Laws  (1892), 

birth  is  attempted  to  be  concealed."  §  1865. 

1.  See  also  the  title  Bastardy,  vol.  3,  Rhode  Island.  —  Gen.  Laws  (1896),  c. 
Forms  Nos.  4064  to  4066.  281,  §  10. 

2.  Florida.  —  Rev.  Stat.  (1892),  §  2393.  Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
See  also  similar  statutes  as  follows:  (1889),  §  4585. 

81  Volume  5. 


6005.      CONCEALMENT  OF  BIRTH  OR  DEATH.      6006. 

Form  No.  6005.' 

State  of  Maine. 

Kennebec^  ss.  At  the  Superior  Court  begun  and  held  at  Augusta, 
within  and  for  said  county  of  Kennebec,  on  t\iQ.  first  Tuesday  of  Septem- 
ber, in  the  year  of  our  Lord  eighteen  hundred  and  ninety-six,  the  grand 
jurors  for  said  state  upon  their  oath  present  that  Mary  Doe,  of 
Augusta,  in  the  county  of  Kennebec,  single  woman,  at  Augusta,  in  said 
county  of  Kennebec,  on  the  fourth  day  of  July,  in  the  year  of  our 
Lord  eighteen  hundred  and  ninety-six,  being  then  and  there  pregnant 
and  big  with  a  male  (or  female^  child,  was  then  and  there  willingly 
delivered  in  secret  of  said  male  {or  female)  child,  the  issue  of  the 
body  of  her  the  said  Mary  Doe,  which  said  child,  being  so  delivered 
as  aforesaid,  would,  under  the  laws  of  this  state,  be  a  bastard  if  born 
alive;  and  that  the  said  child,  then,  to  wit,  on  the  day  and  year  afore- 
said, died;  and  the  said  J/^iry  Z^^*?,  afterward,  to  wit,  on  the  same 
day  and  year  aforesaid,  in  the  county  of  Kennebec  aforesaid,  did  then 
and  there  conceal  the  death  of  said  child,  the  issue  of  her  body  as 
aforesaid,  so  that  it  is  not  known  whether  said  child  was  born  dead, 
or  alive  and  was  murdered;  against  the  peace  of  said  state,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided. 

Freeman  P.  Lane,  Foreman. 

Dennis  Kimberly,  County  Attorney. 

•   Form  No.  6006.' 

In  the  Court  of  Quarter  Sessions  of  the  Peace  for  the  County  of 
Dauphin,  February  Session,  \W7. 

Dauphin  County,  ss.  The  grand  inquest  of  the  commonwealth  of 
Pennsylvania  inquiring  in  and  for  the  county  of  Dauphin,  upon  their 
respective  oaths  and  affirmations  do  present  that  Mary  Doe,  late  of 
the  county  of  Dauphin  aforesaid,  on  \.\i& first  day  of  January,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  ninety-seven,  at  and  in 
the  county  aforesaid,  being  big  with  a  male  {ox  female)  child,  the 
same  day  and  year,  in  the  county  aforesaid,  did  bring  forth  the  said 
child  of  the  body  of  her  the  said  Mary  Doe,  which  said  male  (or 
female)  child,  if  it  were  born  alive, ^  would  by  the  law  of  this  common- 
wealth be  a  bastard;  and  the  said  male  (or  female)  child  afterward, 
to  wit,  on  the  same  day  and  year  aforesaid,  at  and  in  the  county 
aforesaid,  died,*  and  the   ?,SL\d  Mary  Doe,  afterward,   to   wit,   on  the 

1.  Maine.  —  Rev.  Stat.  (1883),  c.  124,  The  North  Dakota  statute  concerning 
§  7.  For  a  statute  nearly  identical  see  the  concealment  of  death  relates  only 
N.  H.  Pub.  Stat.  (1891),  p.  739,  §  14.  to  children  under  the  age  of  ten  years. 

2.  Pennsylvania.  —  Bright.  Pur.  Dig.  3.  Child  Bom  Alive. —  It  is  not  neces- 
(1894),  p.  472,  §  3.  See  also  the  follow-  sary  in  the  indictment  to  allege  that  the 
ing  statutes,  which  are  nearly  identical  child  was  born  alive.  Douglass  v. 
with  the  above,  to  wit:  Com.,  8  Watts  (Pa.)  535. 

Colorado.  —  Mills' Anno.  Stat.  (1891),        4.  Death  of  Child  muflt  be  Alleged. — 

§  1195.  The   death  of   the   child   must  be  dis- 

Illinois.  —  Starr    &    C.    Anno.    Stat,  tinctly  averred,    and    nothing   can    be 

(1896),  p.  1249,  par.  93.  taken  byway  of  intendment  or  recital 

Nevada.  — Gen.  Stat.  (1885),  §  4597.  to  supply  the  want  of  certainty   in  this 

North  Dakota. —  Rev.    Codes    (1895),  respect  in  the  indictment.     Douglass  p. 

§7179-  Com.,  8  Watts  (Pa.)  535. 

82  Volume  5. 


6007.      CONCEALMENT  OF  BIRTH  OR  DEATH.      6007. 

said^rj/  day  oi  January,  in  the  year  aforesaid,  at  and  in  the  county 
aforesaid,  as  soon  as  the  said  male  {or  female)  child  was  born,  did 
endeavor^  privately  to  conceal^  the  death  of  the  said  child,  so  that 
it  might  not  come  to  light  whether  it  were  born  dead  or  alive,  or 
whether  it  was  murdered  or  not;  contrary  to  the  form  of  the  act  of 
general  assembly  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  commonwealth  oi  Pennsylvania. 

Cornelius  Darragh,  District  Attorney. 

2.  Allegfing  Manner  of  Concealment. 

Form  No.  6007. 

(Precedent  in  Sullivan  v.  State,  36  Ark.  65.)* 

[State  of  Arkansas,      }   r  j  ^     j        /^-       .,  /-       ^  ^4, 

^  T  J  ^     J        r-       \      \  Independence  Circuit  Court.  * 

Independence  K^ownty.  j         ^  -■ 

The  grand  jury  of  Independence  county  [in  the  name  and  by  the 
authority  of  the  state  of  Arkansas^  accuse  Mary  O.  Sullivan  of  the 
crime  of  endeavoring  privately  to  conceal  the  death  of  issue  of  her 
body,  committed  as  follows,  to  wit:  The  said  Mary  O.  Sullivan,  on 
the  twelfth  day  of  May,  188O,  in  the  county  aforesaid,  then  and  there 
being  pregnant,  gave  birth  to  a  child,  [which  by  the  laws  of  this  state 
was  a  bastard,]*  which  said  child  then  and  there  died;®  and  that  the 
said  Mary  O.  Sullivan  then  and  there  feloniously  did  endeavor  pri- 
vately to  conceal  the  death  of  said  child,  that  it  might  not  come  to 
light,  by  then  and  there  feloniously  and  secretly  depositing  the  corpse 
of  said  child  in  a  well,'  against  the  peace  [and  dignity  of  the  state 
of  Arkansas. 

Daniel  Webster,  Prosecuting  Attorney 

J'i^/></ Judicial  Circuit  of  Arkansas.'\^ 

In  Boyles  v.  Com.,  2  S.  &  R.  (Pa.)40,  2.  Kanner  of  Concealment.  —  It  is   not 

the   portion   of  the   indictment   under  necessary  to  set  forth  in  the  indictment 

consideration    was    the     averment    of  the  manner  or  by  what  acts  the  accused 

death,  which  was  as  follows,  and  was  endeavored  to  conceal  the  death  of  the 

held  to  be  suflScient:  "  Which  same  in-  child.     Boyles  v.  Com.,  2  S.  «&  R.  (Pa.) 

fant,  so  being  brought  forth  alive,  was,  43. 

by  the  laws  of  this  commonwealth,  a  8.  Arkansas.  —  Sand.  k.  H.  Dig. 
bastard,  and  that  the  said  Sarah  Boyles  (1894),  §§  1666,  1667. 
afterwards,  to  wit,  the  same  day  and  4.  The  words  enclosed  by  [  ]  will  not 
year  aforesaid  (the  sa.\d  female  infant  be  found  in  the  reported  case,  but  have 
having,  on  the  day  and  year  last  afore-  been  added  to  render  the  form  corn- 
said,  at  the  township  and  county  afore-  plete. 

said,  died),  did  endeavor,  privately,  to  5.  Averment  that  Child  was  a  Bastard. — 
conceal  the  death  of  the  sa.\A  female  in-  The  words  "  which  by  the  laws  of  this 
fant,  so  that  it  might  not  come  to  light  state  was  a  bastard"  have  been  inserted, 
whether  the  said/<fwa/f  infant  was  born  as  in  this  case  it  was  held  that  the  in- 
dead  or  alive,  or  whether  the  sdHA  female  dictment  must  allege  that  the  child  was 
infant   was   murdered  or  not,  contrary  a  bastard. 

to  the     form    of    the    act  of    general  6.  Averment  of  Death  of  Child.  —  The 

assembly."  indictment    must    expressly   and    dis- 

1.  Endeavor    to    Conceal.  —  An     "en-  tinctly  allege  that  the   child   is   dead, 

deavor  to  conceal,"  and  not  "  conceal-  But  it  need  not  state  whether  the  child 

ing,"   constitutes    the    offense,   and    it  died  before,  at  or  after  its  birth.     State 

should  be  so  alleged  in  the  indictment,  v.  Ellis,  43  Ark.  93. 

Boyles  v.  Com.,  2  S.  &  R.  (Pa.)  43.  7.  Kanner  of  Concealment.  —  The  in- 

5E.  ofF.  P.  — 3.                            88  Volumes. 


6008.      CONCEALMENT  OF  BIRTH  OR  DEATH.      6008. 

Form  No.  6008.* 

Nicholas  Circuit  Court. 
The  Commonwealth  of  Kentucky  ) 
against  > 

Jane  Doe.  ) 

The  grand  jury  of  Nicholas  county,  in  the  name  and  by  the  authority 
of  the  commonwealth  of  Kentucky,  accuse  Jane  Doe  of  the  crime  of 
endeavoring  privately  to  conceal  the  death  of  a  bastard  child,  the  issue 
of  her  body,  committed  as  follows,  to  wit :  The  said  Jane  Doe,  on  the 
twenty-seventh  day  of  November,  i897,  in  the  county  aforesaid,  being 
then  and  there  pregnant  and  big  with  a  male  {or  female)  child,  was 
then  and  there  delivered  of  the  said  child,  the  issue  of  her  body,  which 
said  child,  if  the  same  had  been  born  alive,  would,  by  the  laws  of  this 
commonwealth,  have  been  a  bastard,  and  afterward,  to  wit,  on  the  same 
day  and  year  last  aforesaid,  in  the  county  aforesaid,  the  said  Jane 
Doe  did  unlawfully  and  feloniously  endeavor  privately,  by  drowning^ 
the  said  child,  to  conceal  the  birth  thereof,  so  that  it  might  not  be 
known  whether  the  said  child  were  born  alive  or  not,  against  the  peace 
and  dignity  of  the  commonwealth  oi  Kentucky. 


dictment  need  not  allege  in  what  man- 
ner or  by  what  acts  the  mother  endeav- 
ored to  conceal  the  death  of  her  child. 
State  V.  Ellis,  43  Ark.  94. 

1.  Kentucky.  —  Gen.  Stat.  (1888),  p. 
410,  §  14.  See  also  a  similar  statute  in 
Mo.  Rev.  Stat.  (1889),  §  3479.  The 
Missouri  iX.2.\.\iX.^,  however.does  not  con- 
fine the  punishment  to  the  concealment 
of  the  death  of  a  bastard  child. 

Precedent.  —  Jn  State  v.  Joiner,  4 
Hawks  (N.  Car.)  351,  one  count  of  the 
indictment  was  as  follows  : 

"  That  the  said  Rinney  foiner ,  on  the 
twenty-seventh  of  November  "  etc.,  "  be- 
ing big  with  a  certain  wa/^  child,  after- 
wards, to  wit,  on  the  same  day  and 
year  last  aforesaid,  at  and  in  the  county 
of  Pitt  aforesaid,  by  the  providence 
of  God,  did  bring  forth  the  said  child 
of  the  body  of  her  the  said  Rinney 
Joiner,  alone  and  in  secret,  which  said 
male  child,  if  the  same  had  been  born 
alive,  would  by  the  laws  of  this  state 
have  been  a  bastard;  and  that  the  said 
Rinney  Joiner,  being  moved  by  the  in- 
stigation of  the  devil,  afterwards,  to 
wit,  on  the  said  twenty-seventh  day  of 
November,  in  the  year,"  etc.,  "  as  soon 
as  the  said  male  child  was  born,  with 
force  and  arms,  at  and  in  the  county  of 
Pitt  aforesaid,  unlawfully,  wickedly 
and  wilfully,  did  throw,  put  and  place 
the  said  male  child  under  and  beneath 
a  crib  there  situate;  and  the  said  male 


child  did  then  and  there,  under  and  be- 
neath the  crib  aforesaid,  unlawfully, 
wickedly  and  wilfully,  hide,  secrete 
and  conceal,  she  the  said  Rinney  Joiner, 
in  manner  and  form  last  aforesaid,  en- 
deavoring privately  so  to  conceal  the 
death  of  the  said  male  child  that  it 
might  not  come  to  light  whether  the 
said  child  were  born  alive  or  not,  but  be 
concealed,  against  the  form  of  the  stat- 
ute." 

This  indictment  was  drawn  under  an 
early  North  Carolina  statute  nearly 
identical  with  the  statutes  of  Kentucky 
and  Missouri.  For  an  indictment  under 
the  present  North  Carolina  statute  see 
supra.  Form  No.  6003. 

2.  Means  of  Concealment.  —  The  statute 
requires  a  physical  concealmeftt  of  the 
bastard  child,  either  by  drowning, 
burying,  or  in  some  other  way,  there- 
fore the  acts  constituting  the  offense  of 
concealment  must  be  stated  in  the  in- 
dictment; and  an  allegation  that  the 
accused  "  did  feloniously  conceal  the 
birth  of  a  bastard  child,  the  issue  of  her 
body,  by  secreting  the  said  child  so  that 
it  might  not  be  known  whether  or  not 
it  had  been  born  alive,  said  child  being 
dead  when  found,"  is  only  the  state- 
ment of  a  conclusion  of  law,  and  is  in- 
sufficient to  support  a  judgment  of 
conviction.  Foster  v.  Com.,  12  Bush 
(Ky.)  373- 


34 


Volume  5. 


6009.      CONCEALMENT  OF  BIRTH  OR  DEATH.      6010. 
3.  Fop  Being  Delivered  in  Secret. 

Form  No.  6009 .' 

To  the  Hon,  Superior  Court  for  the  County  of  New  Haven^  now  in 
session : 
Daniel  Webster,  of  New  Haven,  Esquire,  attorney  for  the  state  in  and 
for  said  county,  here  in  court  informs  that  Jane  Doe,  of  said  New 
Haven,  was  pregnant  of  a  child  of  her  body,  which  when  born  would 
be  a  bastard,  and  on  the  //«>^day  oi  January,  i2>98,  at  said  town  of 
New  Haven,  she  unlawfully  concealed  said  pregnancy,  and  was  then 
and  there  willingly  and  intentionally  delivered  in  secret  by  herself  of 
•  her  said  child,  the  issue  of  her  body,  against  the  peace,  and  contrary 
to  the  statute  in  such  case  made  and  provided ;  wherefore  the  said  attor- 
ney prays  that  a  bench  warrant  may  issue  against  the  said  Jane  Doe, 
that  she  may  be  arrested  and  brought  before  this  court  to  answer  to  this 
information  and  be  dealt  with  according  to  law. 

Daniel  Webster,  Attorney. 

III.  AIDING,  ABETTING  AND  ASSISTING.^ 

i 

Form  No.  6010.* 

Providence,  sc.  At  the  Court  0/  Common  Pleas  of  the  State  of 
Rhode  Island  and  Providence  Plantations  holden  at  Proindence,  within 
and  for  the  county  of  Providence,  on  the  first  Monday  of  February,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight. 

The  grand  jurors  for  the  state  oi  Rhode  Island  and  Proindence  Plan- 
tations, in  and  for  the  county  of  Providence,  upon  their  oaths  present 
that  Jane  Doe,  of  Cranston  in  said  county,  spinster,  on  the  eleventh 
day  of  November,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-seven,  with  force  and  arms  at  Cranston  aforesaid,  in  the 
aforesaid  county  of  Providence,  being  big  with  a  certain  child,  the 
same  day  and  year  last  aforesaid,  at  Cranston  aforesaid,  did  bring 
forth  the  said  child  of  the  body  of  her  the  said  Jane  Doe,  which  said 
child  so  being  brought  forth  alive  was,  by  the  laws  of  this  state,  a 
bastard,  and  that  the  said  Jane  Doe  afterward,  to  wit,  on  the  same 
day  and  year  last  aforesaid,  at  said  Cranston,  did  conceal  the  birth  of 
said  child,  so  that  it  might  not  appear  whether  said  child  was  born 
dead  or  alive,  and  that  Richard  Roe  of  said  Cranston,  laborer,  and 
Cynthia  Roe,  wife  of  the  said  Richard,  at  said  Cranston,  on  the  said 
eleventh  day  of  November,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-seven,  did  feloniously  and  wickedly  aid,  assist, 

1.  Connecticut.  —  Gen.  Stat.  (1888),  §  was  held  that,  upon  proper  proof,  the 
1533-     See  also  a  similar  statute  in  iV,rif    defendants  might  be  convicted  of  aid- 

Jersey.     N.  J.  Gen.  Stat.  (1895),  p.  1064,  ing,  assisting,  etc.,  the  commission  of 

§  83.  the   offense,    although    the   indictment 

2.  See  also  Reg.  v.  Bird,  2  C.  &  K.  does  not  charge  them  with  being 
817,  61  E.  C.  L.  817,  for  the  substance  "present"  and  aiding,  abetting,  etc. 
of  a  sufficient  indictment.  The  indictment  was  under  R.    I.  Stat. 

3.  This  is  substantially  the  second  (1844),  §  86,  which  statute  is  identical 
count  of  the  indictment  in  State  v,  with  R.  I.  Gen,  Laws  (1896),  c.  281, 
Sprague,  4  R.  I.  257,  in  which  case  it  §  10, 

86  Volume  5. 


6010.  CONDEMN  A  TION  PROCEEDINGS.  6010. 

abet,  counsel,  hire,  commission  and  procure  the  said  Jane  Doe  the 
said  offense  in  manner  and  form  aforesaid  to  do  and  commit,  against 
the  form  of  the  statute  in  such  case  made  and  provided  and  against 
the  peace  and  dignity  of  the  state. 

Daniel  Webster,  Attorney-General. 


CONDEMNATION   PROCEEDINGS. 

See  the  title  EMINENT  DOMAIN. 

36  Volume  5. 


CONFESSION  AND  AVOIDANCE.^ 

By  Thomas  E.  O'Brien. 

I.  BY  PLEA  OR  ANSWER,  37. 
II.  BY  REPLICATION  OR  REPLY,  42. 
III.  BY  NOTICE  OF  SPECIAL  DEFENSE,  44. 

CROSS-REFERENCES. 

For  Forms  of  other  Pleas  and  Answers  setting  up  new  matter  in  Con- 
fession and  Avoidance,  see  the  various  special  pleas  treated  in  this 
work,  such  as  ACCORD  AND  SATISFACTION;  AN- 
SWERS IN  CODE  PLEADING;  ARBITRATION  AND 
AWARD;  CHAMPERTY  AND  MAINTENANCE; 
COMPROMISE;  CONSIDERATION;  COVERTURE; 
DECEIT;  DURESS;  ESTOPPEL;  FALSE  REPRE- 
SENTATIONS; FRAUD;  DRUNKENNESS;  IN- 
FANCY; INSANITY ;  INSOLVENCY ;  LACHES; 
PAYMENT;  PERFORMANCE;  PLEAS;  RELEASE 
AND  DISCHARGE;  RES  JUDICATA;  SET-OFF 
AND  COUNTERCLAIM;  STATUTE  OF  FRAUDS; 
STATUTE  OF  LIMITATIONS;  USURY;  etc.,  and  the 
GENERAL  INDEX  to  this  work. 

For  matters  of  Procedure,  see  the  title  CONFESSION  AND  A  VOID- 
ANCE,  4  Encyclopaedia  of  Pleading  and  Practice,  p.  664 
et  seq. 

I.  BY  PLEA  OR  ANSWER.2 

1.  Specially  Pleaded.  —  New  matter  in  2.  Forformal  parts  of  pleas,  generally, 
confession  and  avoidance  must  be  consult  the  title  Pleas;  and  for  the 
specially  pleaded,  i  Chit.  PI.  (i6th  Am.  formal  parts  of  answers,  generally,  con- 
ed.) 518,  532,  535;  Parker  z-.  Lowell,  11  suit  the  title  Answers  in  Code  Plead- 
Gray  (Mass.)  353;  Blair  v.  Cofifman,  2  ing. 

Overt.  (Tenn.)  176;  Maggort  v.  Hans-        The  plea  moat  admit  the  facts  alleged 

barger,    8    Leigh    (Va.)    540;    Churcill  in  the  declaration  and  avoid  them  by 

V.  Bauman,    95   Cal.   545;    Stringer   v.  matter   which   plaintiff  would    not   be 

Breen,  7  Ind.  App.  559;  Norris  v.  Casel,  bound  to  prove  if  the  general  issue  only 

90  Ind.    143;    Byrne   v.  Hibernia  Nat.  had  been  pleaded,      i  Chit.   PI.   (i6th 

Bank,    31    La.    Ann.    84;    Nash   v.  St.  Am.   ed.)   552;  Taylor  v.    Cole,    32  T. 

Paul,    II   Minn.    174;  Musser  v.  Adler,  R.  298;  Manchester  v.  Vale,   i   Saund. 

86  Mo.   445;  Moore   v.   Ringo,  82  Mo.  27;   Griffith  v.   Eyles,   i    B.  &   P.  413; 

468;  George  v.  Williams,  58  Mo.  App.  M'Pherson  v.  Daniels,  10  B.  &  C.  263; 

138;    Hardwick    v.    Cox,   50  Mo.   App.  21  E.  C.  L.  69;  Ocean  Steamship  Co.  v. 

509;  Paige  -J.  Wiliett,  38  N.  Y.  28;  Roe  Williams,  69  Ga.  251;  Augusta  Factory 

V.  Angevine,  7  Hun(N.  V.)  679;   Dres-  v.  Barnes,  72  Ga.  217;  Phelps  v.  Thur- 

ler  V.   Hard,    57  N.  Y.  Super.  Ct.  192;  man,  74  Ga.  837;  Seymour  v.  Bailey,  76 

Lupo  V.  True,  16  S.  Car.  587,  Ga.   340;   Anson  v.   Dwight,    18  Iowa. 

87  Volume  5. 


6011. 


CONFESSION  AND  AVOIDANCE. 


6011. 


242;  Martin  v.  Swearengen  17  Iowa 
349;  Morgan  v.  Hawkeye  Ins.  Co.,  37 
Iowa  360;  State  v.  Williams,  48  Mo. 
212;  Bauer  z/.  Wagner,  39  Mo.  385;  Day 
V.  Mill-Owners'  Mut.  F.  Ins.  Co.,  75 
Iowa  70c;  Keedy  v.  Long,  71  Md.  38S; 
Brandegee  v.  National  Ins.  Co.,  20 
Johns.  (N.  Y.)  333;  Auburn  Bank  v. 
Weed,  19  Johns  (N.  Y.)  300;  Conger  v. 
Johnston,  2  Den.  (N.  Y.)  96;  McMurray 
V.  Gifford,  5  How.  Pr.  (N.  Y.  Supreme 
Ct.)  15;  Brown  v.  Artcher,  i  Hill  (N.  Y.) 
266;  Tobias  v.  Rogers,  3  Code  Rep.  (N. 
Y.  Supreme  Ct.)  156;  Blood  v.  Adams, 
33  Vt.  52;  Dibble  v.  Duncan,  2  McLean 

(U.S.)  553. 

But  the  cause  of  action  need  not  be 
confessed  precisely  as  alleged.  Cooper 
V.  Smith,  119  Ind.  315. 

A  party  is  not  required  to  admit  all 
the  facts  alleged  in  order  to  admit  some 
of  them,  or  to  deny  all  the  facts  in  order 
to  deny  a  part  of  them.  He  may  admit 
such  facts  as  he  supposes  to  be  true, 
and  excuse  or  avoid  them,  and  deny 
the  alleged  facts  which  he  believes  are 
not  true.  State  v.  St.  Paul,  etc..  Turn- 
pike Co.,  92  Ind.  42. 

Where  the  defendant's  pleas  admitted 
in  effect  the  making  of  a  contract  and 
its  subsequent  breach  by  the  defendant, 
but  one  of  which  set  up  a  justification, 
and  two  others  set  up  a  judgment,  they 
were  held  to  be  good  pleas  by  way  of 
confession  and  avoidance.  Keedy  v. 
Long,  71  Md.  388. 

Must  Answer  the  Whole  Declaration  or 
Count.  —  Manchester  v.  Vale,  I  Saund. 
28,  note  3;  Racer  v.  State,  131  Ind.  401; 
Hutchinson  v.  Sangster,  4  Greene 
(Iowa)  341;  Armfield  v.  Nash,  31  Miss. 
366;  Ayrault  v.  Chamberlain,  33  Barb. 
(N.  Y.)  237;  Bebout  v.  Simmonds,  Tap- 
pan  (Ohio)  260. 

Where  new  matter  is  pleaded  as  a  par- 
tial defense  under  the  code,  unless  it  is 
expressly  so  stated  it  will  be  assumed 
the  matter  is  pleaded  as  a  complete  de- 
fense. Thompson  ?'.  Halbert,  109  N. 
Y.  329;  Mattice  v.  Wilcox,  (Supreme  Ct.) 
36  N.  Y.  St.  Rep.  915. 

The  defense  need  not  he  stated  com- 
pletely in  one  paragraph  or  count.  It 
may  refer  to  matter  in  other  counts, 
and  the  matter  thus  referred  to  may  be 
considered  as  a  part  of  the  count  in 
which  it  is  referred  to.  Dexter  v.  Al- 
fred, (Supreme  Ct.)  46  N.  Y.  St.  Rep. 
791;  Bogardus  v.  New  York  L.  Ins.  Co., 
101  N.  Y.  328. 

Unless  the  answer  in  terms  adopts  or 
refers  to  matter  contained  in  some 
other  count,  it  will  be  tested  as  a  plead- 


ing alone  by  the  matter  itself  contained. 
Baldwin  v.  U.  S.  Telegraph  Co.,  54 
Barb.  (N.  Y.)  517. 

Facts  mast  b^  Stated  upon  which  the 
Defense  Belies.  —  Raymond  v.  Pritchard. 
24  Ind.  320;  Knowles  v.  Gee,  4  How. 
Pr.  (N.  Y.  Supreme 'Ct.)  317;  Russell 
V.  Clapp,  4  How.  Pr.  (N.  Y.  Supreme 
Ct.)  347;  Glenny  v.  Hitchins,  4  How. 
Pr.  (N.  Y.  Supreme  Ct.)  98;  Williams  v. 
Hayes,  5  How.  Pr.  (N.  Y.  Supreme  Ct.) 
470;  McMurray  v.  Gifford,  5  How.  Pr. 
(N.  Y.  Supreme  Ct.)  15;  Weed  v.  Hill, 
2  Miles  (Pa.)  122;  Elmore  v.  Hill,  46 
Wis.  618. 

Facts  mnst  be  Stated  Clearly  and  with 
Certainty. —  Hudson  v.  Wabash  Western 
R.  Co.,  loi  Mo.  13;  Northrup  v.  Mis- 
sissippi Valley  Ins.  Co.,  47  Mo.  444; 
Ells  V.  Pacific  R.  Co.,  51  Mo.  200; 
Gihon  V.  Levy,  2  Duer  (N.  Y.)  180; 
Lewis  V.  Kendall,  6  How.  Pr.  (N.  Y. 
Supreme  Ct.)  59;  Bateman  v.  Johnson, 
10  Wis.  I. 

An  answer  cannot  confess  and  avoid  and 
also  deny  the  cause  of  action  in  the  same 
paragraph.  Cronk  v.  Cole,  10  Ind.  485; 
Kimble  v.  Christie,  55  Ind.  140;  Woollen 
V.  Whitacre,  73  Ind.  201;  Richardson 
V.  Snider,  72  Ind.  425;  State  v.  Foulkes, 

94  Ind.  498;  Petty  v.  Church  of  Christ, 

95  Ind.  278;  Nysewander  v.  Lowman, 
124  Ind.  590;  Racer  v.  State,  131  Ind. 
401;  Coble  V.  McDaniel,  33  Mo.  363; 
Adams  v.  Trigg,  37  Mo.  143;  Darrett 
V.  Donnelly,  38  Mo.  492;  Smith  v.  Cul- 
ligan,  74  Mo.  387;  Zacharias  v.  French, 
I  Chit'.  PL  (i6th  Am.  ed.)  559,  10  Misc. 
Rep.  (N.  Y.  C.  PI.)  202,  24  Civ.  Proc. 
Rep.  (N.  Y.)  88. 

But  a  paragraph  in  an  answer  may 
confess  and  avoid  part  of  the  cause  of 
action  and  deny  other  facts  stated  in 
the  complaint.  Colglazier  v.  Colgla- 
zier,  117  Ind.  463;  State  v.  St.  Paul, 
etc.,  Turnpike  Co.,  92  Ind.  42. 

A  denial  may  be  pleaded  in  the  same 
answer  with  new  matter.  South  Da- 
kota V.  McChesney,  87  Hun  (N.  Y.)  294; 
Whedbee  v.  Reddick,  79  N.  Car.  518; 
Sumner  v.  Shipman,  65  N.  Car.  623; 
Reed  v.  Reed,  93  N.  Car.  465. 

A  Pleading  Cannot  Constitute  both  an 
Answer  and  a  Cross  Complaint.  —  Crow  v. 
Carver,  133  Ind.  262;  Conger  v.  Miller, 
104  Ind.  592;  Anderson  Bldg.,  etc., 
Assoc.  V.  Thompson,  88  Ind.  414; 
Washburn  v.  Roberts,  72  Ind.  213. 

Hypothetical  pleading  is  not  allowed 
generally,  i  Chit.  PI.  (i6th  Am.  ed.) 
552;  Margettsz/.  Bays,  4  Ad.  &  El. 489,  31 
E.  C.  L.  117;  Sayles  v.  Wooden,  6  How. 
Pr.  (N.  Y.)  84.  It  has  been  held,  how- 
38  Volume  5. 


60 1 1 .  CONFESSION  AND  A  VO I  DANCE.  60 1 1 . 

Form  No.  6  o  1 1 .' 

In  the  King's  Bench. 

Trin.  Term,  51  Geo.  III. 
Richard  Roe 
ats. 
John  Doe. 

(^First  plea,  general  issue. )^ 

And  for  a  further  plea  in  this  behalf  as  to  the  fishing  in  the  said 
fishery  in  the  sa.id_^rsl^  count  mentioned  and  the  said  fish  there  found 
and  being,  catching,  seizing,  taking  and  carrying  away  and  converting 
and  disposing  thereof  to  his  own  use,  the  said  Richard  Roe,  by  leave  of 
the  court  here  for  this  purpose  first  had  and  obtained  according  to  the 
form  of  the  statute  in  such  case  made  and  provided,  says  that  the 
said  John  Doe  ought  not  to  have  or  maintain  his  aforesaid  action 
thereof  against  him,  because,  he  says  that  the  place  in  which  the  said 
supposed  several  fishery  now  is  and  at  the  several  times,  when,  etc., 
was  a  certain  close,  or  place  or  piece  or  parcel  of  land  covered  with 
water  and  which  said  close,  or  piece  or  parcel  of  land,  now  is,  and  at 
the  said  several  times,  when,  etc.,  was  the  close,  soil  and  freehold  of 
the  said  Richard  Roe,  wherefore  the  said  Richard  Roe,  at  the  said 
several  times,  when,  etc.,  entered  into  the  said  close,  piece  or  parcel 
of  land,  and  fished  there  for  fish,  and  the  said  fish  in  the  said  first 
count  mentioned  there  found  and  being,  caught,  seized,  took  and 
carried  away  and  converted  and  disposed  thereof  to  his  own  use  as 
it  was  lawful  for  him  so  to  do  for  the  cause  aforesaid;  which  are  the 
said  several  supposed  trespasses  in  the  introductory  part  of  this  plea 
mentioned  whereof  the  said  John  Doe  hath  complained  against  him 
the  s^\f\  Richard  Roe. ^      And   this  the  s,dii(l  Richard  Roe '\s  ready  to 

ever,  that  in  certain  cases  the  defend-  being  inconsistent.  Smith,  Adm'r,  v. 
ant  may  answer  hypothetically.  He  Culligan,  74  Mo.  387. 
may  be  ignorant  of  the  truth  of  plain-  1.  At  common  law,  this  plea  is  suffi- 
tiff's  allegations,  or  he  may  know  them  cient  as  setting  up  matter  in  confession 
to  be  false.  Ketcham  v.  Zerega,  i  E.  D.  and  avoidance.  2  Chit.  PI.  609. 
Smith  (N.  Y.)  553;  Brown  v.  Ryckman,  2.  General  issue  in  trespass,  at  common 
12  How.  Pr.  (N.  Y.  C.  Pl.)3i7.  And  the  law,  was  as  follows:  "And  the  said 
plea  "that  the  said  several  supposed  ICichard J?oe,  hy Jeremiah  Mason,  h\s  a.t- 
causes  of  action "  has  been  held  to  be  torney,  comes  and  defends  the  force 
good.  Eavestaff  v.  Russell,  10  M.  &  and  injury,  when,  etc.,  and  says,  that 
W.  365.  he  is  not  guilty  of  said  supposed  tres- 
Inconsistency.  —  Where  an  action  was  passes  above  laid  to  his  charge  or  any 
brought  by  an  administrator  Je  bonis  part  thereof  in  manner  and  form  as  the 
non  for  the  recovery  of  money  de-  saixdjohn  Doe  hath  above  thereof  com- 
posited with  the  defendant  by  the  plained  against  him.  And  of  this  he, 
decedent,  the  defendant's  answer  ad-  the  said  Richard  Roe,  puts  himself  upon 
mitting  the  debt  of  decedent  and  also  the  country,"  etc.  See  also  the  title 
of  the  deposit  alleged  first  payment  of  Pleas. 

the  entire   amount    deposited    to   the  3.  Where  the  answer  is  to  one  coant, 

former    administrator     in    his    repre-  it  must  appear  what  count  it  is  intended 

sentative   capacity   and   a   subsequent  to  answer.     Kneedler  z/.  Sternbergh,  10 

deposit  by  him  of  such  amount  to  his  How.  Pr.  (N.  Y.  Supreme  Ct.)  67. 

individual  account;   secondly,  the  pay-  4.  This  is  a  second  plea  to  trespass  for 

ment,  upon  the  order  and  direction  of  fishing  in  a  several  fishery,  setting  up 

the    previous  administrator,  of  divers  that  the  Atwj  ««  ^m^  was  the  defendant's 

sums  amounting  to  the  whole  sum  de-  freehold.     2  Chit.  PI.  6og. 

posited  was  held  to  be  bad,  the  defenses  To  trespass  for  assault  and  battery  the 

39  Volume  5. 


6012.  CONFESSION  AND  A  VO I  DANCE.  6013. 

verify,^  wherefore  he  prays  judgment  if  the  said  John  Doe  ought  to 
have  or  maintain  his  aforesaid  action  thereof  against  him, etc. 

Form  No.  6012.* 

In  the  King's  Bench. 

The  9th  day  of  February,  t838. 
Richard  Roe  )  The  said  defendant,  by  Jeretniah  Mason,  his  attorney, 
ats.  I"      says  that  after  the  making  of  the  said  promise  (or 

John  Doe.  )  accruing  of  the  said  causes  of  actioii)m.  the  declaration 
mentioned  and  before  the  commencement  of  this  suit,  to  wit,  on  the 
tenth  day  of  y«/y  in  the  year  eighteen  hundred  and  thirty-seven,  \\\^ 
plaintiff  by  his  certain  writing  of  release  sealed  with  his  seal  and  now 
shown  to  the  said  court  here,  the  date  whereof  is  the  day  and  year 
last  aforesaid,  do  remise,  release  and  forever  quitclaim  unto  the  said 
defendant,  his  heirs,  executors  and  administrators,  the  said  promise 
(or  causes  of  action  and  each  and  every  of  them)  in  the  said  declaration 
mentioned  and  all  sum  and  sums  of  money  then  due  and  o\v'mg{asin 
the  release)  as  by  the  said  deed  or  writing  of  release,  reference  being 
thereunto  had  will  fully  appear,  and  this  the  defendant  is  ready  to 
verify. 

Jeremiah  Mason,  Attorney  for  Defendant. 

Form  No.  6013.* 

John  Doe     |    ^^  Washington  County  Court, 
Richard  Roe    \    '^^/^^'«'^^'' Term,  a.  d.  i8£>7. 

And  the  said  Richard  Roe,  hy  Jeremiah  Mason,  his  attorney,  comes 
and  defends  the  force  and  injury,  when,  etc.,  and  says  that  he  is  not 
guilty  of  the  trespasses  above  laid  to  his  charge,  in  the  manner  and 

following  plea  was  held  to  be  good:  "As  the  plaintiff  it  was   in    the  defense  of 

totheassaultingof  the  plaintiff  and  beat-  possession  of  the  said  close."     Weaver 

ing,  bruising  and  ill  treating  him  with  v.  Bush,  8  T.  R.  78.     Consult  also  title 

the  said  stick,  giving  and  striking  him  Assault,  vol.  2,  Forms  Nos.  2502,  2503. 

the  said  blows,  etc  ,  he  the  defendant  1.  Verification.  —  All  pleas  by  way  of 

at  the  time  when,  etc.,  was  lawfully  pos-  confession  and  avoidance  must  conclude 

sessed  of  and  in  a  certain  close  called,  with  a  verification,     i   Chit.   PI.   (i6th 

etc.,  at,  etc.,  and  being  so  possessed  the  Am.ed.)583;  Bennett'.  Filkins,  iSaund. 

plaintiff  at    the  said    time   when,   etc.,  22;  Union  Bank  e/.  Ridgely,  i  Har.  &  G. 

with  force  and  arms  and  with  a  strong  (Md.)  325;  Dewees  v.   Manhattan   Ins, 

hand  as  much  as  in  him  lay  did  attempt  Co.,  34  N.  J.  L.  253;  Patrick  v.  Brown, 

and    endeavor    forcibly    to    break  into  7  Phila.  (Pa.)   133;  Mayer  v.  Gimbel,  9 

and  enter  the  said  close  of  the  defend-  Phila.  (Pa.)  90;  Joslyn  v.  Tracy,  19  Vt. 

ant,  and  would  have  broken  into  and  569;  Virginia  F.  &  M.  Ins.  Co.  v.  Saun- 

entered    the    said    close    without    the  ders,  84  Va.  210. 

defendant's  license  and  against  his  will,  2.  Under  the  Hilary  rales,  this  plea 
whereupon  the  defendant,  being  then  in  of  release  is  good.  Petersdorf's  Prec. 
his  said  close  and  seeing  the  said  319.  The  form  applies  only  to  a  gen- 
attempt  and  endeavor  of  the  plaintiff,  eral  release.  See  also  the  title  Release 
did  then  and  there  resist  and  oppose  and  Discharge. 

such  entrance  into  the  said  close  and  3.  In  common-law  states  this  plea   in 

upon  that  occasion  did  then  and  there  trespass  is  good  as  an   illustration  of 

defend  his  possession  as  it  was  lawful  a   plea   of  confession   and    avoidance, 

for  him  to  do,  and  that  if  any  damage  Aiken's  Prac.  F.  (Vt.)  310. 
or  injury  then  and  there  happened  to 

40  Volume  5. 


6014.  CONFESSION  AND  A  VOf DANCE.  6014. 

form  as  the  saxA  John  Doe  hath  above  complained  against  him;  and 
of  this  he,  the  sa.\(\  Richard  Roe,  puts  himself  upon  the  country,  etc. 
And  as  to  the  breaking  and  entering  the  said  dwelling-house  in  the 
said  declaration  mentioned  and  in  which,  etc.,  and  staying  and  con- 
tinuing therein  for  the  said  space  of  time  in  the  said  declaration  also 
mentioned  above  to  have  been  done  by  the  said  Richard  Roe,  he  the 
said  Richard  Roe,  by  leave  of  the  court  here  for  this  purpose  first  had 
and  obtained  according  to  the  form  of  the  statute  in  such  case  made 
and  provided,  says  that  the  said  John  Doe  ought  not  to  have  his 
aforesaid  action  thereof  maintained  against  him,  because  he  says 
that  the  said  dwelling-house  in  the  said  declaration  mentioned  and  in 
which,  etc.,  long  before  at  the  same  time,  etc.,  was  and  still  is  the 
dwelling-house  and  freehold  of  him  the  sa^\<\  Richard  Roe,  wherefore 
he  the  said  Richard  Roe,  at  the  said  time  when,  etc.,  broke  and  entered 
the  said  dwelling-house  as  being  the  dwelling-house  and  freehold  of 
him  the  said  Richard  Roe  d^nd.  stayed  and  continued  in  the  said  dwelling- 
house  for  the  said  space  of  time  in  the  said  declaration  mentioned  as 
it  was  lawful  for  him  to  do  for  the  cause  aforesaid,  which  are  the 
supposed  trespasses  in  the  introductory  part  of  this  plea  mentioned, 
whereof  the  said  John  Doe  hath  above  complained  of  the  said  Richard 
Roe,  and  this  he  is  ready  to  verify,  wherefore  he  prays  judgment  if 
the  said  John  Doe  ought  to  have  the  aforesaid  action  maintained 
against  him. 

Jeremiah  Mason,  Attorney  for  Defendant. 

Form  No.  6014.- 

■^  '.  P  '      /  In  the  Circuit  Court  Barton  County, 

i?/.//^r^I,rdefendant.  i>'^"^''-^  'T^™'  ^^^^' 

Defendant,  for  answer  to  plaintiff's  petition,  admits  the  allegations 
therein  contained  as  to  the  receipt  by  defendant  of  the  said  wheat, 
but  says  that  at  the  time  of  the  alleged  conversion  of  the  same  de- 
fendant was  engaged  in  the  business  of  conducting  a  warehouse  and 
selling  and  shipping  grain,  and  that  in  the  course  of  his  business  he 
deposited  all  grain  received  from  depositors  in  a  common  bin  with 
wheat  bought  by  defendant,  and  from  this  bin  wheat  was  taken  and 
sold  by  him;  that  the  plaintiff  knew  of  this  custom;  that  the  de- 
fendant had  in  the  common  bin  at  all  times  before  the  eighth  day  of 
October,  iS97,  sufficient  wheat  of  the  kind  deposited  by  the  plaintiff 
to  replace  that  received,  and  on  that  day  the  warehouse  and  all  of 
its  contents  was  destroyed  by  fire  and  without  any  fault  or  negligence 
on  the  part  of  defendant.^ 

Jeremiah  Mason,  Attorney  for  Defendant. 

(  Verification. )' 

1.  TTnder  the  codes  and  practice  acts  confession  and  avoidance  in  Botten- 
of    the   various  states,  this  answer  is     berg  v.  Nixon,  97  Ind.  106. 

good  as  one  of  confession  and  avoid-  3.  Verification.  —  For  the  necessity  for 

ance.     2  Mo.  Rev.  Stat.  (18S9),  p.  2238.  and  form  of  a  verification,  generally, 

2.  The   fEMts  set  oat  in  this  answer  consult  the  title  Verifications. 
were  held  to  constitute  a  good  plea  in 

41  Volume  5. 


60 1 5.  CONFESSION  AND  A  VO I  DANCE.  60 1  i-. 

II.  BY  REPLICATION  OR  REPLY.^ 

Form  No.  60x5.* 

In  the  King's  Bench. 

Trin.  Term,  51  Geo.  III. 

John  Doe 

against 
Richard  Roe. 

And  the  said  John  Doe,  as  to  the  said  plea  of  the  said  Richard  Roe 
by  him  secoTidly  above  pleaded  as  to  the  several  trespasses  in  the  in- 
troductory part  of  that  plea  mentioned  and  therein  attempted  to  be 
justified,  saith  that  he  the  said  John  Doe,  by  reason  of  anything  by 
the  said  Richard  Roe  in  that  plea  alleged,  ought  not  to  be  barred 
from  and  having  and  maintaining  his  aforesaid  action  thereof  against 
him  the  said  Richard  Roe,  because  he  saith  that  whilst  the  said 
dwelling-house  was  the  dwelling-house  and  freehold  of  the  said  Rich' 
ard  Roe,  and  before  the  said  time  when  'the  several  trespasses  in 
the  introductory  part  of  the  said  plea  mentioned  were  committed, 
to  wit,  on  the  tenth  day  of  June,  A.  D.  \%2J^,  at  London  aforesaid,  he 
the  said  Richard  Roe  demised  the  said  dwelling-house  with  the  appur- 
tenances to  the  said  John  Doe  to  have  and  to  hold  the  same  to  him  the 
said  John  Doe  for  and  during  and  unto  the  full  end  and  term  of  otie year 
from  thence  next  ensuing  and  fully  to  be  complete  and  ended  and  so 
from  year  to  year  and  for  so  long  a  time  as  they  the  said  John  Doe  and 
Richard  Roe  should  respectively  please.  By  virtue  of  which  said 
demise,  he  the  said  John  Doe  afterwards  and  before  the  said  time 
when  the  above  trespasses  were  committed,  entered  into  the  said 
dwelling-house  and  became  and  was  possessed  thereof  and  continued 
so  thereof  possessed  from  thence  until  the  said  Richard  Roe  after- 
wards and  during  the  continuance  of  said  demise,  to  wit,  at  the  said 
time  when  the  said  Richard  Roe  of  his  own  wrong  broke  and  entered 
the  said  dwelling-house  and  committed  the  said  several  trespasses  in 
the  introductory  part  of  the  said  plea  mentioned  in  the  man- 
ner and  form  as  the  said  John  Doe  hath  thereof  complained  against 
him  the  said  Richard  Roe,  and  this  the  said  John  Doe  is  ready  to  verify. 
Wherefore  the  said  John  Doe  prays  judgment  and  his  damages  by 
him  sustained  by  reason  of  the  committing  of  said  trespasses  to  be 
adjudged  to  him. 


1.  For  the  formal  parts  of  a  replica-  ing  the  title  Rejoinders,  etc.,  for  the 

tion,  generally,  see  the  title  Replica-  formal   parts,   and  alleging  such   new 

TIONS;  for  the  formal  parts  of  a  reply,  matter  in  like  manner  as  the  same  is 

generally,  see  the  title  Replies.  set  out  in  the   pleas  and    replications 

By  rejoinder  or  other  subsequent  plead-  given  in  the  text,  Forms  Nos.  601 1  to 

ing  new  matter  may  be  pleaded  in  con-  6015. 

fession  and  avoidance.     The  form    of        2.  At  common  law,  this  replication  is 

such    rejoinder    or    other   subsequent  good  as  setting  up  facts  in  confession 

pleading  may  be  drawn   by  consult-  and  avoidance.     2  Chit.  PI.  696. 

42  Volume  5. 


60 1 6.  CONFESSION  AND  A  VO I  DANCE.  60 1 7. 

Form  No.  6oz  6.' 
In  the  King's  Bench. 

The  9th  day  of  February,  iS38. 
John  Doe  )  The  plaintiff  as  to  the  plea  of  the  defendant  by  him 
against  >•  secondly  above  pleaded  says,  that  whilst  the  said 
Richard  Roe.  )  close  was  the  close  and  freehold  of  the  defendant, 
and  before  the  time,  when,  etc.,  to  wit,  on,  etc.,  the  defendant  demised 
the  said  close,  with  the  appurtenances,  to  the  plaintiff,  to  have  and  to 
hold  the  same  to  him  the  plaintiff  for  and  during  and  unto  the  full 
end  and  term  of  seven  years  from  thence  next  ensuing^and  fully  to  be 
complete  and  ended.  By  virtue  of  which  said  demise,  the  plaintiff 
afterwards,  and  before  the  said  time,  when,  etc.,  entered  into  the 
close  and  became  and  was  possessed  thereof  and  continued  so 
thereof  possessed  from  thence  until  the  defendant  afterwards  and 
during  the  continuance  of  such  demise,  to  wit,  at  the  time,  when,  etc., 
of  his  own  wrong  broke  and  entered  the  close  in  which,  etc.,  and  com- 
mitted the  several  trespasses  in  the  plea  mentioned,  in  manner 
and  form  as  the  plaintiff  has  above  thereof  complained  against  the 
defendant,  and  this  the  plaintiff  is    ready  to  verify. 

Oliver  Ellsworth,  attorney  for  John  Doe,  plaintiff. 

Form  No.  6017.' 

John  Doe    )  j^  Washington  County  Court, 
Ri^harTRoe  \  ^^P^^^^^^  Term,  a.  d.  \2,98. 

(^Similiter  — joining  issue  to  first  pica.  )3 

And  as  to  the  plea  by  the  said  Richard  Roe  secondly  above  pleaded 
as  to  the  several  trespasses  in  the  introductory  part  of  that  plea 
mentioned  thereby  attempted  to  be  justified,  the  said  John  Doe  says 
that  by  reason  of  anything  by  the  s^Xi^  Richard  Roe  in  that  plea  above 
alleged,  ought  not  to  be  barred  from  having  his  aforesaid  action 
thereof  against  him,  because  he  says  that  just  before  the  said  time 
when,  etc.,  the  said  cattle  in  the  said  declaration  mentioned  were 
wrongfully  turned  and  driven  by  the  said  Richard  Roe  from  and  out 
of  the  said  highway  into  and  upon  the  said  close  or  piece  and  parcel 
of  land  in  which,  etc.,  and  upon  that  occasion  by  means  and  con- 
sequence thereof  the  said  cattle  were  at  the  said  first  time,  when,  etc., 
in  the  said  close  in  which,  etc.,  depasturing  on  the  grass  there  then 
growing  and  doing  damage  there,  in  manner  and  form  as  the  said 
John  Doe  hath  above  thereof  complained  against  him  the  said  Rich- 
ard Roe^  and  this  the  sa.i(l  John  Doe  is  ready  to  verify;  wherefore  the 
said  John  Doe  prays  judgment  and  his  damages  by  him  sustained  by 
reason  of  the  committing  of  the  said  trespasses  to  be  adjudged  to 
him,  etc. 

Oliver  Ellsworth,  Plaintiff's  Attorney. 

1.  Under  Hilary  rules,  this  replication  3.  Similiter  joining  isane,  in  common- 
is  good  as  setting  up  facts  in  confession  law  states,  as  in  Vermont,  may  be  as 
and  avoidance.     Petersdorf's  Prec.  267.  follows:    "  Andthe  saidyt?A«  Z)^?^,  as  to 

2.  In  common-law  states  this  form  is  an  the  first  plea  of  the  said  Richard  Roe 
illustration  of  a  replication  setting  up  above  pleaded  and  whereof  he  hath 
matter  in  confession  and  avoidance,  put  himself  upon  the  country,  doth  so 
Aiken's  Prac.  F.  (Vt.)  311.  likewise."     Aiken's  Prac.   F.  (Vt.)  299. 

48  Volume  5. 


60 1 8.  CONFESSIOiV  AND  A  VO I  DANCE,  60 1 9. 

Form  No.  6  o  i  8  .' 

Sl/^Coun°^  ^/^^««^^,  I  In  the  Circuit  Court,  January  Term,  iW8. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

The  plaintiff,  for  reply  to  defendant's  answer,  saith  that  defendant 
knew  of  plaintiff's  dangerous  position  at  the  time  of  said  collision 
and  was  guilty  of  wanton  recklessness  or  gross  negligence  in  running 
the  said  locomotive  engine  across,  over,  upon  or  against  plaintiff  as 
aforesaid. 

Oliver  Ellsworth,  Attorney  for  Plaintiff. 

III.  BY   NOTICE   OF   SPECIAL  DEFENSE. 

Form  No.  6019.' 

In  the  King's  Bench. 

i      John  Doe,  plaintiff, 
Between  -j  and 

(  Richard  Roe,  defendant. 
Mr.  Oliver  Ellsworth,  attorney  for  John  Doe,  take  notice  that  the 
above  named  defendant  on  trial  of  this  cause  will  give  in  evidence 
and  insist  that  the  above  named  plaintiff,  before  and  at  the  time  of 
the  commencement  of  this  suit,  was  and  still  is  indebted  to  the  said 
defendant  in  the  sum  of  one  hundred  pounds  of  lawful  money  of  Great 
Britain  upon  and  by  virtue  of  a  certain  bill  of  exchange  bearing  date 
the  twenty-first  day  ol  January,  a.  d.  i2>2Jf,  heretofore,  to  wit,  on  the 
day  and  year  last  aforesaid,  at  London,  made  and  drawn  by  the  said 
Richard  Roe  upon,  and  then  and  there  accepted  by  the  said  John  Doe, 
whereby  he  the  said  Richard  Roe  requested  the  said  John  Doe  two 
months  after  date  thereof  to  pay  him  the  said  Richard  Roe  or  his  order 
the  sum  of  one  hundred  pounds  for  value  received,  and  that  the  said 
defendant  will  set  off  and  allow  to  the  said  plaintiff  on  the  said  trial 
so  much  of  the  said  one  hundred  pounds  so  due  and  owing  from  the 
said  plaintiff  to  the  said  defendant  against  any  demand  of  the  said 
plaintiff  to  be  proved  on  the  said  trial  according  to  the  form  of  the 
statute  in  such  case  made  and  provided.  Dated  this  twelfth  day  of 
November,  a.  d.  i%2Jf.. 

Yours  truly, 

Jererniah  Mason,  Defendant's  Attorney. 

1.  Under  the  codes  and  practice  acts,  not  on   defendant  to  show   plaintiff's 

this  is  an  illustration  of  a  reply  which  contributory  negligence,   but  that   the 

is   good   as   setting  up  matter  in  con-  plaintiff,    having    confessed    the    facts 

fession  and  avoidance.     This  reply  is  averred  in  the  plea,  must  make  good 

based  upon  that  in  Lee  v.  De  Bardele-  the  allegations  in  his  replication, 

ben  Coal,  etc.,  Iron  Co.,  102  Ala.  628,  2.  This  notice  of  set-off  subscribed  at 

in  which  case  the  court  held  that  the  the  foot  of  the  general  issue  is  good  at 

replication  confessed  the  facts  averred  common  law.     3  Chit.  PI.  490  et  seq. 

in  the  plea  of  contributory  negligence  By  rules  Hilary  Term,  4  Wm.  IV,  set- 

and  that  the  averment  that  defendant  off  cannot  be  made  available  by  way  of 

knew    of    plaintiff's    dangerous    posi-  such    notice,    but    must    be    specially 

tion,    etc.,   was   in  avoidance   of   their  pleaded, 
effect  and  that  the  burden  of  proof  was 

44  Volume  5. 


6020. 


CONFESSION  AND  AVOIDANCE. 


6020. 


Form  No.  6020.' 

(^First  plead  the  general  issue -^  then  subjoin  to  the  plea  the  following 
notice:)  And  the  defendant  gives  notice,  according  to  the  form  of 
the  statute  in  such  case  made  and  provided,  that  on  the  trial  of  this 
cause  he  will  give  in  evidence  and  rely  upon  in  defense  or  justifica- 
tion the  following  special  matters,  to  wit,  that:  (^Here  set  out  con- 
cisely^ succinctly  and  intelligibly  all  the  facts  relied  upon  in  such  defense  or 
justification  in  a  manner  similar  to  their  averments  in  a  pleading.)'^ 

By  Jeremiah  Mason,  Defendant's  Attorney. 


1.  Thifl  notice  is  substantially  the 
form  set  out  in  Aiken's   Prac.  F.  (Vt.) 

309- 

In  Conunon-law  states  the  defendant 
may  plead  the  general  issue,  and  give 
notice  in  writing  under  the  same  of  the 
special  matters  intended  to  be  relied 
on  for  a  defense  on  the  trial. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1S96),  c.  no,  §  29. 

Similiar  or  analogous  statutes  exist 
in  the  other  common-law  states,  such 
as  — 

Michigan.  —  How.  Anno.  Stat.  (1S82), 

§  7363- 

JVew  Hampshire.  — Pub.  Stat.  (1891), 
c.  223,  §  3. 

New  Jersey. — Gen.    Stat.   (1895),    p. 

2553.  §  "7- 

Vermont. —  Stat.  (1894),  §§  1149,  1150. 

The  Notice  stands  in  place  of  a  special 
plea  and  fills  the  same  office.  Sherman 
V.  Dutch,  16  111.  283. 

Must  apprise  opposite  party  of  facts  re- 
lied upon  as  a  defense  in  such  a  man- 
ner that  he  may  be  prepared  to  meet  it 
and  to  avoid  surprise  on  the  trial.  Lig- 
gett Spring,  etc.,  Co.  V.  Michigan  Buggy 
Co.,  106  Mich.  451;  Briesenmeister  v. 
Supreme  Lodge,  etc.,  81  Mich.  531; 
Browne  v.  Moore,  32  Mich.  254.  But 
it  is  not  required  that  the  facts  be 
stated  with  that  certainty  and  formality 
required  of  the  special  plea.  Randall 
V.  Preston,  52  Vt.  198.  See  Chit.  PI. 
(i6th  Am.  ed.)  491. 

2.  For  form  of  general  issne  in  common- 
law  states  consult  the  title  Plkas. 

3.  For  such  a  statement  of  facts  set  up 
by  way  of  confession  and  avoidance  in 
a  plea  see  supra.  Form  No.  toiy. 

Precedent.  —  In  Randall  v.  Preston, 
52  Vt.  198,  the  following  notice  was 
held  sufficient:  "On  the  tjth  day  of 
January,  a.  D.  187J,  Oscar  F.  Merrill, 
of  Cadot,  took  out  a  justice  writ  against 
Ebenezer  Thompson,  returnable  on  the 
30th  day  o{  January,  A.  D.  187J,  before 


M.  P.  Wallace,  a  justice  of  the  peace, 
at  the  office  of  J.  P.  Lamson,  in  Cabot, 
in  an  action  on  a  note,  which  writ  was 
put  into  the  hands  of  W.  H.  Preston, 
this  defendant,  who  was  a  deputy 
sheriff,  which  writ  was  served  on  the 
i£th  day  oi  January,  iS'^j,  on  Ebenezer 
Thompson  by  attaching  a  white  horse, 
which  horse  is  the  one  in  contro- 
versy in  this  suit.  Said  writ  was  re- 
turned to  the  said  justice  and  on  the 
returnable  day  of  said  writ  it  was  by 
said  justice  continued  for  notice  to  the 
defendant  under  the  statute  until  the 
6th  day  of  February,  same  place  and 
time  of  day.  And  on  the  6th  day  of 
February,  187 J,  notice  having  been 
proved,  a  judgment  by  said  justice  was 
rendered  against  said  Ebenezer  Thomp- 
son for  the  sum  of  $/ojr.^o  damages  and 
$7 .JO  cost  of  suit.  And  on  the  6th  day 
of  February,  iS/j,  execution  by  said 
justice  was  issued  on  said  judgment  for 
the  same  sum  and  put  into  the  hands 
of  this  defendant  as  a  deputy  sheriff, 
and  on  the  ijth  day  of  February,  a.  d. 
1S7J,  said  execution  was  levied  on  said 
horse  and  the  same  was  advertised  on 
the  ijth  of  February  to  be  sold  at 
sheriff's  sale  by  defendant,  as  sheriff, 
on  the  jd  day  of  March,  187?,  at  one 
o'clock/,  m.,  at  the  grist  mill  in  North 
Danville.  Said  notice  was  posted  on 
said  grist  mill  for  the  sale  of  said  horse, 
and  on  the  3d  day  of  March  said  sale 
was  adjourned  to  thejM  day  of  March, 
at  the  same  time  and  place,  and  on  the 
gth  day  of  March  said  horse  was,  at 
said  public  sale,  sold  by  this  defend- 
ant, as  a  deputy  sheriff,  to  A.  H. 
Smith,  of  Danville,  he  being  the  high- 
est bidder  for  the  same,  which  execu- 
tion was  duly  returned  to  said  justice; 
which  horse  so  attached  and  sold  is 
the  one  in  controversy,  and  was  the 
property  of  said  Ebenezer  duly  and 
legally  attached  and  sold  by  the  defend- 
ant as  a  deputy  sheriff." 


45 


Volume  5. 


CONFESSION  OF  JUDGMENT. 

By  Thomas  E.  O'Brien. 

I.  Offer  to  Confess  judgment,  47. 

1.  Notice  of  Offer ^  47. 
«.    The  Offer,  47. 

II.  CONFESSION,  48. 

1.  In  General,  49. 

a.  Before  Action  Commenced,  49. 

(i)  In  Courts  of  Record,  49. 
{a)  Generally,  49. 
(J))  Illustrations,  52. 

aa.    Upon   Account,  52. 
bb.    Upon  Note,  53. 
cc.   Upon  Sealed  Instrument,  58. 
dd.  For  Goods  Sold,  59. 
ee.   For  Money  Loaned,  61. 
ff.  For  Purchase  Money  of  Realty,  63. 
gg.  For  Services  Rendered,  65. 
hh.  To  Secure  against   Contingent    Lia- 
bility, 67. 
//.  For  Balance  Due  on  Judgments,  69. 
(2)  In  Justice's  Court,  70. 

b.  After  Action  Commenced — Cognovit,  76. 

(i)  Generally,  76. 

(2)   With  a  Relicta  Verificatione,  78. 

2.  By  Attorney,  79. 

3.  By  Corporation,  86. 

4.  By  Executor,  88. 

5.  By  Guardian  of  Lunatic,  89. 

III.  RECOGNIZANCE  FOR  DEBT,  90. 

IV.  JUDGMENT,  91. 

1.  Upon  Confession  of  Defendant,  91. 

a.  In  Courts  of  Record,  91. 

(i)  In  General,  91. 

(2)  By  Cognovit  at  Common  Law,  96. 

b.  Before  Justice  of  the  Peace,  97. 

2.  Upon  Confession  of  Attorney,  102, 

V.  WARRANT  OF  ATTORNEY,  107. 

1.  Distinct  Instrument,  107. 

2.  Embraced  in  Another  Instrument,  iii. 

46  Volume  5. 


6021.  CONFESSION  OF  JUDGMENT.  6022. 

CROSS-REFERENCES. 

For  other  Forms  of  Confessions  of  Judgment,  see  the  title  FRIENDL  Y 
SUIT;  and  see  also  the  GENERAL  INDEX  to  this  work. 

For  Forms  of  Judgments ,  generally,  see  the  title  JUDGMENTS. 

For  matters  of  Procedure  relating  to  Confession  of  Judgment,  see  the 
title  COGNOVIT,  4  EncyclopjEdia  of  Pleading  and  Prac- 
tice, p.  560,  and  JUDGMENTS,  11  Encyclopaedia  of  Plead- 
ing and  Practice. 

I.  Offer  to  Confess  judgment. 
1.  Notice  of  Oflfer. 

Form  No.  6021.' 

To  John  Doe:  You  will  take  notice  that  on  the  twenty-fourth  day 
of  November,  a.  d.  j897,  at  ten  o'clock  in  the  forenoon,  or  as  soon 
thereafter  as  the  matter  may  be  taken  up  and  heard,  in  the  Sedgwick 
District  Court  in  the  city  of  Wichita,  county  of  Sedgwick,  state  of 
Kansas,  I  will  offer  to  confess  judgment  in  favor  of  you  for  the  sum 
of  three  hundred  dollars  on  a  claim  you  have  against  me  for  medical 
services  rendered.  Yours,  etc., 

Richard  Roe. 

Dated  this  third  day  of  November,  a.  d.  i897. 

(J^roof  of  service.))^ 

2.  The  Offer. 

Form  No.  6022.' 

State  of  Kansas,    )  In  the  District  Court  in  and  for  the  county 

Sedgwick  County.  )      '  and  state  aforesaid. 

John  Doe     '\ 

against       >•  Offer  to  Confess  Judgment. 
Richard  Roe.  ) 

The  above  named  Richard  Roe,  this  twenty-fourth  day  of  November, 
i897,  pursuant  to  a  notice  heretofore,  to  wit,  on  the  ffth  day  of 

1.  Kansas.  —  2  Gen.   Stat.   (1897),  c.  not  if  it  had  so  specified  it  would  have 

95.  §  447-     Like    forms  may  be  drawn  been  within  the  statute, 

for  use  in  jurisdictions  in  which  similar  A  notice  which  does  not  specify  when 

statutes  exist.     Consult  list  of  statutes  the  answer  containing  the  offer  will  be 

cited  infra,  note  2,  p.  48.  filed  was  held  to  be  insufficient.     Max- 

Kentucky.  —  In  Maxwell   v.  Dudley,  well  f.  Dudley,  13  Bush  (Ky.)  404. 

13  Bush  (Ky.)  404,  it  appears  that  on  2.  Proof  of  Service.  —  For  forms  of  ac- 

the  day  on  which  the  answer  was  filed,  knowledgments  of  service  or  affidavits 

but    whether    before    or   after    is   not  of  service  consult  the  title  Service  of 

apparent,  defendant  appellant  caused  Writs  and  Papers. 

the  following  notice  to  be  served  upon  8.  Kansas.  —  2  Gen.   Stat.   (1897).   c. 

plaintiff    appellee:     "  The    plaintiff   is  95,  §  44.7.     Like  forms  may  be  drawn 

notified  that  the  defendant   will  allow  under  similar  statutes  in  other  juris- 

judgment  to  be  taken  against  him  for  dictions.     Consult  list  of  statutes  cited 

the  sum  of  %§^.oo.     E.  H.  Maxwell,  by  infra,  note  2,  p.  48. 

Stevenson  b'  0' Hara,  Att'ys.      September  Under  Iowa  Code  (1897),  §  3818,  an 

nth,  1876."     This  notice  was  defective  offer  to  confess  judgment  maybe  made 

in  not  specifying  when  the  offer  would  orally.       Barlow    v.    Buckingham,    68 

be  made,  and  it  is  doubtful  whether  or  Iowa  169. 

47  Volume  5. 


6022. 


CONFESSION  OF  JUDGMENT. 


6022. 


November^  iS97,  duly  served  upon  the  above  named  John  Doe,  hereby 
in  open  court  offers  to  confess  judgment  in  favor  of  the  said  John 
Doe  for  the  sum  oi  three  hundred  and  fifteen  dollars,  together  with 
costs  that  have  accrued  and  may  accrue/  upon  a  claim  oi  four  hundred 
dollars,  which  the  said  John  Doe  has  against  the  said  defendant  for 
goods,  wares  and  merchandise  sold  and  delivered  by  the  said  John  Doe  to 
the  said  Richard  Roe. 

Richard  Roe. 

II.  CONFESSION.2 


Precedents. —  In  Chicago,  etc.,  R.  Co. 
V.  Townsdin,  45  Kan.  771,  the  defend- 
ant, in  accordance  with  2  Kan.  Gen. 
Stat.  (1897),  I  447,  offered  in  open  court 
to  confess  judgment,  making  the  offer 
in  writing,  which,  omitting  the  title, 
was  as  follows:  "  Now  comes  the  above 
named  appellee  and  offers  in  writing  to 
allow  judgment  to  be  taken  against  it 
for  %2o6.2£,  with  accrued  costs.  F.  IV. 
6"/z<r^vj,  Attorney  for  Appellee." 

In  Wichita,  etc.,  R.  Co.  v.  Beebe,  38 
Kan.  427,  the  offer  to  confess  judgment, 
omitting  the  formal  parts,  was  as  fol- 
lows: "  Now  comes  the  defendant  rail- 
road company,  by  Houston  ^'Bentley,  its 
attorneys,  and  offers  in  court  to  confess 
judgment  in  the  above  cause  for  the 
sum  of  two  hundred  atid  thirteen  and  one 
one-hundredth  dollars,  and  for  the  costs 
of  this  action  to  date.  Houston  dr'  Bent- 
ley.  Defendant's  Attorneys." 

Necessity  for  Notice.  —  Under  2  Kan. 
Gen.  Stat.  (1897),  c.  95,  both  i;  445  and 
§  447  require  notice  of  some  kind  to  be 
given  to  plaintiff,  in  the  one  case,  of 
the  offer  to  allow  judgment;  in  the  other 
case,  of  the  offer  to  confess  judgment. 
Under  the  first  section,  a  written  offer 
must  be  served  upon  the  plaintiff  to 
render  him  liable  for  costs;  under  the 
latter  section,  plaintiff  must  either  be 
present  in  court  when  the  offer  is  made 
or  he  must  have  notice  thereof  to  render 
him  liable  for  costs.  If  he  is  present  in 
court  and  the  attention  of  the  court  is 
called  to  the  offer  at  the  time  it  is 
made,  that  will  be  sufficient,  but  it  will 
not  be  sufficient,  even  if  plaintiff  is 
present  in  court,  to  file  a  written  offer 
with  the  clerk  of  the  court  without 
calling  the  attention  of  the  court,  or  the 
plaintiff,  or  his  attorney.  Van  Bentham 
V.  Osage  County,  49  Kan.  30. 

Must  be  made  in  court,  either  when  the 
plaintiff  is  present  or  at  a  time  when 
he  has  been  notified  that  it  will  be 
made.  So  held  xxnAer  Kentuc ky  statute 
in  Maxwell  z/.  Dudley,  13  Bush(Ky.)403. 


1.  Must    Embrace    Costs.  —  Harter  v 

Comstock,  II  Ind.  527.  An  offer  in 
writing  to  confess  judgment  for  a  cer- 
tain sum  with  costs  accrued  to  the 
present  time,  made  before  trial  in  a 
pending  action,  is  sufficient.  Rose  v. 
Grinstead,  53  Ind.  203;  Holland  v. 
Pugh,  16  Ind.  23;  Petrosky  v.  Flana- 
gan, 38  Minn.  27. 

In  Iowa,  however,  this  does  not  seem 
to  be  necessary.  An  offer  by  defendant 
"to  confess  judgment  against  himself 
in  favor  of  plaintiff  for  the  sum  of  two 
hundred  and  sixteen  dollars  "  was  held 
to  be  sufficient,  for  the  reason  that  an 
offer  of  this  character  in  a  pending  case 
carries  with  it  as  incident,  if  accepted, 
a  liability  for  all  costs  accrued  in  the 
case  up  to  the  time  the  offer  is  made. 
Manning  v.  Irish,  47  Iowa  650. 

Offer  to  Confess  in  Part.  —  After  action 
brought,  defendant  may  offer  in  court 
to  confess  judgment  for  part  of  the 
amount  claimed  or  part  of  the  causes 
involved. 

Kansas.  —  Gen.  Stat.  (i88g),  §  4627. 
For  similar  provisions  consult  the  list  of 
statutes  cited  infra,  note  2,  p.  48. 

Offer  to  confess  part  of  payments  de- 
manded may  be  made,  in-  Kentucky, 
when  the  only  matter  in  dispute  is  the 
amount  of  recovery  to  which  the  plain- 
tiff is  entitled.  Maxwells.  Dudley,  13 
Bush  (Ky.)403. 

2.  Statutory  provisions  relating  to  con- 
fessions of  judgments  exist  in  the  fol- 
lowing jurisdictions: 

Arizona.  —  Rev.  Stat.  (1887),  §§  802, 
803,  1444,  1445. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§g  4379.  5872,  5873,  5906. 

California.  — Code  Civ.  Proc.  (1897), 
§  112,  subs.  6,  §§  889,  1132-1135. 

Connecticut.  —  Gen.  Stat.  (1888),  §§ 
663,  1058. 

Delaware.  —  Laws  (1893),  p.  795,  c. 
106,  §  32,  p.  811,  c.  no,  §  14. 

District  of  Columbia.  —  Comp.    Stat. 
(1894).  c.  34,  ^  13. 
48  Volume  5. 


6023. 


CONFESSION  OF  JUDGMENT. 


6023. 


1.  In  General. 

a.  Before  Action  Commenced. 

(1)  In  Courts  of  Record. 

(a)  Generally. 

Form  No.  6023.' 

(^Venue,  title  of  court  and  cause. ^^ 

I,  the  above  named  Richard  JRoe^  do  hereby  confess  judgment  in 


Florida.  —  Rev,  Stat.  (1892),  §^5  1178, 
1609,  subs.  6,  ^§  1623,  1634. 

Georgia.—  2  Code  (1895),  §§  5359,  5360. 

/^a,4tf.  —  Rev.  Stat.  (1887),  §  3851, 
subs.  6,  §§  4725,  5061-5063. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  30S3,  par.  66. 

Indiana.  —  Horner's  Stat.  (1896),  §§ 
515.  587.  588,  1490. 

Iowa.  —  Anno.  Code  (1897).  g§  3813, 
3815.  3817,3818,4536. 

Kansas.  —  2  Gen.  Stat.  (1897),  c.  95, 
^§  399-405,  447;  Gen.  Stat.  (1889),  g§ 
449S-4501,  4504,  4851. 

Kentucky. —  Bullitt's  Civ.  Code  1895), 
§§  382,  640. 

Maryland.  — 'Pvih.  Gen.  Laws  (18S8), 
art.  17,  §  50,  art.  52,  §  33. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
167,  ^  65,  c.  193,  §§  1-9. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§§  63 16,  7662. 

Minnesota.  —  Stat.  (1894),  §§  1383, 
4959,  subs.  6,  §§  5019-5021,  6077-6082. 

Mississippi.  —  Anno.  Code  (1892),  §§ 

747.  753- 

Missouri.  —  Rev.  Stat.  (1889),  ^  2230- 
2232,  6273,  6274;  Burns'  Anno.  Pr.  Code 
(1896).  §605. 

Montana.  —  Code  Civ.  Proc.  (1895), 
§§  1620,  2041-2043. 

Nebraska.  —  Comp.  Stat.  (1897),  §§ 
6013,  6015,  6016. 

Nevada.  — Q,e.Ti.  Stat.  (1885),  g§  3382, 
3383.  3531,  subs.  7.  §  3534. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
C.  223,  §  2,  c.  247,  §55  16.  17. 

New  Jersey.  —  Gen.  Stat.  (1895),  pp. 
172-174,  §  I  et  seq.,  p.  1873,  §  43,  P-  2534, 
§§  I-I2. 

New  York.  —  Code  Civ.  Proc.  (1891), 
§§  1274,  3010-3012  (Birds.  Rev.  Stat. 
(1896),  pp.  1738-1740,  §§  72-77,  p.  1803, 
§§  154-156). 

North  Carolina.  —  Code  (1883),  §§  570, 
571. 

North  Dakota.  — Rev.  Codes  (1895), 
§^  6130-6132,  6701. 

5E.  ofF.  P.  — 4. 


Ohio.  —  Bates'  Anno.  Stat.  (1897),  §§ 
588,  5321,  5325. 

Oklahoma.  —  Stat.  (1893),  §§  4293- 
4298. 

Oregon. — Hill's  Anno.  Laws  (1892), 
§1  250-256. 

Pennsylvania.  —  Bright.  Pur.  Dig. 
(1894),  p.  1093,  §  I,  p.  1740,  §  72, 
subs.  3. 

South  Carolina.  —  Code  Civ.  Proc. 
(1893),  §  71,  subs.  8,  §§  383-385. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §§  5537-5539,  6102. 

Tennessee.  —  Code  (1896),  §§  4705- 
4707,  7214. 

Texas.  —  Rev.  Stat.  (1895),  arts.  1348- 
1352,  1648-1650. 

Utah.  —  Rev.  Stat.  (1898),  §§  3213- 
3216,  3723. 

Vermont.  —  Stat.  (1894),  §§  829-83I, 
1448. 

Virginia.  — Code  (1887),  §  3283. 

Washington.  —  Ballinger's  Anno. 
Codes  and  Stat.  (1897),  §  4681,  subs.  7, 

§S  5093-5099- 

West  Virginia.  —Code  {I SSy),  p.  787, 

§43. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §§  2895.  2896,  3657. 

Wyoming.  —  Rev.  Stat.  (1887),  §§ 
2668-2672,  3483-3485. 

Amendment.  —  Such  irregularity  in  a 
confession  of  judgment  as  might  be 
corrected  by  amendment  in  cases  of 
ordinary  judgments  is  subject  to 
amendment.  Merchants  Nat.  Bank 
V.  Newton  Cotton  Mills,  115  N.  Car. 
507. 

1.  Consult  list  of  statutes  cited  supra, 
note  2,  p.  48. 

2.  Venae,  title  of  court  and  catue  must 
be  so  stated  as  to  conform  to  the  prac- 
tice in  the  particular  jurisdiction.  For 
statement  of  these  formal  parts  consult 
the  titles  Answers  in  Code  Pleading; 
Complaints;  Declarations;  Pleas. 

3.  A  clerk  of  court  may  confess  judg- 
ment against  himself  in  favor  of  his 


49 


Volume  5. 


6023. 


CONFESSION  OF  JUDGMENT. 


6023. 


favor  of  the  above  named  John  Doe  for  the  sum  oifive  hundred  dollars,^ 
and  do  hereby  authorize  {jiame  of  proper  official^'  of  the  {jianie  of  court) 
court,  in  and  for  the  county  of  (name  of  county),  and  state  oi  (jiame  of 
state),  to  enter  judgment  for  said  sum  against  me,  the  said  Richard  Roe, 
and  in  favor  of  him  the  sziid  John  Doe.  This  confession  of  judgment 
is  for  money  justly  due  (or  to  become  due)^  to  him  the  sdJid  Johti  Doe, 


creditors  when  he  acts  in  a  purely 
ministerial  capacity.  Smith  v.  Mayo, 
83  Va.  910. 

An  infant  cannot  confess  judgment  in 
his  own  name.  Soper  v.  Fry,  37  Mich. 
236;  Bennett  v.  Davis,  6  Cow.  (N.  Y.) 
393;  Knox  V.  Flack,  22  Pa.  St.  337. 

The  managing  agent  of  a  corporation 
has  authority  to  confess  judgment 
against  it.  Sharp  v.  Danville,  etc.,  R. 
Co.,  106  N.  Car.  308. 

A  married  woman  may  confess  judg- 
ment upon  a  contract  relating  to  her 
sale  of  separate  estate,  or  upon  other 
contracts  which  she  may  legally  make. 
Tanner  v.  State,  92  Ala.  53;  Koechling 
V.  Henkel,  144  Pa.  St.  215;  Birds.  Rev. 
Stat.  N.  Y.  (1896),  p.  1738,  §  72;  N.  Y. 
Code  Civ.  Proc,  §  1273,  as  amended 
Laws  (1877),  c.  416.  See  also  infra. 
Form  No.  6046  and  annotations  thereto. 

A  partner  cannot  confess  judgment 
for  his  copartner.  Soper  v.  Fry,  37 
Mich.  236;  Fairbanks  v.  Kraft,  43  Mo. 
App.  121;  McCleery  v.  Thompson,  130 
Pa,  St.  443- 

A  public  officer  may  confess  judgment 
for  an  amount  for  which  he  is  liable  to 
be  sued  as  such  officer.  Gere  v.  Cay- 
uga County,  7  How.  Pr.  (N.  Y.  Su- 
preme Ct.)  255. 

The  confession  of  one  does  not  author- 
ize a  judgment  against  two.  Clark  v. 
Holmes,  i  Dougl.  (Mich.)  390. 

One  of  several  joint  debtors  cannot  con- 
fess judgment  so  as  to  bind  those  not 
joining.  Tripp  v.  Saunders,  59  How. 
Pr.  (N.Y.  Supreme  Ct.)  379;  Ballinger 
V.  Sherron,  14  N.  J.  L.  144.  But  see  N. 
Y.  Code  Civ.  Proc,  §  1278;  Kantro- 
witz  V.  Kulla,  20  Abb.  N.  Cas.  (N.  Y. 
City  Ct.)  321;   Harbeck    v.    Pupin,   55 

Hun  (N.Y.)  335. 

1.  Judgment  for  a  specific  sum  must  be 
authorized  by  the  statement. 

California.  —  Code  Civ.  Proc.  (1897), 
§  1133.  See  also  list  of  statutes  cited 
supra,  note  2,  p.  48. 

2.  Confession  of  judgment  in  the  clerk's 
office  during  vacation  may  be  valid. 
Weinges  v.  Cash,  15  S.  Car.  44.  See 
also  list  of  statutes  cited  supra,  note 
2,  p.  48. 

A  judgment  may  be  confessed  either 


in  court  or  in  the  clerk's  office.  Vir- 
ginia Valley  Ins.  Co.  v.  Barley,  16  Gratt. 
(Va.)  363. 

3.  Only  for  money  due  or  to  become  due 
or  to  secure  against  contingent  liability  on 
behalf  of  defendant  can  judgment  be 
confessed. 

Iowa.  —  Code  (1897),  §  3814.  See  also 
list  of  statutes  cited  supra,  note  2, 
p.  48. 

Forms  for  confession  of  judgment  for 
money  to  become  due  may  easily  be 
drawn  by  so  altering  the  language  of 
the  forms  of  confession  of  judgment 
for  money  due  as  to  adapt  the  wording 
to  the  facts  of  the  particular  case. 

Forms  of  confession  of  judgment  to 
secure  against  contingent  liability  are 
given  infra.  Form  No.  6036. 

"Justly  Due." — The  statement  must 
state  that  the  amount  is  justly  due  or 
to  become  due.  Edgar  v.  Greer,  7 
Iowa  139.  See  also  list  of  statutes 
cited  supra,  note  2,  p.  48. 

The  statute  does  not  require  that  the 
confession  must  state  in  terms  that  the 
sum  is  justly  due.  The  particular  facts 
must  be  set  forth  in  such  a  manner  as 
to  show  not  only  a  just  debt,  but  the 
amount  thereof;  that  being  done,  an 
additional  averment  in  general  terms  of 
the  justice  of  the- debt  and  its  amount 
is  not  required.  Claflin  v.  Dodson,  lii 
Mo.  200,  following  Lanning  v.  Carpen- 
ter, 20  N.  Y.  459. 

A  statement  which  fails  either  to 
allege  or  to  set  out  facts  which  would 
show  that  the  amount  for  which  judg- 
ment is  confessed  was  still  justly  due 
is  insufficient.  Smith  v.  Smith,  117  N. 
Car.  351. 

A  confession  which  states  the  amount 
for  which  the  judgment  is  confessed 
and  states  the  same  to  be  due  on  a  cer- 
tain promissory  note  due  and  payable 
on  a  day  named,  and  that  the  consid- 
eration of  the  same  was  an  article  sold 
and  delivered,  sufficiently  alleges  that 
the  amount  "  is  justly  due."  Mer- 
chants Nat.  Bank  v.  Newton  Cotton 
Mills,  115  N.  Car.  507. 

Due  from  Judgment  Debtor.  —  A  state- 
ment that  the  confession  of  judgment 
is  for  money  "  due  to  the  said  plaintiff," 
50  Volume  5. 


6023. 


CONFESSION  OF  JUDGMENT. 


6023. 


arising  from  the  following  facts,  viz:  {Here  set  out  the  facts  out  of  which 
the  indebtedness  arose.y- 

Ric/iard  Roe?' 

(  Venue.  )^ 

I,  Richard  Roe^  being  duly  sworn,  say,  that  I  am  the  person  whose 
name  is  subscribed  to  and  who  executed  the  above  statement  and  con- 
fession, and  that  the  matters  of  fact  set  forth  in  said  statement  and 
confession  are  true  * 

Richard  Roe. 

i/urat.y 

{Venue  ^  title  of  court  and  cause. ^ 


but  not  stating  that  the  money  was  due 
from  the  judgment  debtor,  is  insuffi- 
cient. Citizens'  Nat.  Bank  v.  Allison, 
37  Hun  (N.  Y.)  137. 

1.  The  Statement. — Must  be  in  writing 
and  state  concisely  the  facts  in  such 
terms  as  will  make  it  known  to  the 
common  understanding  how  the  indebt- 
edness arose.  Stern  v.  Mayer,  19  Mo. 
App.  511;  Edgar  v.  Greer,  7  Iowa  139. 
See  also  list  of  statutes  cited  supra, 
note  2,  p.  48. 

Muit  he  fled  7oith  the  clerk  of  the  cou  rt 
in  which  the  judgment  is  to  be  entered. 

California. — Code  Civ.  Proc.  (1897), 
§  1 134..  See  also  list  of  statutes  cited 
supra,  note  2,  p.  48,  for  similar  statutory 
provisions  in  Idaho,  Minnesota,  Missouri, 
Montana,  Nevada,  South  Carolina,  Utah, 
and  other  states. 

Object  of  Statutory  Requirement.  —  It 
is  not  the  object  of  the  statutes,  how- 
ever, to  compal  the  debtor  to  state  suf- 
ficient of  the  transaction  to  enable  other 
creditors  to  form  an  opinion,  from  the 
facts  stated,  as  to  the  integrity  of  the 
debtor  in  confessing  a  judgment,  but 
all  that  is  required  is  to  state  facts  suf- 
ficient to  enable  them  to  investigate  the 
transaction  and  form  their  opinion  of 
the  honesty  of  the  judgment  from  the 
facts  thus  ascertained.  Atwater  v. 
Manchester  Sav.  Bank,  45  Minn.  351, 
followi n^yicDowcW  v.  Daniels,  38  Barb. 
(N.  Y.)  143;  Harrison  v.  Gibbons,  71 
N.  Y.  58;  Kern  v  Chalfant,  7  Minn. 
487;  Cleveland  Co-operative  Stove  Co. 
V.  Douglas,  27  Minn.  177;  Wells  v. 
Gieseke,  27  Minn.  478. 

2.  Statement  should  be  signed  by  the 
defendant. 

California.  — Code  Civ.  Proc.  (1897), 
§  1 133.  See  also  list  of  statutes  cited 
supra,  note  2,  p.  48. 

The  statement  must  be  signed  by  the 
parties  personally  against  whom  the 
judgment  by  confession  is  to  be  ren- 


dered. A  statement  signed  by  the 
attorneys  of  such  persons  is  not  suffi- 
cient. Reynolds  v.  Lincoln,  71  Cal. 
184. 

Signing  the  affidavit  of  verification  has 
been  held  to  be  a  sufficient  signing  of 
the  statement  for  judgment  by  confes- 
sion.    Kern  v.  Chalfant,  7  Minn.  487. 

3.  Venue  of  affidavits,  generally,  see 
the  title  Affidavits,  vol.  i,  p.  554 ^/jf"^. 

4.  The  confession  should  be  verified  by 
the  oath  of  the  defendant. 

California.  —  Code  Civ.  Proc.  (1897), 
§  1 133.  See  also  list  of  statutes  cited 
supra,  note  2,  p.  48. 

A  confession  of  judgment  must  strict- 
ly pursue  the  statute,  and  the  judgment 
entered  thereon  without  the  sworn 
statement  required  by  law  is  void  as  to 
creditors  of  the  defendant  not  made 
parties  to  the  action.  Bacon  v.  Ray- 
bould,  4  Utah  357. 

Insufficient  Affidavit.  —  An  affidavit 
that  defendant  "  believes  the  confessed 
statement  is  true  "  is  insufficient.  He 
must  swear  positively  to  the  truth  of 
the  facts  so  far  as  they  are  within  his 
own  knowledge.  Ingram  v.  Robbins, 
33  N.  Y.  40Q,  overruling  Delaware  z>. 
Ensign,  21  B'arb,  (N.  Y.)  85. 

The  confession  most  be  acknowledged,  in 
some  states,  by  the  parties  making  the 
same  before  some  officer  authorized  to- 
take  acknowledgments  of  deeds. 

Oregon.  —  Hill's  Anno.   Laws  (1892), 

§  253- 

tVaskington.  —  Ballinger's  Codes  and 
Stat.  (1897),  ^  5096. 

But  acknowledgment  is  not  required 
when  the  parties  or  their  attorneys  ap- 
pear in  court  or  before  the  clerk  in  va- 
cation. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§253. 

6.  Jurat  of  affidavits,  generally,  see 
the  title  Affidavits,  vol.  i,  p.  560  etseq^ 

6.  See  supra,  note  2,  p.  49. 
61  Volume  5. 


6024.  CONFESSION  OF  JUDGMENT.  6024. 

(^Itemized  statement  of  dis  bur  seme  nts.y- 

{^Venue.y^ 

I,  Oliver  Ellsworth,  being  duly  sworn,  say,  that  I  am  (one  of)  the 
attorney(^)  for  the  sdiidjohn  Doeabowt  named,  and  that  the  disburse- 
ments above  mentioned  have  been  made,  or  will  be  necessarily  paid 
or  incurred  therein. 

( Turat  '^  •  Oliver  Ellsworth. 

'  Qi)  Illustrations. 

I  aa.  Upon  Account. 

Form  No.  6024.* 

In  the  District  Court  in  and  for  Harrison  County,  Iowa. 

John  Doe,  plaintiff,       ) 

against  >■  Confession  of  Judgment. 

^/V//d!r^-^^<?,  defendant.  ) 

I,  Richard  Roe,  oi  Harrison  county,  Iowa,  defendant  above  named, 
do  hereby  confess  that  I  am  justly  indebted  to  John  Doe  of  said  Har- 
rison county,  state  of  Iowa,  plaintiff  above  named,  in  the  sum  of  five 
hundred  dollars ;  and  I  do  hereby  authorize  the  clerk  of  the  District 
Court  in  and  for  said  county  and  state  to  enter  a  judgment  in  said 
court  in  favor  of  the  said  John  Doe  and  against  me,  sdad  Richard  Roe, 
for  the  sum  oifive  hundred  dollars,  with  interest  and  costs.* 

This  confession  of  judgment  is  for  a  debt  justly  due  and  owing 
from  me  to  the  plaintiff  for  goods,  wares  and  merchandises,  being 
groceries,  dry  goods,  salt,  calico,  muslin,  molasses,  sugar,  and  other 
articles  sold  and  delivered  by  them  to  me  at  various  times  within  the 
last  two  years,  as  per  schedule  annexed  to  this  statement  and  made 
.a  part  thereof.^ 

Dated  at  Logan,  Iowa,  the  ninth  day  oi  February,  i898. 

Richard  Roe. 
State  of  Iowa,        \ 
Harrison  County.  \ 

Richard  Roe,  being  first  duly  sworn,  deposes  and  says,  that  he  is 

the  person  named  in  and  who  made  and  subscribed  to  the  foregoing 

confession  of  judgment;  that  he  has  read  the  same  and  knows  the 

contents  thereof,  and  that  the  same  and  the  statements  therein  con- 

.tained  are  true. 

Richard  Roe. 

Subscribed  in  my  presence  and  sworn  to  before  me  by  Richard  Roe, 
this  nifith  day  oi  February,  i898. 

(seal)  Norton  Porter,  Notary  Public. 

1,  Statement  of  disbursements,  follow-  Clements  v.  Gerow,  i  Abb.  App.  Dec. 
ing  the  practice  in  Minnesota  and  New     (N.  Y.)  370,  reversing  30   Barb.  (N.  Y.) 

York,  consult  Forms  Nos.  6031,  6034,  325. 

infra.  Another  form  of  statement  for  confess- 

2.  See  supra,  note  3,  p.  51.  ing  judgment  upon  an  account  may  be 
8.  See  supra,  note  5,  p.  51.  as  follows:  {Commencing  as  in  Form 
4.  Iowa.  —  Code  (1897),  §  3813  et  seq.  No.  6024,  and  continuing  to*)  "This  con- 
6.  This    statement    was    upheld    in  fession  of  judgment  is  for  a  debt  justly 

52  Volume  5. 


6025. 


CONFESSION  OF  JUDGMENT. 


6026. 


Form  No.  6025.' 

(Miss,  Anno.  Code  (1892),  §  753.) 

The  State  of  Mississippi, )  In  the  Circuit  Court  of  said  county,  tenth 
De  Soto  County.  \  day  of  December,  a.  d,  iB>97. 

John  Doe  states,  on  oath,  that  Richard  Roe  is  justly  indebted  to 
him  for  the  amount  of  sixty  dollars  on  an  instrument  of  writing  in  the 
following  words  and  figures,  viz:  {Here  set  out  a  copy  of  the  satne),  [and 
(/«  case  of  indorsement  say^  indorsed  as  follows:  (^Ifere  copy  the  indorse- 
ntenty\  ;  (or  on  open  account,  of  which  a  copy  is  hereunto  attached'),  which 
remains  due  and  unpaid,  and  that  said  sum  of  money  is  not  due  or 
claimed  upon  a  fraudulent  or  usurious  consideration. 

John  Doe. 

Sworn  to  and  subscribed  the  tenth  day  of  December,  a.  d.  i897j, 
before  me,  Calvin  Clark,  Clerk. 

I  do  hereby  acknowledge  myself  indebted  to  the  said  John  Doe  irr 
the  sum  of  sixty  dollars,  which  includes  interest  up  to  the  first  day  of 
the  next  term  of  the  said  Circuit  Court;  and  I  give  my  consent  for 
judgment  to  be  rendered  against  me  in  favor  of  said  John  Doe  at  the 
next  term  of  the  said  Circuit  Court  for  said  amount,  and  all  legal 
costs  accruing  thereon,  [with  stay  of  execution  (if  any)  until  {as  may; 
be  agreed  upon).^ 

Richard  Roe. 

Taken  and  acknowledged  the  tenth  day  of  December,  a.  d.  i897v 
before  me,  Calvin  Clark,  Clerk. 

bb.  Upon  Note. 

Form  No.  6026.* 

In  the  Superior  Court  of  the  County  of  San  Diego,  State  of 
California. 

due  and  owing  from  me  to  the   said  {Signed,  dated  and  verifed  as  in  Form 

plaintiff  for  the  following  causes:  No.  6024.) 

1.  I  have  received  from  the  said  The  omission  of  the  schedule  referred 
plaintiff,  for  my  benefit,  the  following  to  in  the  statement  as  being  annexed 
money,  goods  and  services,  of  the  value  thereto  and  made  a  part  of  the  same 
and  at  the  times  stated  as  follows:  does  not  invalidate  the  judgment  ren- 

1897.  dered  upon  the  confession.     So  held  in 

une  J.    Wheat  delivered  at  my  Clements  v.  Gerow,  i  Abb.  App.  Dec. 

store  in  Logan $^o^  12  (N.  Y.)  370,  reversing  30  Barb.  (N.  Y.) 

July    6.  Barrels    delivered    at  325. 

Logan 124  23  1.  Mississippi.  —  Anno.    Code   (1892), 

"    18.   Flour  delivered  at  Lo-  §  753.     This  section  provides  that  if  the 

gan ^os  00  evidence  of  the  debt  be  in  writing,  the 

Aug.  10.  Cash JO  00  same  shall  be  filed  with  said  statement, 

*'    20.  Transportation  of  my  and   if  not   in  writing,  then  a  copy  of 

goods    from    Wood.  the  open  account  shall  be  filed,  and  the 

bine  lo  Logan 37  6j  party   indebted   shall   sign    before  the 

2.  I  have  paid  or  delivered  to  the  clerk  an  acknowledgment,  written  upon 
plaintiff,  on  account  thereof,  the  follow-  or  annexed  to  said  statement,  to  the 
ing  moneys,  or  goods,  of  the  value  and  effect  as  given  in  the  text. 

at  the  times  stated  as  follows:  2.  California. — Code  Civ.  Proc.(l897), 

1897.  §  II33-     See  also  list  of  statutes  cited 

Aug.  18.  Cash %5^  00      supra,  note  2,  p.  48. 

Oct.  10.  Groceries q2  00"        Another  form  of  statement  for  confes- 

58  Volume  5. 


6026. 


CONFESSION  OF  JUDGMENT, 


6026. 


James  E.  Corbett,  plaintiff,   ^ 

against  >  Confession  of  Judgment  without  Action. 

Noel  Davenport,  defendant.  ) 

Noel  Davenport,  the  defendant  in  the  above  entitled  action,  does 
hereby  confess  judgment  therein  in  favor  of  James  E.  Corbett,  the 
plaintiff  in  the  said  action,  for  the  sum  of  ten  hundred  and  thirty-seven 
and  fifty-five  one-hundredths  dollars,  and  authorizes  judgment  to  be 
entered  therefor  against  him  with  six  per  cent,  interest  thereon  from 
this  date. 

This  confession  of  judgment  is  for  a  debt  justly  due  to  the  said 
plaintiff,  arising  upon  the  following  facts,  to  wit:*  The  said  defend- 
ant, on  the.  fifteenth  day  of  September,  i87i,  made,  executed  and  deliv- 
ered to  the  said  plaintiff  his  certain  promissory  note  of  that  date  for 
the  sum  of  ten  hundred  and  thirty-seven  and  fifty -five  one-hundredths 
dollars,  due  and  payable  one  year  after  date,  said  note  having  been 
made,  executed  and  delivered  as  aforesaid  to  secure  the  payment  of 
the  purchase  price  of  certain  goods,  to  wit,  ofie  thousand  bushels  of 
wheat,  which  said  wheat  was  sold  and  delivered  by  said  plaintiff  to 
said  defendant  on  the  s,b.i(\  fifteenth  day  of  September,  iS71.^     No  part 


sion  of  judgment  on  note  may  be  as 
follows:  (Commencing-  as  in  Form  No. 
6026,  and  continuing  to*)  "  i.  {State  the 
consideration  of  the  note  as  fully  as  if 
judgment  were  confessed  upon  that  instead 
of  upon  the  note).  2.  On  the  fifteenth 
day  of  September,  187/,  in  consideration 
whereof,  I  made  to  the  plaintiff  my 
promissory  note  for  the  sum  of  ten 
hundred  and  thirty-seven  and  fifty-five 
one-hundredths  dollars,  payable  on  the 
fifteenth  day  of  September,  187^." 
(Dated,  signed  and  verified  as  in  Form 
No.  6026.) 

By  an  Indorser  to  his  Indorsee.  — (Com- 
mencing as  in  Form  No.  6026,  and  con- 
iinuittg  down  to  *)  "1.  In  consideration 
of  one  thousand  dollars  guarantee  com- 
mission paid  to  me  by  the  said  plaintiff 
on  the  fifth  day  of  November,  187/,  I 
indorsed  to  him  before  its  maturity  a 
promissory  note  made  by  one  Samuel 
Short  on  the  fifteenth  day  of  September, 
187/,  at  the  city  and  cowniy  of  San  Fran- 
.cisco,  state  of  California,  for  the  sum  of 
ten  hundred  and  thirty-seven  and  fifty- 
Jive  one-hundredths  dollars,  payable  to 
my  order  on  the  fifteenth  day  of  Sep- 
tember, 187.?.  2.  The  same  has  been 
dishonored."  (Signed,  dated  and  veri- 
fied as  in  Form  No.  6026.) 

By  Indorser  to  a  Bemote  Indorsee. — 
{^Commencing  as  in  Form  No.  6026,  and 
continuing  down  to*)  "  1.  I  indorsed  and 
negotiated  before  its  maturity  a  certain 
bill  of  exchange  made  by  one  Samuel 
Short  on  the  fifteenth  day  of  September, 
187/,   at    the   city   and  county  of    San 


Francisco,  state  of  California,  requiring 
one  fohn  Smith  to  pay  to  my  order  ten 
hundred  and  thirty-seven  and  fifty- five 
one-hundredths  dollars  three  days  after 
sight  thereof.  2.  The  same  was  after- 
ward transferred  to  the  plaintiff.  3. 
The  same  has  been  dishonored." 
(Signed,  dated  and  verified  as  in  Form 
No.  6026.) 

1.  Must  State  Facts  of  the  Indebted- 
ness.— In  Pond  V.  Davenport,  44  Cal. 
482,  upon  the  facts  of  which  case  this 
statement  is  based,  the  statement  ac- 
tually used  therein  was  held  to  be  sub- 
stantially defective  in  omitting  to  set 
forth  the  consideration  of  the  note  and 
the  facts  out  of  which  the  indebtedness 
arose.  The  court  held  that  it  was  not 
sufficient  in  such  a  statement  to  merely 
say  that  the  promissory  note  was  given 
for  money  due  to  the  plaintiff  from  the 
defendant. 

Sufficiency  of  Statement  on  Promissory 
Note.  —  If  the  debt  is  a  note  and  it  was 
given  for  money  loaned,  it  is  enough 
to  say  so,  describing  the  note.  Mechan- 
ics Bank  i'.  Mayer,  93  Mo.  421;  Hardz/. 
Foster,  98  Mo.  312.  The  following 
statements  have  been  held  to  be  suffi- 
cient : 

"On  one  promissory  note  given  by 
me  to  the  said  Lanning  on  the  eighth 
day  of  December,  185^,  for  one  hundred 
dollars  borrowed  money  on  which  is 
indorsed  eleven  dollars  and  sixty  cents, 
said  note  due  when  given.  Also,  one 
promissory  note  of  three  hundred  and 
forty  dollars  made  by  me  and  dated  the 


54 


Volume  5. 


6027. 


CONFESSION  OF  JUDGMENT, 


6027. 


ss. 


of  said  note  or  interest  thereon  has  been  paid,  and  the  whole  thereof, 
together  with  interest  thereon,^  is  now  justly  due  and  owing  by  said 
defendant  to  said  plaintiff. 

Dated  the  nineteenth  day  of  September^  i872. 

Noel  Davenport. 
State  of  California,      \ 
County  of  San  Diego.  \ 

Noel  Davenport,  being  duly  sworn,  says,  that  he  is  the  person  who 
signed  the  above  statement,  and  that  he  is  indebted  to  the  said  James 
£.  Corbet  t  in  the  sum  of  ten  hundred  and  thirty-seven  and  fifty  one-hun- 
dredths  dollars,  in  said  statement  mentioned,  and  that  fhe  facts  stated 
in  the  above  confession  and  statement  are  true. 

Noel  Davenport. 

Subscribed  and  sworn  to  before  me  this  nineteenth  day  of  September^ 
1^72. 

(seal)  G.  N.  Hitchcock,  Notary  Public. 

Form  No.  6o2  7.» 
(Precedent  in  Jarosh  v.  fasten,  57  Iowa  569.)* 
James  H.  Easton     \ 

V.  I  Confession  of  judgment  in  Circuit  Court, 

John  Kavorek,        [  Winneshiek  county,  Iowa. 
Jean  Suchan,  Def 'ts.  J 

We,  John  Kavorek  and  Jean   Suchan   of  Blank  township,  in   the 

fendant  the  payment  of  the  sum  of 
two  thousand  dollars,  for  which  the  de- 
fendant has  given  to  the  plaintifif  two 
notes,  made  by  said  defendant,  of  one 
thousand  dollars  each;  one  payable  in 
sixty  days  from  the  twelfth  of  November 
aforesaid,  and  the  other  in  ninety  days 
from  said  date."  Ely  v.  Cooke,  28  N. 
Y.  365. 

But  compare  the  insufScient  state- 
ments discussed  in  the  following  cases  : 
Pond  V.  Davenport,  44  Cal.  486;  Ken- 
nedy V.  Lowe,  9  Iowa  580;  Edgar  v. 
Greer,  7  Iowa  136;  Butts  v.  Schieffelin, 
5  Civ.  Proc.  Rep.  (N.  Y.  Supreme  Ct.) 
415;  Chappel  V.  Chappel,  12  N.  Y.  215. 

1.  Confession  for  a  greater  rate  of  in- 
terest than  the  note  upon  which  it  is 
based  bears  will  not  invalidate  the 
judgment  in  the  absence  of  fraud 
shown.  Merchants  Nat.  Bankz/.  New- 
ton Cotton  Mills,  115  N.  Car.  507. 

2.  Iowa.  — QoAt.  (1897),  g  3815.  See 
also  list  of  statutes  cited  supra,  note 
2,  p.  48. 

Cases  on  appeal  from  an  award  made  by 
commissioners  in  assessing  damages 
for  right  of  way  are  within  the  provi- 
sions of  Iowa  Code  (1897),  §  3818.  Har- 
rison V.  Iowa  Midland  R.  Co.,  36  Iowa 
323. 

3.  Signed  by  One  u  Surety.  —  In  this 


seventeenth  day  of  October,  i8j^,  due 
when  given,  and  now  owned  by  said 
Lannins,  the  same  being  given  for  bor- 
rowed money."  Lanning  ».  Carpenter, 
20  N.  Y.  448. 

"  For  a  debt  arising  on  a  promissory 
note  made  by  the  defendant  to  plain- 
tiff, and  upon  which  there  is  this  day 
due  the  sum  of  seven  hundred  and  eighty- 
two  dollars  and  forty-seven  cents, 
together  with  eighty  dollars  and  forty- 
one  cents  now  due  the  plaintiff  from  the 
defendants,  and  costs  in  an  action 
brought  against  the  defendants  by  the 
plaintiff  on  said  promissory  note  in 
supreme  court,  which  suit  is  now  dis- 
continued by  the  plaintiff  upon  this 
confession  of  judgment  to  him  by  the 
defendants.  And  we  hereby  state  that 
the  sum  hereby  by  us  confessed  is 
justly  due  to  the  said  plaintiff,  without 
any  fraud  whatever."  Freligh  v. 
Brink,  22  N.  Y.  418. 

"  The  defendant  has  from  time  to 
time  borrowed  of  the  plaintiff  money, 
and  there  is  now  due  to  the  plaintiff 
from  the  defendant  the  sum  of  S/j'oo 
for  cash  borrowed,  for  which  the  plain- 
tiff holds  the  note  of  defendant,  bearing 
date  the  twelfth  day  of  November,  iSjo, 
and  payable  six  months  after  date. 
The  plaintiff  has  assumed  for  the  de- 


55 


Volume  5. 


6027.  CONFESSION  OF  JUDGMENT.  6027. 

county  of  Winneshiek,  and  State  of  Iowa,  defendants  above  named, 
do  hereby  confess  that  we  are  jointly  and  severally  justly  indebted 
to  James  H.  Easton  of  Decorah,  Iowa,  plaintiff  above  named,  in  the 
sum  of  one  hundred  and  forty  (and  %15  attorney's  fees  as  provided  for 
in  said  note)  dollars,  with  interest  at  teji  per  cent,  per  annum,  from 
the  22d day  oi  February,  iS78,  and  we  do  hereby  authorize  the  clerk 
of  the  Circuit  Court  of  said  county  and  state  to  enter  a  judgment  in 
said  court  in  favor  of  said  plaintiff,  and  against  us  and  each  of  us  as 
defendants,  for  the  sum  of  one  hundred  and  forty  (a-nd  ^15  attorney's 
fees  and  %3.60  costs)  dollars,  with  interest  at  ten  per  cent,  per  annum, 
from  the  £2d  day  oi  February,  a.  d.  i875,  and  costs.  It  is  stipulated 
and  agreed  that  the  interest  on  said  judgment  shall  be  paid  semi- 
annually, so  long  as  the  said  judgment  remains  unpaid,  and  if  default 
be  made  in  the  payment  of  said  interest,  or  any  part  thereof,  at  the 
time  the  same  becomes  due,  then  at  any  time  thereafter  on  applica- 
tion of  the  plaintiff  to  the  clerk  therefor,  execution  shall  immediately 
issue  for  the  whole  amount  of  said  judgment,  principal,  interest  and 
costs. 

This  confession  of  judgment  is  for  a  debt  justly  owing  and  now  due 
to  said  plaintiff,  and  the  following  is  a  concise  and  true  statement  of 
the  facts,  out  of  which  the  said  debt  arose,  to  wit:  On  the  22d  day  of 
February,  i878,  at  our  request,  James  H.  Easton,  the  plaintiff  herein, 
loaned  us  the  sum  of  one  hundred  and  forty  dollars,  for  which  we  did 
on  that  day  execute  to  said  plaintiff  a  promissory  note  for  the  whole 
amount,  ^aydikAe  November  15th,  i878,  and  interest  at/^«  per  cent,  per 
annum,  payable  quarterly.  Said  note  is  now  unpaid  and  this  judgment 
is  confessed  to  secure  payment  of  said  note  and  interest,  %15  attor- 
ney's fees  and  %B.50  costs,  and  we  further  state  that  the  said  sum, 
above  confessed,  is  justly  owing  and  now  due  to  said  plaintiff  from 
us,  and  each  of  us,  without  any  fraud  or  illegal  consideration  what- 
ever. And  it  is  further  understood  that  execution  is  not  to  issue  on 
this  judgment  until  the  1st  day  oi  November,  a.  d,  i875,  provided  that 
default  be  not  made  in  the  payment  of  interest  when  due,  as  above 
provided. 

Dated  Spillville,  Iowa,  December  26,  i878. 

John  Kavorek. 

Jean  Suchan. 
State  of  Iowa,   \ 
Winneshiek  Co.  \ 

John  Kavorek,  and  Jean  Suchan,  being  first  duly  sworn,  depose  and 
say,  each  for  himself,  that  he  is  the  person  named  in,  and  who  made 
and  subscribed  to,  the  foregoing  confession  of  judgment;  that  they 
have  read  the  same  and  know  the  contents  thereof,  and  that  the  same 
and  statements  therein  contained  are  true. 

John  Kavorek. 

Jean  Suchan. 

case  the  confession  was  signed  also  by  against    the  principals    Kavorek    and 

one  Albert  Jarosh,  as  surety,  who  also  Suchan,  for  the  reason  that  Jarosh  was 

acknowledged  and  verified  the  same,  only  bound  as  surety  for  the  payment 

The  court  held,  however,  that  the  cog-  of  the  judgment,  not  a  word  appearing 

novit  did  not  authorize  judgment  to  be  in  the  confession  to  authorize  the  entry 

entered    against    Jarosh,    but    merely  of  a  judgment  against  him. 

56  Volume  5. 


6028.  CONFESSION  OF  JUDGMENT.  6028. 

Subscribed  in  my  presence  and  sworn  to  before  me  by  John  Kavorek 
and  Jean  Suchan  this  26th  day  oi  December^  a.  d.  \Z78. 

[(seal)]  O.  Kalper^  Notary  Public. 

Form  No.  602 8. > 

(Precedent  in  Burnham  v.  Blank,  49  Mo.  App,  57.) 

In  the  Circuit  Court  of  Jackson  County,  Missouri,  at  Kansas  City. 
Mary  Samter,  Plaintiff,  ) 

against  [■  No.  10860. 

Max  Blank,  Defendant.  ) 

First.  The  amount  for  which  judgment  may  be  rendered  against 
me  in  favor  of  Mary  Samter  is  %oOO,  and  interest  accrued  thereon, 
%12.Jt5,  making  in  all  %512.J^5,  and  I  authorize  judgment  to  be 
entered  against  me  for  ^12.Jf5  in  the  above  cause. 

Second.  The  facts  out  of  which  the  above  indebtedness  arose  are 
as  follows:  I,  Max  Blank,  being  in  the  mercantile  business,  at  num- 
ber lJf28  East  Eighteenth  Street,  Kansas  City,  Missouri,  borrowed 
from  Mary  Samter  the  sum  of  %[>00  to  pay  certain  liabilities  I  had 
incurred  in  said  business;  that  the  said  sum  of  %500  was  used  in  pay- 
ing for  goods  that  were  purchased  and  used  by  me  in  said  business 
at  the  above  number;  that  at  the  time  I  borrowed  said  sum  of  %500 
from  Mary  Saunter  I  executed  and  delivered  to  her  five  %100  notes, 
due  in  one,  two,  three,  four  and  five  months  from  their  date,  viz.,  Sep- 
tember I,  1 857;  that  none  of  said  notes  have  been  paid  by  me,  or  any 
part  of  said  sum  of  %500,  and  that  the  same  is  now  justly  due  the 
said  Mary  Samter-,  that  all  of  said  notes  are  not  now  due;  that  said 
notes  bear  interest  from  date  at  the  rate  of  ten  per  cent,  per  annum. 2 

Max  Blank. 

Witness:  Eugene  Schilling. 

1.  Missouri.  —  Rev.  Stat.  (1889),  §§  of  Philadelphia,  state  of  Pennsylvania, 
2229-2231.  See  also  list  of  statutes  in  the  sum  of  %ijoo  on  account  of  my 
cited  supra,  note  2,  p.  48.  certain  negotiable  promissory  note,  by 

2.  This  statement  was  sustained  me  made  in  my  firm  name  to  the  order 
against  objection  that  it  did  not  state  oi  Levi  Stern,  Sind\nAors^dhy  A.  Afayer 
concisely  the  manner  in  which  the  in-  dr*  Son  for  my  accommodation,  and 
debtedness  arose,  in  that  it  did  not  negotiated  and  delivered  by  me  for 
show  that  the  sum  confessed  was  justly  value  before  maturity  to  said  Levi 
due,  that  there  was  no  description  of  the  Stern. 

note  on  which  the  judgment  was  con-  The  facts  out  of  which  this  indebted- 
fessed,  that  there  was  no  allegation  that  ness  arose  are  as  follows:  On  January 
plaintiff  paid  any  consideration  for  it,  j/,  1893',  I  made  and  executed  my 
that  the  note  was  not  filled  with  the  promissory  note  under  the  firm  name 
statement,  and  that  the  amount  of  the  of  y.  /.  Mayer  &*  Co.,  by  which  I  prom- 
judgment  confessed  was  in  excess  of  ised  to  pay,  ninety  days  after  date,  to 
the  amount  due  according  to  the  state-  the  order  of  Levi  Stern,  $/^joo  at  our 
ment.  office,  goo  Olive  street,  St.  Louis;  that 

In  Stern  v.  Mayer,  19  Mo.  App.  513,  thereupon  said  note  was  indorsed  by 

the  statement  was  as  follows:  A.  Mayer  dr*  Son  for  my  accommoda- 

"  State  of  Missouri,  )  tion,  and  by  me  delivered  to  said  Levi 

City  of  St.  Louis.    |  Stern    for   money    which   he   then   and 

Whereas,  I,  J.  /.  Mayer,  of  the  city  there  gave  me  for  said  note  as  a  loan 

of  St.  Louis,  doing  business  under  the  for  said  sum  of  $/^oo.      And  desiring 

name  and  style  of  y,  /.  Mayer  6^  Co.,  to  secure  the  payment  of  said  indebt- 

am  indebted  to  Levi  Stern,  of  the  city  edness,  I  do  hereby  authorize  the  «><:««/ 

67  Volume  5. 


6029.  CONFESSION  OF  JUDGMENT,  6029. 


'''^'^^  \  ss 


State  of  Nebraska, 
County  of  Saline. 

Max  Blank.,  being  duly  sworn,  on  his  oath  deposes  and  says :  That 
the  facts  set  forth  in  the  foregoing  statement  are  true. 

Max  Blank. 

Subscribed  and  sworn  to  before  me  this  third  day  of  December^ 
A.  D.  i8<97. 

(seal)  Eugene  Schillings  Notary  Public. 

My  commission  expires  October  26,  iS92. 

{Indorsement.  )^ 

cc.  Upon  Sealed  Instrument. 

Form  No.  6029.' 

(Precedent  in  Uzzle  v.  Vinson,  iii  N,  Car.  138.) 

In  the  Superior  Court  —  Johnston  County. 
Esther  Vinson  ) 

V.  >•  Judgment  by  Confession. 

A.  B.  Vinson.  ) 

I,  A.  B.  Vinson,  hereby  confess  judgment  in  favor  of  the  above 
named  plaintiff  for  the  sum  of  twenty-two  hundred  and  fifty  (^250) 
dollars,  and  authorize  the  entry  of  judgment  therefor  against  me, 
with  interest  at  six  per  cent,  from  Noi^ember  2,  i876.  This  con- 
fession is  for  the  amount  due  on  a  bond  under  seal  executed  by  the 
defendant  to  plaintiff,  dated  November  1,  iS76,  and  the  defendant  A. 

B.  Vinson  maketh  oath  —  ^ 

court,  of  the  city  of  St.  Louis,  to  enter  Confession  before  Clerk  of  the  Superior 

judgment  against  me  for  the  said  sum  Court.  —  The  following  is  the  ordinary 

of  f/.joo,  which  sum  is  justly  due  and  North  Carolina  form  of  confession  of 

owing  according  to  the  tenor  and  effect  judgment  before  a  clerk  of  the  superior 

of  said  note  herein  described,  to  Levi  court: 

Stern,  and  costs  in  favor  of  said  Z^ot  ^''Mecklenburg    County   —  Clerk    of 

Stern.                              Jacob  /.  Mayer.  Superior  Court. 

Jlt^V^^^^'k  Y'l^   '/r?>,'-'^r  >^f  ^f     [Before  Calvin    Clark, 

that  he  believes  the  facts  set  forth  m  the  against        >■  r\p:r\r  C     'i  C 

foregoing  statement  to  be  true,  and  the  Richard  Roe.   J                 ... 

same  are  true,  and  that  the  debt  herein  I.  I,  Richard  Roe,  defendant    in  the 

mentioned  is  bona  fide   and  for  a  fair  above    entitled   case,     hereby    confess 

and  valuable  consideration   as  herein  judgment  in  favor  of  yic.^^  Z><7<',  plaintiff 

stated.                            Jacob  /.  Mayer.  in  tlie  above  entitled  case,  for   the  sum 

Subscribed  and  sworn  to,"  etc.  of  three  hundred  dollars,  and  do  hereby 

1.  Indorsement  of  filing  upon  the  con-  authorize  the  entry  of  judgment  for 
fession  was:  "No.  io,8bo.  Mary  Samter  such  sum  against  me  on  this  ninth  day 
V.Max  Blank.   Confession  of  Judgment,  oi  February,  iZg8. 

Filed  December  J,  i8<$^.     L.  F.  McCoy,  II.  This   confession    of  judgment  is 

Clerk."  for  a  debt  now   justly    due    from   me, 

2.  North  Carolina.  —  Code  (1883),  §  said  defendant,  to  the  said  plaintiff, 
571.  See  also  list  of  statutes  cited  J«/ra,  arising  from  the  following  facts:  {Here 
note  2,  p.  48.  insert  concise  and  accurate    statement  of 

3.  The  statement  of  indebtedness  in  this  facts  out  of  which  the  indebtedness  arose); 
confession  was  held  to  be  a  sufficient  which  said  sum  is  now  due  to  said 
compliance  with  the  statute  describing  plaintiff  over  and  above  all  just  de- 
the  manner  of  confessing  judgments,  mands  that  I,  the  said  defendant,  have 
distinguishing  Davidson  v.  Alexander,  against  him,  the  said  plaintiff. 

84  N.   Car.    621;  Davenport  v.   Leary,  Richard  Roe." 

95  N.  Car.  203.  {Verification  as  in  Form  No.  6osg.) 

58  Volume  5. 


6030. 


CONFESSION  OF  JUDGMENT. 


6030. 


1.  That  said  amount  of  ^250,  with  interest  at  six  per  cent,  from 
November  2,  iS76,  is  justly  due  by  him  to  the  plaintiff. 

2.  That  said  amount  is  due  by  him  to  the  plaintiff  on  a  bond  under 
seal  for  borrowed  money  due  and  payable  November  2,  i876. 

A,  B.  Vinson. 
North  Carolina — Johnston  County. 

A.  B.  Vinson  being  sworn,  says  that  the  facts  set  forth  in  the  fore- 
going confession  are  true. 

A.  B.  Vinson. 
Sworn  to  and  subscribed  before  me,  October  31,  iS9J. 

W.  S.  Stevens,  C.  S.  C. 

dd.  For  Goods  Sold. 

Form  No.  6030.' 

In  the  District  Court  of  the  First  Judicial  District  of  the  State  of 
Idaho,  in  and  for  the  County  of  Shoshone. 

John  Doe,  plaintiff,      ^ 

against  >•  Confession  of  Judgment  without  Action. 

Richard  Foe,  defendant.  ) 

Richard  Foe,  of  Murray,  county  of  Shoshone,  state  of  Idaho,  defend- 
ant in   the  above  entitled   action,    does   hereby  confess   judgment 


In  the  justice's  coort,  the  confession  of 
judgment  before  a  justice  of  the  peace 
in  North  Carolina  follows  the  same 
form  used  in  confession  before  the 
clerk  of  the  superior  court,  substituting 
the  words  ''Justice's  Court"  for  the 
words  "  clerk  of  Superior  Court"  and 
"J.  P."  for  "C.  S.C" 

Aathorizing  Clerk  to  Enter  Judgment. — 
If  the  confession  does  not  contain 
words  expressly  authorizing  the  clerk 
to  enter  judgment,  and  the  record 
shows  that  the  confession  was  sw^orn  to 
and  filed  and  judgment  thereon  entered, 
the  filing  is  equivalent  to  an  expressed 
authority  for  its  entry  and  sufficiently 
conforms  to  the  statute.  Merchants 
Nat.  Bank  v.  Newton  Cotton  Mills,  115 
N.  Car.  507.  In  this  case  the  confes- 
sion of  judgment  was  as  follows: 

"  State  of  North  Carolina  —  County  of 
Catawba. 

In  the  Superior  Court. 
The  Merchants  National  Bank  "j 
of  Richmond,  Va.,  I 

^-  I 

The  Newton  Cotton  Mills.      J 

The  Newton  Cotton  Mills,  by  W.  H. 

Williams,    president,  being    thereunto 

duly    authorized  by  the  Newton  Cotton 

Mills,    hereby   confesses    judgment  in 

favor  of    The  Merchants  National  Bank 

of  Richmond,  Va.,    the  plaintiff  above 


named,  for  the  sum  of  five  thousand 
three  hundred  and  seventy-one  dollars  and 
sixty  cents,  with  interest  at  8  per  cent. 
iromfuly  igth,  iSgj.  This  confession 
of  judgment  is  to  secure  the  plaintiff 
the  sum  above  named,  which  is  due  by 
a  certain  promissory  note  made  by  the 
Newton  Cotton  A/ills  to  the  firm  of  Heath, 
Springs  dr»  Co.,  and  the  said  Heath, 
Springs  ct^  Co.  indorsed  to  the  plaintiff 
for  value,  which  said  note  became  due 
and  payable  on  the  ipth  day  oi  July, 
iSgj.  That  the  consideration  of  this 
note  was  for  cotton  sold  and  delivered 
to  the  Newton  Cotton  Mills  by  Heath, 
Springs  6^  Co. 

Newton  Cotton  Mills, 
by  W.  H.  Williams,  President. 
North  Carolina  —  Catawba  County. 

Before  me,  y.  F.  Herman,  Clerk  of 
the  Superior  Court  of  Catawba  County, 
personally  appeared  W.  H.  Williams, 
President  of  the  N^ewton  Cotton  Mills, 
who,  being  duly  sworn,  maketh  oath 
that  the  statement  above  signed  by  him 
is  true. 

W.  H.  Williams. 

Subscribed  and  sworn  to  before  me 
July  ji,  189J.  J.  F.  Herman, 

Clerk  Superior  Court.*' 

1.  Idaho.  — "^f^M.  Stat.  (1887).  §  5061. 
See  also  list  of  statutes  cited  supra, 
note  2,  p.  48. 

8  Volume  5. 


6030.  CONFESSION  OF  JUDGMENT.  6030. 

therein  in  favor  of  John  Doe,  of  Murray,  county  of  Shoshone,  state 
of  Idaho,  the  plaintiff  in  said  action,  for  the  sum  of  five  hundred 
dollars  in  gold  coin  of  the  United  States,  and  authorize  judgment  to  be 
entered  therefor  agamst  him  with  six  per  cent,  interest  thereon 
from  this  date. 

This  confession  of  judgment  is  for  a  debt  justly  due  to  the  said 
John  Doe,  plaintiff,  arising  from  the  following  facts,  to  wit:  The 
said  plaintiff,  at  divers  and  various  dates  and  times  in  the  year  of 
i8P7,  sold  and  delivered  certain  goods  to  said  defendant,  to  wit:  One 
hundred  sacks  of  flour,  at  one  dollar  and  fifty  cents  per  sack;  six 
hundred  pounds  of  bacon,  a.t  twelve  and  one-ha/f  cents  per  pound;  four 
hundred  pounds  of  sugar,  at  ten  cents  per  pound,  and  upon  such  sales 
there  is  now  justly  due  and  owing  to  the  said  plaintiff  a  balance 
amounting  to  two  hundred  dollars.  ^  Also  the  said  plaintiff,  on  the 
first  day  of  February,  i897,  loaned  to  said  defendant  the  sum  of  three 
hundred  dollars  in  gold  coin  of  the  United  States,  which  said  sum  of 
three  hundred  dollars  is  now  justly  due  and  owing  to  the  said  plain- 
tiff from  the  said  defendant. 

Dated  the  ninth  day  of  February^  i898. 

Richard  Roe,  Defendant. 
State  of  Idaho,  \ 

County  of  Shoshone.  \ 

Richard  Roe,  being  duly  sworn,  says  that  he  is  the  person  who 
signed  the  above  statement  and  that  he  is  indebted  to  the  said  John 
Doe  in  the  sum  of  five  hundred  dollars  in  gold  coin  of  the  United 
States,  in  said  statement  mentioned;  that  there  are  no  offsets  to  the 
same,  and  that  the  facts  stated  in  the  above  confession  and  state- 
ment are  true.  That  said  confession  is  not  made  to  defraud  any 
creditor  of  the  defendant,  but  in  good  faith  for  a  bona  fide 
indebtedness. 

Richard  Roe. 

Subscribed  and  sworn  to  before  me  this  ninth  day  of  February,  iS98. 

(seal)  Norton  Porter,  Notary  Public. 

1.  Sufficiency  of  Statement  for  Goods  The  following  statements  have  been 
Sold.  —  The  requirement  of  "a  concise  held  to  be  sufficient:  That  "  the  sum  of 
statement  of  the  facts  out  of  which  the  %50o,  being  the  amount  of  a  bill  of 
debt  arose"  could  never  have  been  in-  goods  this  day  purchased  of  him  the 
tended  to  call  for  as  much  as  a  bill  of  said  plaintiff  by  him  the  said  defend- 
particulars.  Bryan  v.  Miller,  28  Mo.  ant."  Hoppock  v.  Donaldson,  12  How. 
35;  Schoolcraft  v.  Thompson,  9  How.  Pr.  (N.  Y.  Supreme  Ct.)  141. 
Pr.  ( N.  Y.  Supreme  Ct.)  61.  The  That  the  judgment  debtor  "had 
specification  as  to  when  the  indebted-  obtained"  groceries,  provisions,  money, 
ness  arose  may  be  indefinite,  but  a  state-  etc.,  to  an  amount  stated,  specifying  in 
ment  otherwise  sufficient  will  not  be  a  general  way  the  time  when  the  in- 
invalidated  for  this  reason  alone.  Har-  debtedness  arose.  Harrison  v.  Gib- 
rison  v.   Gibbons,  71   N.  Y.  62.      Nor  bons,  71  N.  Y.  62. 

need   the   statement   aver    in    express  That     the      indebtedness     was     for 

terms  to  whom  or  by  whom  the  goods  "sundry  articles    of    dry  goods"  and 

were  sold,  where  the  words  used  plainly  "a  bill  of  groceries,"  without  further 

imply  these  facts.     Read  v.  French,  28  detail  as  to  the  consideration   of   the 

N.  Y.  293.     But  a  reasonably  specific  indebtedness.      Daniels   v.    Claflin,   15 

bill  of  goods  showing  the  dates  of  sale  Iowa  152. 

should  be  given.     Mechanics  Bank  f.  That  the  indebtedness  was  for  "grain 

Mayer,  93  Mo.  421.  purchased  of  the  said  plaintiff,   W.  H. 

60  Volume  5. 


6031. 


CONFESSION  OF  JUDGMENT. 


6031. 


ee.  For  Money  Loaned. 
Form  No.  6031.' 

Supreme  Qonxt,  Albany  Qo\xciX.y . 

John  Doe,  plaintiff, 

against 

JiifAarcf /^oe,  defendant. 

\,  Richard  Roe,  the  defendant  above  named,  do  hereby  confess  judg- 
ment in  favor  oi  John  Doe,  plaintiff  above  named,  for  one  /housand  dol- 
lars and  authorize  judgment  to  be  taken  against  me  for  that  sum  with 
costs.  This  confession  of  judgment  is  for  a  debt  justly  {fo  become) 
due  from  me  to  the  above  plaintiff,  said  indebtedness  arising  upon  the 
following  facts,  to  wit:*  between  the^rj/  day  of  March,  iS93,  and  the 
_first  day  of  October,  i895,  the  plaintiff  loaned  and  advanced  me  divers 
and  sundry  sums  of  money  which  I  agreed  to  repay  him  with  inter- 
est, and  also  did  and  performed  work,  labor  and  service  in  selling 
merchandise  upon  commission  and  guaranteeing  the  amounts  for  the 
same,  and  on  the  ^rst  day  of  October,  iS95,  there  was  an  adjustment 
of  the  accounts  between  said  plaintiff  and  defendant  concerning  the 
said  matters  and  the  sum  of  one  thousand  dollars  was  found  due  to 
the  former,  which  the  latter  agreed  to  pay  with  interest. ^ 

Richard  Roe,  defendant. 


Healy,  by  the  said  Othniel  Preston, 
on  or  about  the  ist  day  of  April,  iSjd." 
Healy  -■.  Preston,  14  How.  Pr.  (N.  Y. 
Supreme  Ct.)  21. 

That  the  indebtedness  arose  for 
"goods  sold  and  delivered"  without 
stating  the  time  of  sale,  quantity,  price 
and  value  of  the  goods.  Merchants 
Nat.  Bank  v.  Newton  Cotton  Mills, 
115  N.  Car.  507. 

1,  New  York.  —  Code  Civ.  Proc,  § 
1274  (Birds.  Rev.  Stat.  (1896),  p.  1738. 
§  73).  See  also  list  of  statutes  cited 
supra,  note  2,  p.  4S. 

Another  form  of  statement  of  confession 
of  judgment  for  money  loaned  maybe 
as  follows:  {Commencing  as  in  form  No. 
60J/,  and  continuing  to*)  "i.  On  the 
ninth  day  of  February,  1897,  at  the  city 
of  Albany,  in  the  state  of  Ne7u  York, 
the  said  plaintiff  loaned  to  me  the  sum 
of  %i,ooo,  payable  on  demand  with  in- 
terest. 2.  On  the  fifth  day  oijuly, 
1897,  *t  the  city  of  Albany,  in  the  state 
of  New  York,  the  said  plaintiff  loaned 
to  me  the  sum  of  %soo  on  the  same 
terms.  3.  On  \.\i^  first  day  of  September, 
1897,  I  paid  to  the  said  plaintiff  the  sum 
of  $500  on  account."  (Signed,  dated  and 
verified  as  in  Form  No.  60JI.) 

For  Money  Loaned,  Not  Yet  Dae.  — 
(Commencing  as  in  Form  N'o.  60^1,  and 
continuing  down  to*)  "  i.  On  the  ninth 
day  of  February,  \ig8,  at  the  city  of 
Albany,  in  the  state  of  New   York,  the 


said  plaintiff  loaned  to  me  the  sum  of 
%i,ooo.  2.  I  promised  to  repay  the 
same  on  the  first  day  oi  July,  i8gS." 
{Signed,  dated  and  verified  as  in  Form 
No.  60JI.) 

2.  The  statement  in  this  confession  is  in 
substance  that  reported  in  the  case  of 
Critten  v.  Vredenburgh,  4  N.  Y.  App. 
Div.  216.  The  statement  in  that  case, 
besides  the  general  averment  as  to 
money  loaned  and  labor  and  services 
performed  by  the  plaintiffs  for  the  de- 
fendants, alleged  facts  showing  an  ac- 
count stated.  The  court  held  that  the 
statement  therefore  had  as  much  force 
as  if  it  had  averred  an  adjustment  of 
accounts  on  October  i,  1895,  and  the 
giving  of  a  note  by  the  defendants  to 
the  plaintiffs,  and  was  therefore  suffi- 
cient. This  view  of  the  case  is  sup- 
ported by  Freligh  v.  Brink,  22  N.  Y. 
418;  Ely  V.  Cooke,  28  N.  Y.  365.  And 
these  cases  are  cited  with  approval  by 
Andrews,  J.,  in  Harrison  v.  Gibbons, 
71  N.  Y.  62.  The  case  of  Wood  v. 
Mitchell,  117  N.  Y.  439,  was  considered 
by  the  court  and  said  not  to  be  in  con- 
flict with  the  above  decisions.  Compare 
also  the  confession  of  judgment  dis- 
cussed in  Healy  v.  Preston,  14  How. 
Pr.  (N.  Y.  Supreme  Ct.)  21. 

Sufficiency  of  Statement  for  Money 
Loaned.  —  The  following  statements 
have  been  held  to  be  sufficient: 

A  statement  which  alleges  that  the 
61  Volume  5. 


6031.  CONFESSION  OF  JUDGMENT.  6031. 

Albany  County,  ss. 

Richard  Hoe,  being  duly  sworn,  says  that  he  is  the  defendant  who 
has  made  the  above  confession  of  judgment,  and  that  all  the  matters 
of  fact  mentioned  and  stated  therein  are  true. 

Richard  Rod 

Sworn  before  me  this  twelfth  day  ol  January,  i896. 

,         ^  ''  Norton  Pomeroy, 

\^^^^)  ^  Notary  Public,  New  York  County. 

Supreme  Court,  Albany  County. 

John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

Costs  allowed  by  Code  Civ.  Proc,  §  1275 %15  00 

Affidavits $ 

Entering  judgment » $ 

Transcript  and  filing % 

Postage $ 

Sheriff's  fees  on  execution  served,  etc $ 

Satisfaction,  etc $ 

Total $ 

Albany  County,  ss. 

Oliver  Ellsworth,  being  duly  sworn,  says  that  he  is  one  of  the  attor- 
neys of  the  plaintiff  in  the  above  named  cause,  and  that  the  disburse- 
ments above  mentioned  have  been  made  herein  or  will  be  necessarily 
made  or  incurred  herein,  as  he  verily  believes. 

Sworn  to  before  me  this  twelfth  day  ol  January,  i895. 

f         ,.  Norton  Porter, 

^^^^)  Notary  Public,  New  York  County. 


moneys  were  loaned  and  advanced  in  began  business  as  a  producer  of  milk 
various  and  divers  sums  between  two  and  farmer  the  plaintiff  furnished  me 
dates,  which  are  specified,  no  uncer-  with  cows,  horses,  wagons,  and  other 
tainty  existing  as  to  the  aggregate  articles  and  utensils  required  in  the 
amount  of  the  loans,  which  is  stated,  or  business,  and  hired  a  farm  for  me,  pay- 
as  to  how  much  of  the  amount  is  inter-  ing  the  rent  therefor,  and  has  since 
est  and  how  much  is  principal.  Wood  that  time  advanced  me  moneys  to  en- 
V.  Mitchell,  117  N.  Y.  439.  able  me  to  conduct  said  business  and  to 

A   statement   that  in  certain  years,  support  my  family,  down  to  the  present 

naming  them,  the  plaintiff  advanced  to  time,  which  said  money   so   advanced, 

the  defendant,  at  his  request,  a  certain  and    the   horses,    cattle,    wagons   and 

sum,  naming  it,  which  the  defendant  utensils  furnished  as   aforesaid,    were 

promised  to  pay,  and  has  not  paid  in  worth  upwards    of  eight  thousand  dol- 

whole  or  in  part,  and  that  such  sum  is  lars."     Weil  v.   Hill,    71    Hun  (N.    Y.) 

due  and  owing  by  the  defendant  to  the  135. 

plaintiff,  and   that  the  money  loaned,  A  statement,   in    Iowa,    reciting  that 

without  interest,  amounts  to  a  certain  the  indebtedness  is  money  borrowed  of 

sum,  naming  it.     Miller  v.  Kosch,  74  plaintiff   by  defendant,    which    is   evi- 

Hun  (N.  Y.)  52,  supported  by  Freligh  denced  by  a  promissory  note,    set  out 

V.   Brink,  22    N.    Y.  418;    Harrison  v.  in  the  statement.     Marvin  v.    Tarbell, 

Gibbons,  71  N.  Y.  58,  and  not  in  con-  12    Iowa   94;  Vanfleet  v.    Phillips,     11 

fiict  with  Wood  v.  Mitchell,  117  N.  Y.  Iowa  558.     And  to  the  same  effect,  sub- 

439.  stantially,   Kendig  v.  Marble,  58   Iowa 

A   statement   "That  at  the   time  I  530;  Miller  z^.  Clarke,  37  Iowa  325. 

62  Volume  5. 


6032.  CONFESSION  OF  JUDGMENT.  6032. 

//.  For  Purchase  Money  of  Realty. 

Form  No.  6032.' 

State  of  North  Dakota,  )  In  District  Court,. 

County  of  Barnes.  \     '    Fifth  Judicial  District. 

John  Doe,  plaintiff,      )  /-     r      •         r  t   ^ 

ai  St  f  Confession  of  Judgment  — 

I  St3.tGrncnt 
Richard  Roe,  defendant.  ) 

I,  Richard  Roe,  defendant  in  the  above  entitled  action,  do  hereby 
confess  judgment  therein  in  idiwor  oi  John  Doe,  the  plaintiff  in  said 
action,  for  the  sum  of  Jive  hundred  dollars,  and  authorize  judgment 
to  be  entered  therefor  against  me  with  legal  interest  thereon  from 
this  date. 

This  confession  of  judgment  is  for  a  debt  justly  due  and  owing  to 
the  said  plaintiff  and  for  costs  herein  arising  upon  the  following 
facts,  to  wit:  On  the  first  day  of  February,  iS97,  the  said  plaintiff 
sold  and  conveyed  unto  the  said  defendant  at  Valley  City  in  Barnes 
county,  state  oi  North  Dakota,  certain  real  estate,  to  wit:  Lot  5  in 
block  3  of  Nomaiis  addition  to  the  town  of  Valley  City  in  said  county 
and  state,  for  which  said  real  estate  the  said  defendant  promised  to 
pay  the  sum  of  five  hundred  dollars  to  the  said  defendant.  Neither 
the  whole  nor  any  part  of  said  sum  has  been  paid  to  the  said  plain- 
tiff, but  is  now  justly  due  and  owing  from  said  defendant  to  said 
plaintiff.^ 

Richard  Roe. 
State  of  North  Dakota,  \ 
County  of  Barnes.  \ 

Richard  Roe,  being  duly  sworn,  says  that  he  is  the  person  who 
signed  the  above  statement  and  that  he  is  indebted  to  John  Doe  in 
the  sum  oi  five  hundred  do\\a.rs,  in  said  statement  mentioned;  and  the 
facts  stated  in  the  above  confession  and  statement  are.  true. 

Richard  Roe. 


1.  North  Dakota.  —  Codes  (1895),  §  conveyed  by  deed,  dated  September  11, 
6131.  See  also  list  of  statutes  cited  187/,  and  said  indebtedness  arose  out 
supra,  note  2,  p.  48.  of  the  sale  of  said  farm,  and  this  con- 

2.  Snfflciency  of  Statement  for  Fnrohase  fession  of  judgment  is  for  the  whole 
Money  for  Eeal  Estate. —  In  Thorp  v.  amount  due  to  said  Thorp  on  said 
Piatt,  34  Iowa  315,  in  an  action  be-  farm.  If  this  judgment  is  paid  within 
tween  the  immediate  parties  to  a  judg-  thirty  days,  the  plaintifT  herein  hereby 
ment,  the  following  statement  was  authorizes  the  clerk  of  said  court  to 
held  sufficient:  discount   the   same   ten   per  cent,  and 

"  I,  y.  N.  /'/a//,  hereby  confess  judg-  cancel  the  same  of  record,  defendant 

ment   in    favor   of   Milton    Thorp,    the  to  have   thirty  days'  stay  without  se- 

plaintiff   herein,   for  the  sum  of  %foo,  curity;  and   that   there   is   now   justly 

and  authorize  the  clerk  of   said  court  due  the  plaintiff  the  sum   first  above 

to  enter  judgment  against  me  for  said  named." 

sum,  with    costs.     This   confession   of  The  court  was  not  required  to  pass 

judgment  is  for  the  sum  agreed  upon  upon  its  sufficiency  as  between  a  party 

between   the   parties  hereto,   in  settle-  to  a  judgment  and  a  third  party,  but 

ment  of  the  contract  price  of  the  farm  infers  that  in  such  case  it  would  not 

sold   by  said    Thorp  to  said  Piatt,  and  have  been  sufficient. 

68  Volume  5. 


6033.  CONFESSION  OF  JUDGMENT.  6033. 

Subscribed  and  sworn  to  before  me  this  ninth  day  of  February^ 
A.  D  i2>98. 

(seal)  Norton  Porter,  Notary  Public. 

(fudge's  order  for  judgment. y- 

Form  No.  6033.' 

(Precedent  in  Weinges  v.  Cash,  15  S.  Car.  47.) 

The  State  of  South  Carolina, )  >-,       4.    x  r-  rn 

r-       4.      c  r-i.    4    £  ij  \  Court  of  Common  Fleas. 

County  of  Chesterjield.  )  -^ 

Allen  E.  Cash     ) 

Robert  E.  Ellerbe.  ) 

I  hereby  confess  myself  to  be  indebted  to  Allen  E.  Cash,  the  plain- 
tiff, in  the  sum  oi  fifteen  thousand doWaxs,  and  consent  to  and  authorize 
the  entry  of  judgment  therefor.  The  said  judgment  arises  from  the 
fact  that  I  am  indebted  to  her  on  account  of  the  purchase  and  rental 
by  me  of  lands  to  which  she  was  entitled  to  an  interest  as  an  heir  of 
her  father's  estate,  and  also  to  the  interest  of  her  mother  therein, 
which  she  has  transferred  to  the  plaintiff  and  directed  me  to  pay  to 
her,  the  same  not  exceeding  the  amount  aforesaid,  and  the  said 
amount  is  now  justly  due  to  the  plaintiff. ^ 

27th  January,  i879.  F.  G.  Ellerbe. 

[The  State  of  South  Carolina, ) 
County  of  Chesterfield.  ) 

The  defendant  above  named,  being  duly  sworn,  says  that  the  above 

1.  Order    of    Judge    or    Court.  —  The  disbursements,  amounting  in  the  whole 

statement    must    be    presented    to    the  to  the  sum  of  five  hundred  and  ten  dol- 

district  court  or  a  judge  thereof,  and  if  lars. 

the  same  is  found  sufficient  the  court  Let  judgment  be  entered  accordingly, 

or   judge    shall    make    an    order    that  Dated    this    nhith   day    of  February, 

judgment    be    entered    by    the    clerk.  A.  D.  \%g8. 

N.    Dak.    Rev.    Codes    (1895),    §   6132;  By  the  court. 

Wash.  Stat.  (1897),  §  5099.     Such  order  John  Marshall,  Judge." 

may  be  as  follows:  Or    indorsed    upon    the    confession, 

"  In   District  Court,   Fifth  Judicial  thus: 

District.  '^'' Richard  Roe 

State  of  North  Dakota,  )  to 

County  of  Barnes.          \      '  John  Doe. 

John  Doe,  plaintiff,       \  Order      for  The  within  confession  of  judgment 

against                  >  Judgment  on  having    this    ninth    day   of   February, 

Richard  Roe,  defendant.  )  Confession.  xiqS,  been  presented  to  me,  and  having 

The  written   statement  and   confes-  been  found  sufficient,  let  judgment  be 

sion   of   judgment   of    the    defendant,  entered  as  per  statute  provided. 

herein  duly  verified  by  his  own  signa-  Carroll  Johnson,  District  Judge." 

ture  and  oath,  having  been  presented  2.  South  Carolina.  —  Code  Civ.  Proc. 

to   the    court    and    the    court    having  (1893),  §  384.     See  also  list  of  statutes 

found  the  same  sufficient:  cited  supra,  note  2,  p.  48. 

It  is  now,  on  motion  of  Oliver  Ells-  3.  This  confession  was  for  an  amount 

7vorth,  attorney  for  said  plaintiff,   or-  less  than   that  which  was  actually  due, 

dered,    that   plaintiff    have    judgment  and    was   held  to  contain    a   sufficient 

against  the  ^&i&nA&.n\.  Richard  Roe  for  statement    to    comply   with     statutory 

the   sum    of  five  hundred  dollars,   to-  requirements, 
gether  with  ten  dollars  for  costs  and 

64  Volume  5. 


6034.  CONFESSION  OF  JUDGMENT.  6034. 

statement  and  confession  of  judgment  and  the  facts  therein  mentioned 
are  true  to  his  knowledge,  and  further  he  says  not. 

R.  G.  Ellerbe. 
Sworn  to  before  me  this^7M  day  oi  January^  iS79. 

Norton  Porter^  Notary  Public,  Chesterfield  County, 
South  Carolina.^ 

gg.  For  Services  Rendered. 

Form  No.  6034.* 

State  of  Minnesota,     \  District  Court, 

County  of  Hennepin.  \     '    Fourth  Judicial  District. 

Sampson  A.  Heed,  Plaintiff, 

against 
Maria  B.  Nell,  Defendant. 

I,  Maria  B.  Nell,  above  named,  do  hereby  confess  judgment  in 
favor  of  Sampson  A.  Reed,  above  named,  for  the  sum  of  five  hundred 
dollars,  and  hereby  authorize  the  clerk  of  the  District  Court  in  and 
for  the  county  of  Hennepin  and  state  of  Mintiesota,  to  enter  judgment 
therefor  against  me,  said  Maria  B.  Nell,  and  in  favor  of  said  Sampson 
A.  Reed. 

This  confession  of  judgment  is  for  money  justly  due  to  the  said  Samp- 
son A.  Reed,  arising  from  the  following  facts,  viz. :  The  said  indebt- 
edness is  due  from  the  said  Nell  to  said  Reed  on  account  of  services 
and  money  paid  out  by  Seagraves  Smith  and  said  Reed,  late  copartners 
as  Smith  and  Reed,  and  performed  at  my  special  instance  and  request 
between  the  first  day  of  October,  iSS7,  and  the  first  day  of  March, 
iS89,  and  that  said  amount  has  not  been  paid,  but  is  now  all  justly 
due  and  owing;  that  the  said  Smith  and  Reed,  for  a  valuable  consider- 
ation to  them  paid  prior  to  confession  of  this  judgment,  sold,  assigned 
and  set  over  to  the  said  Reed? 

Maria  B.  Nell,  Defendant. 

1.  This  affidavit  is  inserted  instead  of  due  from  me  to  the  above  plaintiff, 
the  one  found  in  the  precedent,  as  being  Aaron  J.  Kellogg,  on  or  about  the  i^th 
better  and  more  in  conformity  with  the  day  of  December,  1859;  and  the  follow- 
usual  practice.  The  aflSdavit  in  the  ingare  the  facts  upon  which  said  indebt- 
reported  case  appended  to  the  state-  edness  arises:  The  plaintiff  had  been  in 
ment  of  R.  G.  Ellerbe  shows  that  he  the  employ  of  the  defendant  for  several 
swore  "  that  the  above  statement  is  true;  years,  upon  a  salary;  from  year  to  year 
that  he  justly  owes  the  plaintiff  the  defendant  has  settled  with  plaintiff,  al- 
amount  stated  above  on  account  of  the  lowing  him  interest  upon  such  amount 
facts  stated."  or  amounts  as  remained  unpaid.    That 

2.  Minnesota.  —  Stat.  (1894),  §  6077.  on  the  i^th  Aa.y  ol  December,  iS//,  the 
See  also  list  of  statutes  cited  supra,  plaintiff  and  defendant  settled,  and 
note  2,  p.  48.  there   was    then   due   to   the   plaintiff 

3.  This  statement  is  based  uf>on  the  %4,300,  for  which  sum  defendant  then 
facts  in  Atwater  v.  Manchester  Sav.  gave  his  note,  payable  in  two  years. 
Bank,  45  Minn.  350.  The  statement  in  with  interest;  that  the  amount  of  said 
that  case  was  held  to  be  good  even  as  note,  with  interest,  on  the  i^th  day  of 
against  subsequent  creditors.  December,   i8jg,    will    be    the    sum   of 

In  Kellogg  t'.  Cowing,  33  N.  Y.  408,  the  $4,go2;  and   no   payments   have   been 

confession,  omitting  the  formal  parts,  made  on  the  said  note,  or  the  interest 

was  as  follows:     "This  confession  of  thereon." 
judgment  is  for  a  debt  justly  to  become 

5  E.  of  F.  P.  —  5.  65  Volume  5. 


6035.  CONFESSION  OF  JUDGMENT.  6035. 

State  oi  Minnesota,     ) 
County  oi  Hennepin.  X 

Maria  B.  Nell,  being  duly  sworn,  says  that  she  is  the  defendant 
above  named,  and  that  the  matters  of  fact  set  forth  in  the  within 
statement  and  confession  are  true. 

Maria  B.  Nell. 

Subscribed  and  sworn  to  before  me  this  fourteenth  day  of  December, 
A.  D.  \%89.  Calvin  Clark,  Clerk  of  District  Court. 

State  of  Minnesota,    )  District  Court, 

County  oi  Nenfiepin.)      '    Fourth  ]w6.\c\a\  D'lstnct. 
Sampson  A.  Feed,  plaintiff,  ^ 
against  >■ 

Maria  B.  Nell.  ) 

Costs  allowed  by  statute %5  00 

Clerk's  fees $ 

Affidavits $ 

Postage $ 

Docketing $ 

Total $ 

State  of  Minnesota,    ) 
County  of  Hennepin,  j 

Oliver  Ellsworth,  being  duly  sworn,  says  he  is  the  attorney  for  the 
plaintiff  above  named;  that  the  disbursements  above  mentioned 
have  been  made  or  will  be  necessarily  paid  or  incurred  therein. 

Oliver  Ellsworth. 

Subscribed  and  sworn  to  before  me  this,  fourteenth  ddiy  oi  December^ 
iB89.  Calvin  Clark,  Clerk  of  the  District  Court. 

Form  No.  6035." 

State  of  South  Dakota,  )  t     ^-       -^  /-< 
County  of  Hughes.         \  ^"  ^'''''''^  ^°"^*- 

John  Doe,  plaintiff,      ^ 

against  V  Statement  and  Confession  of  Judgment. 

Richard  Roe,  defendant.  ) 

I,  the  subscriber  hereto,  do  hereby  confess  judgment  in  favor  of 
John  Doe  for  the  sum  oi  five  hundred  doW^Lrs,  and  authorize  judgment 
to  be  entered  against  me  for  that  sum,  besides  costs. 

This  confession  of  judgment  is  for  a  debt  at  this  time  justly  due  to 
said  John  Doe,  and  the  following  is  a  statement  of  the  facts  upon 
which  said  confession  of  judgment  is  founded: 

On  the  frst  day  of  February,  iS97,  at  Pierre  in  the  county  of 
Hughes,  state  of  South  Dakota,  I  hired  and  retained  the  said  John  Doe, 
who  now  is  and  then  was  an  attorney  at  law  licensed  and  regularly 
practicing  in  all  the  courts  within  said  county,  to  defend  me  in  a 
certain  prosecution  pending  in  the   Circuit  Court  of   said    county, 

1.  South  Dakota.  —  Dak.  Comp.  Laws  (1883),  §§  5538,  5539.  See  also  list  of 
statutes  cited  supra,  note  2,  p.  48. 

66  Volume  5. 


6036.  CONFESSION  OF  JUDGMENT.  6036. 

wherein  the  State  of  South  Dakota  was  plaintiff  and  myself  defendant, 
which  said  prosecution  was  for  murder^  and  during  the  May  Term  of 
the  Circuit  Court  of  said  county  the  said  John  Doe  did  defend  me  in 
said  prosecution,  and  as  a  result  of  his  professional  services  so  ren- 
dered I  was  regularly  acquitted  of  said  charge,  as  appears  from  the 
records  and  the  entry  of  the  verdict  in  said  cause  appearing  in  the 
office  of  the  clerk  of  the  Circuit  Court  of  said  county.  Said  profes- 
sional services  of  said  John  Doe  were  reasonably  worth  the  sum  of 
jive  hundred  dollars,  which  said  sum  has  never  been  paid  by  me  to- 
the  said  John  Doe  for  his  said  services,  but  is  now  justly  due  and 
owing  to  him. 
State  of  South  Dakota,  \ 
County  of  Hughes.         \ 

Richard  Roe,  being  duly  sworn,  says  that  he  is  the  defendant  above 
named,  and  that  the  matter  of  fact  set  forth  in  the  within  statement 
and  confession  are  true. 

Richard  Roe. 

Subscribed  and  sworn  to  before  me  this  ninth  day  of  February^ 
i898.  Calvin  Clark,  Clerk  of  Circuit  Court. 

{Indorsement  of  judge's  order. y- 

hh.  To  Secure  against  Contingent  Liabiuty. 

Form  No.  6036.' 

In  the  Circuit  Court  for  the  State  of  Oregon,  for  the  County  ol 
Benton. 

Thomas  M.  Reed,  plaintiff, 

against 

Jacob  Allen,  defendant. 

I,  Jacob  Allen,  the  defendant  above  named,  do  hereby  confess 
judgment  in  favor  of  *  Thomas  M.  Reed,  the  plaintiff  above  named, 
for  the  sum  of  two  thousand  eight  hundred  dollars  in  gold  coin  oj  the 
United  States,  and  authorize  judgment  to  be  rendered  against  me 
therefor,  and  in  favor  of  said  plaintiff  for  the  said  sum  of  two 
thousand  eight  hundred  dollars  in  gold  coin  as  aforesaid. 

This  confession  of  judgment  is  made  for  the  purpose  of  securing; 

1.  Order  of  jndge  indorsed  upon  the  No.  6oj6,  and  continuing  down  to  *) 
confession  should  be  as  follows:  "Thomas  M.  Reed,  for  the  sum  of  tw<y 

"  Order  of  Judge.  thousand  eight  hundred dioW&xs,  to  secure 
On  filing  the  within    statement  and  him  against  any  liability  for  the  follow- 
confession  it  is  ordered   that  judgment  ing   cause:    On    the   nineteenth   day  of 
be  entered  by  the  clerk  of  this  court  in  January,  186/,   at  Corvallis,  in  Benton 
accordance  therewith.  county,   Oregon,  the   said   plaintiff   in- 
Dated    the   ninth    day   of   February,  dorsed  for  my  accommodation  a  certain 
'i^gS.  promissory  note  made  by  me.  dated  the 
Carroll  Johnson,  Circuit  Judge,  nineteenth  day  of  January,  186/,  at  Cor- 
Sixth  Judicial  Circuit."  vallis,  Benton   county,    Oregon,    to    the 

2.  Oregon. —  Hill's  Anno.  Laws  (1892),  order  of  Samuel  Short,  for  the'  sum  of 
§^  250-256.  See  also  lisj  of  statutes  tivo  thousand  eight  hundred  Ao\\a.rs,  •p&Y- 
cited  supra,  note  2,  p.  48,  able  one  year  after  date  and  delivered 

For  Liability  Incurred  aa  Aeeommoda-  the  same  to  me."  {Signed,  dated  and 
tion  Indorser.  —  {Commencing  as  in  Form     verified  as  in  Form  N^o.  6oj6.) 

67  Volume  5. 


6036.  CONFESSION  OF  JUDGMENT.  6036. 

the  said  Thomas  M.  Reed  against  any  liability  which  may  accrue  to 
him  in  consequence  of  his  having  signed  a  bond  as  security  for  me, 
bearing  date  the  seventh  day  of  November^  a.  d.  i85^  for  the  sum  of 
three  thousand  six  hundred  dollars;  said  bond  was  given  by  me  as 
guardian  of  the  infant  heirs  of  George  IV.  Stewart,  deceased,  to  wit, 
Mary  J.  Stewart,  Amanda  Stewart  and  George  W.  Stewart?- 

Dated  at  Corvallis,  in  Benton  county,  Oregon,  the  nineteenth  day  of 
January,  186I.  Jacob  Allen,  Defendant. 

State  of  Oregon,      \ 
■County  of  Benton.  ) 

I,  Jacob  Allen,  being  first  duly  sworn,  say  that  I  am  the  defendant 
named  in  the  foregoing  confession  of  judgment,  and  that  said  con- 
fession of  judgment  is  true,  as  I  verily  believe. 

Jacob  Allen. 

Subscribed  and  sworn  to  before  me  the  nineteenth  day  of  January, 
iS61.  A.  J.  Thayer,  Notary  Public. 

State  of  Oregon,      \ 
County  of  Benton,  j 

On  the  nineteenth  day  oi  January,  1S6I,  personally  appeared  before 
me,  a.  justice  of  the  peace  in  and  for  said  county  and  state,  the  within 
named  Jacob  Allen,  to  me  personally  known  to  be  the  identical 
defendant  described  in  and  who  executed  the  within  confession  of 
judgment,  and  acknowledged  to  me  that  he  executed  the  same  freely, 
and  for  the  uses  and  purposes  therein  named. 


1.  This  statement  is  based  on  the  con-  accommodation,  and  to  enable  me  to 

fession  set  out  in   Allen  v.   Norton,  6  negotiate  said  notes;  and  this  confes- 

Oregon  345.  sion  and  judgment  is  given  him  to  se- 

Safficiency  of  Statement  to  Secure  against  cure  him  against  his  liability  as  such 

Contingent   Liability.  —  The    statement  indorser,  and  for  no  other  purposes." 

Tnust  state  concisely  the  facts   consti-  Hopkins  v.  Nelson,  24  N.  Y.  518. 

tuting  such  liability  and  show  that  the  "The    said   Lanning  assuming    the 

sum  confessed   therefor   does   not  ex-  payment   of   the   sum   of  one  thousand 

ceed  the  same.  dollars  at  the  Bank  of  Havana,  on  the 

California.  —  Code  Civ.  Proc.  (1897),  14th  day  oifuly,  iSj-j-,  by  which  a  note 

§  1133.     See  also  list  of  statutes  cited  of  one  thousand  dollars,  made  by  me, 

supra,  note  2,  p.  48.  payable  to  the  order  of  Samuel  Carpen- 

The  following  statements  have  been  ter  at  the  said  Havana  Bank,  dated  on 

iield  to  be  sufficient:  31st  day  of  May,  1855,  and  indorsed  by 

A   statement   describing    the    notes,  the   said  Samuel  Carpenter  and   D.  f. 

-naming  the  respective  amounts,  dates  Sunderlin,    was   paid   and   taken    up." 

and  place  of  demand,  without  stating  Lanning  v.   Carpenter,  20  N.   Y.   448, 

the  consideration  or  that  the  notes  had  affirming  23  Barb.  (N.  Y.)  402. 

been  discounted,  where  such  facts  were  But  in  Minnesota  a  statement  to  the 

plainly  inferable.     Marks  z/.  Reynolds,  effect  that  "  this  confession  is  for  $700 

12  Abb.  Pr.  (N.  Y.  Supreme  Ct.)403.  for  a  liability  incurred  by  plaintiff  for 

"  For   the   purpose   of   securing   the  indorsing  a  bond  for  defendant,  which 

plaintiff   against   his    liability   arising  bond  is  for  that  amount,"  was  held  to 

from    the   facts  hereinafter  set   forth,  be   insufficient.     Kern   v.    Chalfant,    7 

and   does   not   exceed   the   amount  of  Minn.  487. 

«uch  liability.     Said  plaintiff  has  this  "  In  an  action  pending "  the  statement 

day   indorsed    my   notes,    payable    at  mentioned  in  section  252  of  the  Oregon 

t)ank,  for  %b,ooo  in  all;  which  indorse-  code  is  not  required.     Miller  z/.  Oregon 

mentsare  made  by  said  plaintiff  for  my  City  Paper  Mfg.  Co.,  3  Oregon  26. 

08  Volume  5. 


6037.  CONFESSION  OF  JUDGMENT.  603 ?• 

Witness  my  hand  (and seal)  the  day  and  year  in  this  certificate 
first  above  written. 

Abraham  Kent,  Justice  of  the  Peace}- 
State  of  Oregon,      \ 
County  of  Benton.  \ 

I,  Thomas  M.  Reed,  the  plaintiff  named  in  the  foregoing  confession 
of  judgment,  do  hereby  assent  to  the  rendition  of  judgment  in  my 
favor  and  against  the  defendant  Jacob  Allen,  therein  named,  for  the 
sum  of  two  thousand  eight  hundred  dollars  in  United  States  gold  coin^ 
according  to  the  terms  of  said  confession  of  judgment. 

Thomas  M.  Reed^  plaintiff. 
State  of  Oregon,       \ 
County  of  Benton.   \ 

On  the  nineteenth  day  oi  January,  186I,  personally  appeared  before 
me,  Abraham  Kent,  d^  justice  of  the  peace  in  and  for  said  county  and 
state,  the  above  named  plaintiff  Thomas  M.  Reed,  to  me  personally 
known  to  be  the  identical  person  described  in  and  who  executed  the 
above  assent  to  rendition  of  judgment  upon  confession,  and  acknowl- 
edged to  me  that  he  executed  the  same  freely,  and  for  the  uses  and 
purposes  therein  named. 

Witness  my  hand  (and  seal^  the  day  and  year  in  this  certificate 
first  above  written. 

Abraham  Kenty  Justice  of  the  Peace?- 

(Indorsement  of  judgment^ 


a.  For  Balance  Due  on  Judgments. 

Form  No.  6037.* 
(Precedent  in  Union  Bank  v.  Bush,  36  N.  Y.  631.) 

[Supreme  Court,  Sullivan  County. 
Nathan  S.  Hammond,  President  of  the  Union  Bank  ^ 
of  Sullivan  County,  plaintiff, 

against  I 

Abial  P.  Bush,  Luther  Bush  and  Obediah  H.  Bush,   \ 
composing  the  firm  of  A.  P.  Bush  df  Company,  de- 
fendants. 

We,  Abial  P.  Bush,  Luther  Bush  and  Obediah  H^ Bush,  composing 
the  firm  of  A.  P.  Bush  &'  Company,  of  the  county  of  Sullivan  and 

1.  This  acknowledgment  is  not  neces-  dred  dollars,  it  is  therefore  adjudged 
sary  when  the  parties  appear  before  the  that  the  said  ^<'^d' have  and  recover  of 
clerk  in  person.  Hill's  Anno.  Laws  said  Allen  the  sum  of  two  thousand 
Oregon  (1892),  ^  253.  ^ght  hundred  dollars,  and  five  dollars 

2.  Jadgment    was   indorsed   upon   the  costs,  this   nineteenth   day  oi  January, 
statement  in  Allen  v.  Norton,  6  Oregon  186/.  E.  L.  Perham,  Clerk." 
345,  as    follows:    ''Thomas  M.  Reed  \.         8.  New    York. — Code   Civ.   Proc,  § 
/acoh  Allen.      Confession  of  judgment.  1274  (Birds.   Rev.  Stat.  (1896),  p.  1738, 
The  said  Jacob  Allen  having  confessed  §  73).     See  also  list  of  statutes  cited  jm— 
judgment  in  favor  of  Thomas  M.  Reed  pra,  note  2,  p.  48. 

for  the  sum  of  two  thousand  eight  hun- 

69  Volume  5. 


6038.  CONFESSION  OF  JUDGMENT.  6038. 

state  of  New  York,  defendants  above  named,] ^  do  hereby  confess 
judgment  in  this  cause,  in  favor  of  the  above  named  plaintiff,  Nathan 
S.  Hatnmond,  President  of  the  Union  Bank  \of  Sullivan  Counlj],^  for 
the  sum  of  six  thousand  two  hundred  doWdiVS,  and  authorize  judgment 
to  be  entered  therefor  against  us.  This  confession  of  judgment  is 
for  a  debt  justly  due  to  the  plaintiff  arising  upon  the  following  facts: 
For  balance  due  upon  three  several  judgments  in  the  Supreme  Court, 
in  favor  of  plaintiff  against  these  defendants,  which  judgments  were 
docketed  [in  the  clerk's  office  of  Sullivan  County,  February  13th, 
i8o7,]^  and  were  obtained  upon  notes  discounted  by  the  Union  Bank 
of  Sullivan  County,  for  the  defendants  and  the  avails  paid  to  us  and 
also  for  money  this  day  loaned  by  the  Union  Bank  of  Sullivan  County 
to  the  defendants,  for  which,  in  addition  to  the  above  balance,  this 
judgment  is  confessed. ^ 

\Obediah  H.  Bush. 
Luther  Bush. 
Abial  F.  Bush. 
Sullivan  County,  ss. 

Abial  F.  Bush,  Luther  Bush  and  Obediah  H.  Bush,  being  first 
duly  and  severally  sworn,  each  for  himself,  says  that  he  is  one  of  the 
defendants  whose  name  is  subscribed  to  and  who  joined  in  the  above 
confession  of  judgment,  and  that  all  the  matters  of  fact  mentioned 
and  stated  therein  are  true. 

Abial  P.  Bush. 
Ltither  Bush. 
Obediah  H.  Bush. 
Sworn  before  me  by  each  of  the  affiants  this  twenty-seventh  day  of 
July,  1 857.  Calvin  Clark, 

County  Clerk  of  Sullivan  County. ]i 

(2)  In  Justice's  Court. 

Form  No.  6038.* 

John  Doe     1 

against       >• 

Richard  Roe.  ) 

State  of  Florida,  ) 

Taylor  County,     j 

I  hereby  confess  judgment  before  Abraham  Kent,  a  justice  of  the 
peace  of  the  county  of  Taylor  aforesaid,  for  the  sum  of  fifty  dollars 
and  fifty  cents  for  money  due  to  the  said  John  Doe  from  me  as  pur- 
chase money  for  a  certain  mule  by  the  said  John  Doe  to  me  sold  and 
delivered  at  Ferry,  in  said  county  and  state,  on  the  first  day  of  Janu- 

1.  The  words  and  figures  enclosed  by  Z.Florida.  —  Rev.  Stat.  (1892),  §§ 
[  ]  are  not  found  in  the  reported  case,  1609,  1623.  See  also  list  of  statutes 
but  are  inserted  to  complete  the  form.  cited  supra,  note  3,  p.  48. 

2.  This  statement  was  upheld  against  For  statutory  form  of  confession  of 
objection  thereto;  the  court  holding  judgment  in  Florida  see  Rev.  Stat, 
that  it  was  in  conformity  with  the  re-  (1892),  p.  548,  par.  15. 

quirements  of   the  New    York  statute 
under  which  it  was  drawn. 

70  Volume  5. 


6039.  CONFESSION  OF  JUDGMENT.  6040. 

ary,  iS98,  which  said  purchase  money,  the  amount  of  which  is  above 
mentioned,  has  never  been  paid  by  me  to  the  said  /oAn  Doe,  but  is 
now  justly  due  and  owing  to  him;  and  the  said  justice  is  hereby  au- 
thorized to  enter  a  judgment  against  me  in  favor  of  the  said  John  Doe 
for  said  sum  with  costs. 

Dated  the  second  ddiy  of  February,  i2>98. 

Richard  Roe. 

Witness :  Abraham  Kent,  Justice  of  the  Peace. 

(^Annex  indorsement  of  iustice' s  judgment. y- 

Form  No.  6039.' 
John  Doe 

against 
Richard  Roe. 
State  of  Indiana,  \ 
Posey  County.       \     ' 

Judgment  to  be  confessed  before  Abraham  Kent,  justice  of  the 
peace  oi  Mt.  VernontO'^w^MxT^,  Posey  coysnty ,  ior  ninety -two  dioWzx^  and 
sixty  cents,  and  the  said  Richard  Roe  swears  that  he  owes  the  above 
mentioned  debt  of  ninety-two  dollars  and  sixty  cents,  and  that  he  does 
not  confess  judgment  therefor  to  defraud  his  creditors. ^ 

Richard  Roe. 

Sworn  and  subscribed  before  me,  the  undersigned,  a  justice  of  the 
peace  of  said  township  and  county,  the /^^M  day  oi  December,  iS97. 

Abraham  Kent,  Justice  of  the  Peace. 


John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant 


Form  No.  6040.'' 

In  the  Justice's  Court,  before  Abraham  Kent, 
Justice  of  the  Peace  in  and  for  Logan 
Township,  Harrison  County.  Confession 
of  Judgment. 

I,  Richard  Roe,  of  Logan  in  Harrison  county,  in  the  state  of  lowa^ 
do  hereby  confess  judgment  in  favor  oi  John  Doe,  the  plaintiff  herein, 
for  the  sum  of  eighty-seven  dollars,  and  authorize  the  said  justice  to 
enter  judgment  for  the  said  sum  against  me  with  interest  at  six  per 
cent,  per  annum  from  \hQ.  twelfth  day  oi  December,  i897,  with  costs, 
and  state  that  said  sum  of  money,  with  said  interest  and  costs,  is  justly 
due  the  plaintiff  from  me,  and  that  the  facts  out  of  which  the  said 
indebtedness  arose  are  as  follows,  to  wit:  Eighty-sei'en  dollars  for 
money  loaned  by  the  plaintiff  to  me,  the  said  defendant,  and  that  the 
amount  for  which  judgment  is  hereby  confessed  does  not  exceed 
the  amount  due  upon  said  indebtedness.* 

Dated  thxs  twelfth  day  oi  December,  a.  d.  i857. 

Richard  Roe. 

1.  For  this  judgment  see  j«/ra,  Form  ing  or  subsequent.  Campbell  z^.  Bald- 
No.  6075.  win,    6   Blackf.   (Ind.)   364;   Mavity  v. 

2,  Indiana,  —  Horner's  Stat.  (1896),  §     Eastridge,  67  Ind.  211. 

1490.     See   also   list   of   statutes   cited        4.  Iowa.  —  Code  (1896),  §  4536.     See 
supra,  note  2,  p.  48.  also  list   of  statutes  cited   supra,   note 

8.  Withontai&daTit,  judgment  by  con-    2,  p.  48. 
fession  in  a  justice's  court  is  good  as  to        5.  Sufficient   Statement.  —  Where    the 
parties  but  not  as  to  creditors,  preced-     record   showed  that   "the  defendant" 

71  Volume  5. 


6041.  CONFESSION  OF  JUDGMENT.  6042. 

State  of  Iowa,        ) 

r  SS 

Harrison  County.  [ 

Richard  Roe,  being  duly  sworn  on  oath,  states  that  he  is  the  defend- 
ant in  the  foregoing  entitled  confession  of  judgment,  and  that  he 
has  read  the  said  confession  of  judgment,  and  that  the  statements 
therein  contained  are  true  and  correct,  as  he  verily  believes. 

Richard  Roe. 

Subscribed  and  sworn  to  before  me,  a  justice  of  the  peace  in  and 
for  said  county,  by  the  soXd.  Richard  Roe,  thxs,  twelfth  day  of  December^ 
A.  D.  i2)97.  Abraham  Kent^  Justice  of  the  Peace. 


''     Iss 


Form  No.  6041.' 

State  oi  Kansas, 
County  of  Cowley. 

John  Doe,  plaintiff,       ^  In  Justice's  Court,  before  Abraham  Kent, 
against  y      Justice  of  the  Peace  of  Winfield,  in  Cow- 

Richard  Roe,  defendant.  )      ley  County,  Kansas. 

Now  corciQs  Richard  Roe  and  personally  appears  before  said  justice 
of  the  peace,  without  process  being  issued  or  served  upon  him,  and 
voluntarily  confesses  that  he  is  indebted  to  John  Doe  of  said  Wi?ifield 
for  the  sum  oi  fifty-four  dollars  for  goods,  wares  and  merchandise 
purchased  by  him  from  the  s,2i\d  John  Doe  during  the  year  i%96,  and 
that  said  indebtedness  bears  interest  at  the  rate  of  six  per  cent,  per 
annum,  and  the  said  Richard  Roe  hereby  authorizes  the  said  justice  of 
the  peace,  on  the  application  of  said  John  Doe,  plaintiff,  to  render 
judgment  against  him  for  the  sum  of  fifty-four  dollars  and  three 
dollars  interest,  said  judgment  to  bear  interest  from  date  at  the  rate 
of  six  per  cent,  per  annum  and  for  the  costs  hereof. 

Dated  X.ht first  dziy  of  November,  i897. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6042.* 

To  Abraham  Kent,  one  of  the  justices  of  the  peace  in  the  township 
of  Canton,  in  the  county  oi  Montcalm,  I  hereby  confess  judgment  on 
a  demand  arising  upon  {Here  state  the  nature  of  the  demand^,  in  favor 
of  John  Doe,  for  the  sum  of  twenty-five  dollars  and  fifty  cents  damages, 

(naming  him)  "  appeared  and  confessed  Technicality  and  form  are  neither  ra- 
the following  note "  (setting  out  the  quired  nor  expected  in  the  proceedings 
note),  "and  says  that  he  is  justly  in-  of  justices' courts.  If  the  action  and 
debted  for  the  same,"  the  confession  judgment  of  the  court  can  be  ascer- 
was  held  to  be  suflicient.  Barnett  v.  tained  clearly  from  inspection  of  the 
Juday,  38  Ind.  87.  files  and  the  docket  entries  required  by 

1.  Kansas,  —  2  Gen.  Stat.  (1897),  c.  95,  statute  to  be  made,  no    technicalities, 

§§  399-401-     See   also  list  of  statutes  imperfections  or  omissions  in  the  entry 

cited  supra,  note  2,  p.  48.  of  the  proceedings  and  judgment  will 

Z.Michigan.  —  How.      Anno.      Stat,  avail  to  reverse  or  avoid  the  judgment. 

(1882),  §  6816.     See  also  list  of  statutes  All  that  is  requisite  is  that  the  language 

cited  supra,  note  2,  p.  48.  used  shall  be  such  as  will  inform  a  per- 

For  sufficient  confession  of  judgment  in  son  of  ordinary  intelligence  and  mental 

a  justice's  court  see  Kinyon  v.  Fowler,  capacity   of    the   action   of    the    court. 

loMich.  16;  Dodge  z/.  Bird,  19  Mich.  518.  Kinyon  v.  Fowler,  10  Mich.  17. 

73  Volume  5. 


6043.  CONFESSION  OF  JUDGMENT.  6044. 

besides  costs,  and  authorize  you  to  enter  judgment  against  me  accord- 
ingly.    Dated  the  twenty-second  6.z.y  oi  December,  iS97. 

Richard  Roe.  ^ 
Signed  in  my  presence, 

Abraham  Kent,  Justice  of  the  Peace. 


\  ss. 


Form  No.  6043.* 
State  of  Minnesota, 
County  of  Goodhue. 
To  Abraham  Kent,  a  justice  of  the  peace  of  said  county: 

I  hereby  confess  judgment  in  favor  oi  John  Doe  dind  against  myself 
for  the  sum  of  seventy-five  dollars,  which  is  honestly  due  the  said  John 
Doe  from  me  at  this  date;  and  I  hereby  authorize  you  to  enter  judg- 
ment therefor  against  me.  This  confession  is  for  a  debt  now  justly 
due  from  me  to  the  said  Johti  Doe  arising  from  the  following  facts: 
That  at  Red  Wing  in  the  state  of  Minnesota,  on  the  twelfth  day  of 
September,  iS96,  the  said  John  Doe  sold  and  delivered  to  me  one  black 
horse  of  the  value  of  seventy-five  dollars,  and  which  said  sum  I  agreed 
to  pay  to  s^ixA  John  Doe  as  the  purchase  price  of  said  horse;  that  no 
part  thereof  has  been  paid,  and  that  the  whole  thereof  is  now  due. 

Dated  at  Red  Wing  this  fourteenth  day  of  November,  iS97. 

Richard  Roe. 

County  of  Goodhue,  ss. 

Richard  Roe,  being  duly  sworn,  says  that  the  facts  stated  in  the 
above  confession  are  true. 

Subscribed  and  sworn  to  before  me  this  fourteenth  day  of  Novem- 
ber, 1 897.  Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6044.' 

John  Doe,  plaintiff,  )  Before  Abraham  Kent,  Justice  of  the 
against  >•      Peace,  Lamar  Township,  Barton  County, 

Richard  Roe,  defendant.  )      Missouri. 

I,  Richard  Roe,  hereby  authorize*  Abraham  Kent,  Esq.,  justice  of 
the  peace  within  and  for  Lamar  township,  county  of  Barton,  state 
of  Missouri,  to  enter  a  judgment  on  his  docket  against  me  in  favor 
ol  John  Doe,  the  above  named  plaintiff,  in  the  sum  of  fifty  dollars, 

1.  Must  be  in  writing,  signed  by  the  Rev.  Stat.  (1889),  §  6274;  Hunter  v. 
defendant  in  the  presence  of  the  jus-  Eddy,  11  Mont.  251.  Unless  defendant 
tice.  Wilson  v.  Davis,  i  Mich.  157;  has  been  served  with  process  and  ap- 
Beach  v.  Botsford,  i  Dougl.  (Mich.)  199;  pears  in  open  court  and  confesses 
Crouse  v.  Derbyshire.  10  Mich.  479;  judgment.  Loth  v.  Faconesowich,  22 
Cox  V.  Crippen,  13  Mich.  509.  Mo.  App.  72;  Chamberlin  v.  Mammoth 

2.  Minnesota.  —  Stat.  (1894),  §§  5019-  Min.  Co.,  20  Mo.  96;  Franse  v.  Owens, 
5021.  See  also  list  of  statutes  cited  25  Mo.  334;  Davis  v.  Wood,  7  Mo.  162. 
supra,  note  2,  p.  48.  Defendant  must  personally  appear  be- 

8.  Missouri. —  Rev.    Stat.    (1889).    §  fore  the   justice   in   open    court.     Mo. 

6274.      See   also   list   of  statutes  cited  Rev.  Stat.  (1889),  §  6274. 

supra,  note  2,  p.  48.  4.  Containing  no  authority  to  enter  up 

If ust  be  in  Writing.  —  Oyster  v.  Shu-  judgment  is  not  a  confession  of   judg- 

mate,   12  Mo.  580;   Semple,  etc.,   Mfg.  ment.     Loth  v.  Faconesowich,  22  Mo. 

Co.  V.  Thomas,  10  Mo.  App.  459;    Mo.  App.  68. 

78  Volume  5. 


6045.  CONFESSION  OF  JUDGMENT.  6046. 

due  on  account  (or  by  note,  as  the  case  may  be),  which  is  now  on  file 
with  said  justice.      Dated  the  twenty-fourth  day  oi  January,  i897. 

Richard  Roe. 
Witness:  Banks  Belk,  and 

Abraham  Kent,  Justice  of  the  Peace.^ 

Form  No.  6045.* 

To  Abraham  Kent,  one  of  the  Justices  of  the  Peace  in  and  for  the 
County  of  Cheshire. 
I,  John  Doe,  do  hereby  confess  that  I  am  indebted  to  Richard  Roe 
in  the  sum  oi  fifty  dollars,  and  consent  that  record  thereof  be  made 
against  me  in  favor  of  the  said  Richard  Roe  and  execution  issue 
accordingly  (or  be  stayed  for  three  months,  or  as  the  parties  may  agree). 

John  Doe. 
Richard  Roe. 

Form  No.  6046.' 

J    in      oe,  p  ,     y  Confession   of  Judgment   before  Justice  of 

Sarah  Roe,  defendant.  ) 

To  Abraham  Kent,  Esq.,  one  of  the  Justices  of  the  Peace  of  the 
County  of  Suffolk: 
Sarah  Roe  of  Northport,  town  of  Huntington,  county  of  Suffolk^ 
state  of  New  York,  hereby  confesses  judgment  in  favor  of  John  Doe, 
the  above  named  plaintiff,  for  the  sum  oi  fifty  dollars,  besides  costs, 
and  authorizes  you,  the  said  justice  of  the  peace,  to  enter  up  judg- 
ment against  her  accordingly.  And  the  said  Sarah  Roe  states  and 
says,  that  the  indebtedness  for  which  the  said  judgment  is  hereby 
confessed  arose  upon  a  demand  upon  a  certain  contract,  to  wit:  The 
said  Sarah  Roe,  at  Northport  in  said  county  and  state,  on  the  second 
day  oi  January,  i898,  bought  of  and  purchased  from  the  said  John 
Doe  certain  goods,  to  wit,  three  hundred  ya.rds  ribbon  z.t  five  cents  per 
yard  and  seven  rolls  of  imitation  lace  trimmings  at  five  dollars  per 
roll,  making  a  total  indebtedness  of  fifty  dollars,  which  defendant 
promised  to  pay  plaintiff.  Said  goods  were  sold  and  delivered  by 
the  said  John  Doe  to  the  said  Sarah  Roe  at  the  time  and  place  afore- 
said; no  part  of  the  %^\d  fifty  dollars  has  been  by  the  said  Sarah  Roe 
paid  to  the  said  John  Doe,  but  the  whole  of  said  amount  is  now  justly 
due  and  owing  from  the  said  Sarah  Roe  to  the  sdad  John  Doe;  [and 
the  said  indebtedness  was  contracted  by  the  said  Sarah  Roe  in  the 

1.  Must  be  signed  by  defendant  or  Must  be  in  writing  and  filed  with  the 
some  person  by  him,  for  that  purpose  justice.  N.  Y.  Code  Civ.  Proc,  §§ 
authorized.  Mo.  Rev.  Stat.  (1889),  §  3010,  3011  (Birds.  Rev.  Stat.  (1896),  p. 
6274.  1803,  §  155).     And  by  the   justice    in- 

2.  New  Hampshire.  —  Pub.  Stat,  dorsed  as  follows:  "  Filed  this  ninth 
(1891),  c.  247,  §   16.  day  of  February,  iSgS.     Abraham  Kent, 

3.  Confession    by     Married   Woman —  Justice  of  the  Peace." 

New  York.  —  Code  Civ.   Proc,  §  1273        Defendant  must  personally  appear  be- 
(Birds.   Rev.  Stat.  (1895),  p.  1738,  §  72).     fore    the   justice.     N.     Y.     Code    Civ. 
In  justices' courts,  see  Code  Civ.  Proc,     Proc,  §§  3010,3011  (Birds.  Rev.  Stat. 
§§  3010,  3011  (Birds.  Rev.  Stat.  (1895),     (1896),  p.  1803,  §  155). 
P-  1803,  §§  154,  155). 

74  Volume  5. 


6047.  CONFESSION  OF  JUDGMENT.  6047. 

course  of  her  trade  or  business  of  dressmaker  and  milliner,  which 
said  business  was  at  the  time  and  year  above  mentioned  by  her  car- 
ried on  in  said  village  of  Northport  on  her  sole  and  separate 
account.]^ 

Dated  at  Northport  in  said  county  this  ninth  day  of  February,  xW8. 

Sarah  Roe?^ 

Witness:  Abraham  Kent,  Justice   of    the    Peace  of   the  Town  of 
Huntington,  in  said  county. 
[State  of  New  York,  \ 
County  of  Suffolk.     \     ' 

Sarah  Roe,  being  first  duly  sworn,  says  that  she  is  one  of  the  par- 
ties in  the  above  and  foregoing  confession  of  judgment;  that  she  is 
honestly  and  justly  indebted  to  the  said  John  Doe  in  the  sum  oi  fifty 
dollars  over  and  above  all  just  demands  which  she  has  against  the 
said  John  Doe,  and  that  the  above  and  foregoing  confession  is  not 
made  or  taken  with  intent  to  defraud  any  creditor. 

Sarah  Roe. 

Sworn  to  before  me  this  ninth  day  of  February,  i898. 

Abraham  Kent,  Justice  of  the  Peace  of  Suffolk  County,  N.  Y. 

(^Affidavit  of  John  Doe.)Y 

(^Agreement  to  stay  execution.  )* 

Form  No.  6047.* 

State  of  North  Dakota, ) 
County  of  Burleigh.  \ 
To  Abraham  Kent,  a  Justice  of  the  Peace  of  said  County: 

I   hereby  confess  judgment  in   favor  of  John   Doe  and   against 

1.  That  indebtedness  was  contracted  in  Code  Civ.  Proc,  §§  3010,  301 1  (Birds, 
course  of  married  woman's  trade  or  busi-  Rev.  Stat.  (1896),  p.  1803,  §  155). 
ness,  or  for  the  benefit  of  her  separate  In  Arizona  and  Texas,  the  plaintiflf, 
estate,  was  necessary  to  be  stated  prior  his  agent  or  attorney,  shall  make  and 
to  N.  Y.  L.  (1884),  c.  381.  Since  the  file  an  affidavit  in  writing,  signed  by 
passage  of  that  act,  however,  and  sub-  him  as  to  the  justness  of  his  claim, 
sequent  acts  (Laws  (1892),  c.  594,  Laws  Rev.  Stat.  Ariz.  (1887),  §  1444;  Tex. 
(1896),  c.  272,  §  21),  the  matter  enclosed  Rev.  Stat  (1895),  art.  1648.  See  also 
by  [  ]  does  not  seem  to  be  necessary.  Montgomery  v.  Barnett,  8  Tex.  144. 

2.  Most  be  signed  by  the  defendant*  4,  Stay  of  execution  by  agreement  is 
N.  Y.  Code  Civ.  Proc,  ^§  3010,  3011  jTrovided  for  by  N.  Y.  Code  Civ.  Proc, 
(Birds.  Rev.  Stat.  (1896),  p.  1803,  ^  155).  §  3010  (Birds.  Rev.  Stat.  (1895),  p.  1803, 

3.  Confession  for  more  than  fifty  dollars  §154).  This  agreement  may  be  evi- 
must  be  accompanied  with  the  affi-  denced  by  a  writing  as  follows,  an- 
davits  as  indicated  by  matter  within  [  ]  nexed  to  or  indorsed  upon  the 
in    the    text.     N.  Y.  Code  Civ.   Proc,  confession  of  judgment: 

§  3011  (Birds.  Rev.  Stat.  (1895),  p.  1803,  "We,foAnjDoe  and  Sarah  Roe,  here- 

§  155).  by   agree  that   no  execution  shall    be 

Plaintiff's  affidavit  must  also  accom-  issued  upon  the  judgment  which  may 

pany    the    confession    when  the  judg-  be  rendered  under  and  by  virtue  of  the 

ment  confessed  is  for  more  than  fifty  annexed  confession,  and  that  execution 

dollars,  which  affidavit  must  state  that  shall  be  stayed  thereon  for  six  months 

the  defendant  is  honestly  and  justly  in-  from   the  date  of  the  judgment.     Feb' 

debted  to  the  plaintiff  in  the  sum  speci-  ruary  gth,  x%g8.                   John  Doe, 

fied    therein    over   and    above  all  just  Sarah  Roe." 

demands    which    the     defendant     has  6.  North  Dakota. —  Rev.  Codes  (1895), 

against  the  plaintiff,  and  that  the  con-  §§  6131,  6701. 

fession  is  not  made  or  taken  with  in-  See  also  list  of  statutes  cited  supra, 

tent    to   defraud  any  creditor,     N.  Y.  note  2,  p.  48. 

76  Volume  5. 


^'[ss. 


6048.  CONFESSION  OF  JUDGMENT.  6048. 

myself  for  the  sum  of  eighty-seven  dollars  and  twenty  cents,  which  is 
justly  due  to  the  said  John  Doe  from  me,  and  I  hereby  authorize  you 
to  enter  judgment  therefor  against  me.  This  confession  is  for  a 
debt  now  justly  due  from  me  to  the  said  John  Doe  arising  upon  the 
following  facts:  {Here  set  out  the  fact  s^\  that  no  part  thereof  has 
been  paid  and  that  the  whole  thereof  is  now  due. 

Dated  at  Bismarck  this  twenty-first  day  of  December,  iS97. 

Richard  Roe. 
State  of  North  Dakota, 
County  of  Burleigh. 

Richard  Roe,  being  duly  sworn,  says  that  the  facts  stated  in  the 
within  confession  are  true. 

Richard  Roe. 

Subscribed  and  sworn  to  before  me  this  twenty-first  day  of  Decem- 
ber., i897.  Abraham  Kent,  Justice  of  the  Peace. 

b.  After  Action  Commenced^  —  Cognovit.' 
(1)  Generally. 
Form  No.  6048.^ 

In  the  Queen' s  Bench  (or  Common  Fleas  or  Exchequer  of  Fleas). 

Between  John  Doe,  plaintiff,  and 
Richard  Roe,  defendant. 
I  confess  this  action,  and  that  the  plaintiff  hath  sustained  damages 
to  the  amount  of  one  thousand  pounds  (the  damages  laid  in  the  declara- 

1.  Louisiana.  —  In  Dawson  v.  Babin,  Pub.  Gen.  Laws  (1888),  art.   52,  §§64, 

9    La.   Ann.    357,   the   confession    was  65.     Such  a  supersedeas  may  be  in  the 

held  to  be  sufficient  to  authorize  a  judg-  following  form: 

ment  against  the  obligors  and  to  dis-  "  State       of       Maryland,       Allegany 

pense    with    service    of    citation    and  County,  to  wit: 

petition.     Omitting  formal   parts,   the  We,  Charles  Smith  Sind.  John  Jones,  do 

confession  was  as  follows:  confess  judgment  to  John  Doe  for  the 

"We  waive  citation  and  service  of  sura  oi  one  hundred  and ffty  do\\a.rs&T\d 

petition,  and  confess  judgment  accord-  forty  cents,  damages  and  costs,  which 

ing  to   the  prayer  of    the  petition   of  were  recovered  by  the  said  John  Doe 

M.    V.   Babin  within   for  the    sum   of  on  the  tenth  day  of  April,  i8g6,  before 

three  hundred  and  thirty-^ve  doWsiTS  and  Abraham  Kent,  a  justice  of  the  peace 

ninety-two  cents,  with  interest  thereon  of  the  state  of  Maryland  in  and  for  the 

at  the  rate  oi  eight  per  cent,  per  annum  county  of  Allegany  aforesaid,  the  debt 

from  the  frst   day    oi  January,    iS^g,  and  costs  to  be  levied  on  our  goods, 

until  paid,  and  costs  01  suit,  with  stay  chattels,  lands  or  tenements  for  the  use 

of  execution  until  the  ist  of  December,  of  the  said  John  Doe  in  case  the  said 

18./9.  March  i6th,  i?>4g,  Richard  Roe  shall   not  pay  and  satisfy 

James  C.  Dawson,  to  \.\i^?,z.\d  John  Doe  the  aforesaid  judg- 

Mary  Ann  Dawson,  ment   and    costs    with   any   additional 

Signed  in  presence  of  costs  thereon  at  the  expiration   of  six 

Enos  Herbert."  months   from    the   date   of  said   judg- 

A   confession   of  judgment  by  way  of  ment.      Dated    this   fifteenth    day    of 

supersedeas  of  a  judgment  or  decree  in  April,  1896.       Charles  Smith,     (seal) 

the  court  of  record  shall,  in  Maryland,  John  Jones.           (SEAL) 

be  a  lien  on  the  lands  of  the  persons  Test:    Samuel  Short. 

therein  named  from  the  time  such  su-  William  West." 

persedeas  is  filed,   in  like  manner  as  2.  Illinois.  —  For   form  of  narr  and 

judgments  rendered   in   any  court  of  cognovit  in  Illinois  see  the  title  Bills 

law,  but  the  confession  shall  not  defeat  and  Notes,  vol.  3,  Form  No.  4181. 

the    lien    of    the    original    judgment.  3.  Cognovit  in  Assumpsit.  —  This  is  the 

76  Volume  5. 


6048. 


CONFESSION  OF  JUDGMENT. 


6048. 


tion,  or  sum  indorsed  as  the  debt  on  the  back  of  the  writ,  if  the  cognovit  be 
given  before  the  declaration^,  besides  his  costs  and  charges  in  this 
behalf,  to  be  taxed  by  one  of  the  masters  {or,  if  already  taxed  or 
agreed  on,  say,  "  to  the  amount  of  one  thousand  pounds  ");  and  in  case 
I  shall  make  default  in  payment  of  the  sum  of  one  thousand  pounds 
{the  real  debt),  being  the  debt  in  this  action,  together  with  the  said 

costs,  on  the  day  of  next,  the  plaintiff  shall    be  at 

liberty  to  enter  up  judgment  for  the  said  sum  of  one  thousand  pounds 
{the  sum  confessed;  or,  if  in  debt  and  the  whole  debt  be  confessed,  say, 
"  the  said  debt  "),  together  with  the  said  costs  and  alsQ  the  costs  of 
entering  up  such  judgment,  and  shall  also  be  at  liberty  thereupon 
forthwith  to  sue  out  execution  for  the  said  sum  of  one  thousand 
pounds  {the  real  debt)  and  the  said  costs,  together  with  the  amount  of 
the  costs  of  such  execution,  officers'  fees,  sheriff's  poundage,  costs 
of  levying,  and  all  other  incidental  expenses:  And  I  do  hereby 
undertake  not  to  bring  any  writ  of  error,  nor  file  any  bill  in  equity, 


form  set  out  in  full  in  Chit.  F.  (1847), 
p.  308,  and  may  be  readily  adapted  for 
use  in  such  states  as  have  no  statutory 
provisions  governing  confessions  of 
judgment  where  the  common  law,  as 
recognized  in  the  United  States,  is  the 
rule  of  practice. 

Cognovit  in  Debt.  —  The  form  of  this 
cognovit  as  given  in  Chit.  F.  {1847),  p. 
309,  is  as  follows:  {Title  of  court  and 
cause  as  in  Form  No.  6048.)  "  I  confess 
the  debt  in  this  cause  to  the  amount  of 
£1,000  {or,  if  part  only,  say,  '  I  con- 
fess that  I  owe  to  the  above  mentioned 
plaintiff  £1,000,  parcel  of  the  debt  by 
him  in  his  declaration  in  this  action  de- 
manded'), and  that  the  plaintiff  hath 
sustained  damages  to  the  amount  of 
one  shilling  on  occasion  of  the  detain- 
ing thereof,  besides  his  costs."  {Con- 
cluding as  in  Form  No.  6048.) 

Cogrnovit  in  Ejectment.  —  The  form  of 
this  cognovit  as  given  in  Chit.  F. 
(1847),  p.  362,  is  as  follows: 

( Title  of  court  as  in  Form  No.  604S.) 
Between  y^Z/w  Doe,  on  the  demise  of 
Samuel  Short,  plaintiff,  and 
fohn  Styles,  defendant. 

I  confess  this  action,  and  that  the 
saXd  fohn  Doe  is  entitled  to  recover  his 
term  (or  terms)  yet  to  come  of  and  in 
messuages,  etc.  {as  in  the  declara- 
tion, or  part  of  them),  with  the  appur- 
tenances, situate  in ,  in  the  county 

of ,  [part  of]  the  tenements  men- 
tioned in  the  declaration  in  this  cause; 
and  also  that  the  said  fohn  Doe  hath 
sustained  damage  by  reason  of  the 
trespass  and  ejectment  (or  trespasses 
and  ejectwcnts)  in  the  said  declaration 
mentioned,  to  one  shilling,  besides  his 
costs  of  suit  in  this  behalf  to  £1,000  {ox 


to  be  taxed  by  one  of  the  masters).  {If 
the  defendant  confesses  mesne  profits,  pro- 
ceed thus:  "And  also  that  the  said 
fohn  Doe  hath  sustained  damage  to 
£1,000  for  the  mesne  profits  of  the  \said 
parcel  of  the]  premises  aforesaid,  which 
have  or  might  have  accrued  or  shall  or 

may  accrue,  from  the day  of 

{the  day  of  the  demise  in  the  declaration) 

down   to  the  day  of next.") 

And  in  case  I  shall  make  default  in 
delivering  up  possession  of  the  \said 
parcel  of  the]  premises  aforesaid,  or  in 
the  payment  of  the  said  sum  of  £1,000 
for  damages  and  costs  as  aforesaid  (or 
for  damages  as  aforesaid,  together  with 
the  costs  to  be  taxed  as  aforesaid)  on  the 

day   of  next,   then  the   said 

fohn  Doe  shall  be  at  liberty  to  enter  up 
judgment  for  his  term  (or  terms)  of  and 
in  the  [said  parcel  of  the]  premises  afore- 
said, and  for  his  said  damages  and 
costs  above  acknowledged,  as  also  for 
the  costs  of  entering  up  such  judgment 
and  of  suing  out  execution,  and  that 
he  shall  also  be  at  liberty  thereupon 
forthwith  to  sue  out  execution  for  the 
same,  together  with  sheriff's  poundage, 
costs  of  levy,  and  all  other  incidental 
expenses.  And  I  do  hereby  agree  {if 
defendant  have  pleaded,  say,  "to  with- 
draw the  plea  by  me  pleaded  in  this 
action,  and")  not  to  bring  any  writ  of 
error,  or  file  any  bill  in  equity,  and  that 
it  shall  not  in  any  case  be  necessary  to 
revive  the  judgment  entered  upon  this 
cognovit,  either  by  scire  facias  or  other- 
wise, notwithstanding  execution  there- 
on may  not  have  issued  within  a  year 
after  the  signing  thereof. 

Dated"  {concluding  as  in  Form  No. 
6048). 


77 


Volume  5. 


6049.  CONFESSION  OF  JUDGMENT.  6050. 

nor  do  any  other  matter  or  thing  to  delay  the  said  plaintiff  from 
entering  up  his  judgment  or  suing  out  execution  thereon,  as  aforesaid ; 
also  that  it  shall  not  at  any  time  or  in  any  event  be  necessary,  pre- 
vious to  issuing  the  said  execution,  to  revive   the  said  judgment,  or 

to  sue  out  or  execute  any  writ  of  scire  facias.      Dated  this  

day  of 1 8 — . 

Richard  Roe. 
Signed  by  the  above  named  Richard  Roe  in   the  presence  of  me, 
the  undersigned  Jeremiah  Mason,  one  of  the  attorneys  of  the  court 

of ,  at  Westminster,  expressly  named  by  the  said  Richard  Roe, 

and  attending  at  the  execution  thereof  at  his  request,  to  inform  him 
of  the  nature  and  effect  hereof  before  the  same  was  executed;  and 
I  hereby  declare  myself  to  be  attorney  for  the  said  Richard  Roe,  and 
that  I  subscribe  this  attestation  as  such  his  attorney. 

Jeremiah  Mason. 

Form  No.  6049.' 

•^  •  .  (In  the  Court  of  Common  Pleas  of  Allegheny  County, 
Ri^hZ  Roe.  \  ^'^'"^^y  Term,  i?>98.     No.  102. 

On  this  ninth  day  of  February,  i898,  comes  now  the  defendant 
Richard  Roe  and  hereby  confesses  judgment  in  the  above  action  in 
{a.\ or  oi  John  Doe,  the  plaintiff,  against  himself  for  the  sum  oi  Jive 
hundred  dollars  and  costs  of  suit,  with  a  release  of  errors  and  with  a 
stay  of  execution  according  to  law. 

Richard  Roe,  Defendant, 

(2)  With  a  Relicta  Verificatione. 
Form  No.  6050.' 

In  the  Queen's  Bench  (or  Common  Fleas  or  Exchequer  of  Pleas), 

Between  John  Doe,  plaintiff,  and 
Richard  Roe,  defendant. 
I  do   hereby  agree   to  withdraw  the   plea   (or   demurrer)  by  me 
pleaded  in  this  cause,  and  do  confess  this  action  (or  the  debt  in  this 
cause).     {^Concluding  as  in  Form  No,  60Jf8,) 

1.  Pennsylvania.  —  i    Troub.     &    H.  (Addressed  to  F.  A.  McCalmont,  Esq., 

Pr.,  §§  424-433.     See  also  list  of  stat-  Prothonotary .) 

utes  cited  supra,  note  2,  p.  48.  2.  Cognovit    with  a   Relicta    Verifica- 

Written  order  for  confession  of  judg-  tione.  —  This   is   the    form   set   out   in 

ment  in   McCalmont  v.  Peters,  13  S.  &  Chit.   F.    (1847),   p.    309,    and    may   be 

R.  (Pa.)  196,  was  as  follows:  readily   adapted    for    use   in   jurisdic- 

"  Common  Pleas  of  Venango  County,  tions  where    the    common    law    is    the 

of  the  February  Term,  18^^.     Debt  ten  rule  of  practice. 

thousand  dollars.  Selicta  Verificatione  to  a  Bejoinder  and 

Richard  Peters,  Jr.,  \  Plea.  —  The  following  form  is  given  in 


V.  \  Chit.  F.  (1847),  p.  310: 

Thomas  R.  Peters.    )  ^'Richard  Roe)      And  thereupon  the  de- 


I   do    hereby   confess    judgment    in  ats.         >  fendant,  inasmuch  as  he 

favor  of  the  plaintiff  above  named  for  John  Doe.    )  cannot  deny  that  the  re- 

the  sum  of   ten   thousand  dollars,   and  joinder    to     said     replication     of     the 

authorize  the  prothonotary  of  said  court  plaintiff  to  the  said  plea  of  the  said  de- 

to  enter  the  same  as  of  February  Term,  fendant  by  him  {secondly)  above  pleaded 

l%22.     Ti3iX.td  April  24th,  1S22.  in  bar,  and   the    matters    therein  con- 

Thomas  R.  Peters,  defendant."  tained,    in   manner   and   form   as    the 

78  Volume  5. 


6051. 


CONFESSION  OF  JUDGMENT. 


6051. 


2.  By  Attorney.^ 

Form  No.  6051.' 
Circuit  Court  oiCook  County.  February  Term,  a.  d.  1W8. 


same  are  above  stated  and  set  forth, 
are  not  sufficient  in  law,  freely  here  in 
court  relinquishes  the  said  rejoinder 
and  the  said  plea  of  the  defendant  by 
him  (secondly)  above  pleaded  in  bar, 
and  wholly  abandons  all  verification 
thereof:  Therefore  let  no  regard  what- 
ever be  further  had  to  the  said  plea  of 
the  defendant  by  him  {secondly)  above 
pleaded  in  bar,  or  to  the  said  rejoinder 
to  the  said  replication  to  the  said 
{second)  plea." 

Cognovit  by  Two  Defendants  in  Debt, 
the  Debt  Payable  by  Instalments,  with  a 
Belicta  Verificatione.  —  The  form  of  this 
cognovit  as  given  in  Chit.  F.  (1847),  p. 
309,  is  as  follows: 

{Title  of  court  and  cause  as  in  Form 
No.  60J0.)  "We  confess  the  debt  in 
this  cause  amounting  to  £1,000,  and 
that  the  plaintiff  has  sustained  dam- 
ages to  the  amount  of  one  shilling  on 
occasion  of  the  detaining  thereof,  be- 
sides his  costs  and  charges  in  this 
behalf,  amounting  to  £1,000  (or  to  be 
taxed,  etc.,  as  in  Form  No.  6048),  and 
judgment  may  be  forthwith  entered  up 
for  the  said  debt  and  costs,  and  the 
costs  of  entering  up  the  said  judg- 
ment; and  we  and  each  of  us  hereby 
agree  to  pay  the  said  debt  and  costs 
by  the  following  instalments,  that  is  to 
say,  the  sum  of  £1,000,  part  thereof, 
on  the  day  of  now  next  en- 
suing; the  further  sum  of  £1,000,  other 

part  thereof,  on  the  day  of  every 

succeeding  month,  until  the  whole  of 
the  said  debt  and  costs  be  fully  paid 
and  satisfied;  it  being  hereby  under- 
stood and  agreed  that  no  execution  is 
to  issue  on  the  said  judgment  until 
default  be  made  by  us,  or  either  of  us, 
in  the  payment  of  the  said  instalments, 
or  any  or  either  of  them,  on  the  days 
and  at  the  times  they  respectively  be- 
come due  and  payable  as  aforesaid, 
when  the  plaintiff  shall  be  at  liberty 
thereupon  forthwith  to  sue  out  execu- 
tion for  the  same,  and  for  the  whole  of 
the  said  debt  and  costs  that  remain 
unpaid,  together  with  the  amount  of 
officers'  fees,  sheriff's  poundage,  costs 
of  levying,  and  all  other  incidental  ex- 
penses. And  we  hereby  agree  to  with- 
draw the  plea  (or  demurrer)  pleaded 
by   us   in   this   action,   and   undertake 


not  to  bring  any  writ  of  error  in  this 
cause,  or  file  any  bill  in  equity,  or  do 
any  other  matter  or  thing  whereby  the 
plaintiff  may  be  delayed  in  entering 
up  his  judgment  or  suing  out  execu- 
tion thereon  as  aforesaid,  also  that  it 
shall  not  at  any  time  or  in  any  event 
be  necessary,  previous  to  issuing  the 
said  execution,  to  revive  the  said  judg- 
ment, or  to  sue  out  or  execute  any 
writ  of  scire  facias. 

Dated  this day  of ,  A.  D. . 

Richard  Roe. 
Edward  Fox. 

Signed  "  {concluding  as  in  Form  No. 
6048). 

1.  Delaware.  —  When  judgment  is 
confessed  by  virtue  of  a  warrant  of  at- 
torney for  a  penalty,  the  attorney  con- 
fessing the  judgment  shall,  in  a  written 
direction  to  the  officer  entering  the 
judgment,  set  down  the  real  debt,  and 
the  time  from  which  interest  is  to  be 
calculated;  which  shall  be  entered  by 
the  said  officer  upon  the  docket  of  the 
judgment.  Del.  Laws  (1893),  p.  811, 
c.  no,  §  14. 

No  declaration  shall  be  necessary, 
nor  shall  any  cognovit  be  required  for 
the  confession  of  any  judgment.  Del, 
L.  (1893),  p.  795,  c.  106,  §  32. 

Tennessee.  —  The  debtor  may  author- 
ize any  person  to  confess  judgment  for 
him.     Tenn.  Code  (1896),  §  4706. 

For  other  states  in  which  provisions 
exist  relating  to  confession  of  judgment 
by  attorneys  see  list  of  statutes  cited 
supra,  note  2,  p.  48. 

Conclusiveness  of  Confession.  —  A  con- 
fession of  judgment  by  an  attorney  of 
record  is  conclusive  until  traversed  and 
found  untrue.  Devant  v.  Carlton,  57 
Ga.  489.  The  confession  in  that  case 
was:  "  We  confess  judgment  to  the 
plaintiffs  for  the  sum  of  two  thousand 
and  twenty  dollars  principal,  nine  hun- 
dred and  fifty-four  dollars  a.nA  fifty-nine 
cents  interest  and  costs  of  suit. 
F.  B.  fr'  T.  W.  Robinson, 

Defendant's  Attorneys." 

2.  Illinois.  —  Starr  &  C.  Anno.   Stat. 
(1896),    p.    3083,   par.    66.      See   list   of 
statutes  cited  supra,  note  2,  p.  48. 
Consult  also  the  title  Bills  and  Notes, 
vol.  3,  Form  No.  4181. 

In  Keith  v.  Kellogg,  97  111.  151,  the 
)  Volume  5. 


6051. 


CONFESSION  OF  JUDGMENT. 


6051. 


Richard  Roe  ) 

ads  >  Cognovit. 

John  Doe.  ) 
And  the  said  Richard  Roe.,  defendant  in  the  above  entitled  suit,  by 
Jeremiah  Mason.,  his  attorney,  comes  and  defends  the  wrong  and 
injury,  when,  etc.,  and  waives  service  of  process,  and  says  that  he 
cannot  deny^  the  action  of  the  said  plaintiff,  nor  but  that  he,  the 
said  defendant,  did  undertake  and  promise,  in  manner  and  form  as 
the  said  plaintiff  has  above  complained  against  him,  nor  but  that  the 
said  plaintiff  has  sustained  damages  on  occasion  of  the  nonperform- 
ance of  the  several  promises  and  undertakings  in  the  said  declaration 
mentioned,  including  the  sum  oi  one  huridred  ^loW^s^.,  for  his  reason- 
able attorney's  fees  for  entering  up  this  judgment,  over  and  above 
his  other  costs  and  charges  by  him  about  his  suit  in  this  behalf 
expended  to  the  amount  of  one  thousand  do\\a.rs  and  j/i/(y  cents  ;2  and 
the  said  defendant  further  agrees  that  no  writ  of  error  or  appeal 
shall  be  prosecuted  on  the  judgment  entered  by  virtue  hereof,  nor 
any  bill  in  equity  filed  to  interfere,  in  any  manner,  with  the  operation 
of  said  judgment,  and  that  he  hereby  releases  all  errors  that  may 
intervene  in  entering  up  the  same,  or  issuing  the  execution  thereon, 
and  consents  to  immediate  execution  upon  such  judgment. 

Jeremiah  Mason.,  Defendant's  Attorney. 


cognovit,    omitting   the   formal   parts, 
was  as  follows: 

"  And  the  said  Harley  M.  Lyford,  de- 
fendant in  the  above  entitled  suit,  by 
George  J.  Miinroe,  his  attorney,  comes 
and  defends  the  wrong  and  injury, 
when,  etc.,  and  waives  service  of 
process,  and  says  that  he  cannot  deny 
the  action  of  the  said  plaintiffs,  nor  but 
that  he,  the  said  defendant,  did  under- 
take and  promise  in  manner  and  form 
as  the  said  plaintiffs  have  above  com- 
plained against  him,  nor  but  the  said 
plaintiffs  have  sustained  damages  on 
occasion  of  the  nonperformance  of  the 
several  promises  and  undertakings  in 
the  said  declaration  mentioned,  includ- 
ing the  sum  of  $/oo  for  their  reasonable 
attorney's  fees  for  entering  up  this  judg- 
ment, over  and  above  their  other  costs 
and  charges  by  them  about  their  suit  in 
this  behalf  expended,  to  the  amount  of 

%4y221.02." 

1.  Cognovit  containing  words  "  I  cannot 
deny"  is  sufficient  to  authorize  the  clerk 
to  enter  up  the  judgment.  Lewis  v. 
Barber,  21  111.  App.  638. 

2.  Confession  ought  to  be  for  a  specified 
stun,  and  there  is  no  power  to  enter  a 
judgment  on  a  cognovit  for  an  uncertain 
and  unliquidated  amount.  Little  v. 
Dyer,  138  111.  272. 

Beclaration.  —  Under  the  Illinois  stat- 
ute authorizing  judgments  to  be  con- 


fessed in  vacation,  plaintiff  must  file  a 
declaration  on  his  cause  of  action. 
Stein  V.  Good,  16  111.  App.  516.  The 
following  form  of  declaration  may  be 
used: 

"  Circuit    Court     of     Cook     County. 
November  Term,  1897, 
State  of  Illinois,  \ 
Cook  County.        \ 

John  Doe,  the  plaintiff  in  this  suit,  by 
Jeremiah  Mason,  his  attorney,  complains 
oi Richard  Roe,  A&i&nd.aLnx.  in  this  suit, 
in  a  plea  of  trespass  on  the  case  on 
promises,  for  that  whereas,  the  said  de- 
fendant heretofore,  to  wit,  on  theyf^j/ 
day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and 
ninety-six,  at  Chicago,  to  wit,  at  Chicago 
in  the  county  aforesaid,  made  a  certain 
note  in  writing,  commonly  called  a 
promissory  note,  bearing  date  the  day 
and  year  last  aforesaid,  and  then  and 
there  delivered  the  said  note  to  the  said 
plaintiff,  in  and  by  which  said  note  the 
said  defendant  by  the  name,  style  and 
description  ol  Richard  Roe,  promised  to 
pay  to  the  order  of  said  plaintiff,  by  the 
name,  style  and  description  of  John, 
Doe,  after  the  date  thereof,  the  sum  of 
seven  hundred  dollars  for  value  received, 
with  interest  at  six  per  cent,  from  date 
thereof.  And  whereas,  also,  the  said 
defendant  afterward,  to  wit,  on  the 
same  day  and  at  the  place  aforesaid,  to 


80 


Volume  5. 


6052.  CONFESSION  OF  JUDGMENT.  6053. 

Form  No.  6053.' 
John  Doe     ) 
against       >  In  the  Circuit  Court  of  Allegany  County,  Maryland. 
Richard  Roe.  ) 
To  the  Clerk  of  the  Circuit  Court  of  Allegany  County: 

This  case  is  to  be  docketed  by  consent  as  of  'the  February  term, 
i857,  the  appearance  of  Daniel  Webster,  attorney  for  the  defendant, 
entered,  and  a  judgment  by  confession  entered  in  favor  of  the  plain- 
tiff for  the  sum  of  twelve  hundred  dollars  with  interest  from  the  ^rst 
day  of  December,  i897,  together  with  costs  of  suit. 

Jeremiah  Mason,  Attorney  fof  Plaintiff. 
Daniel  Webster,  Attorney  for  Defendant. 
{Order  of  court. ^^ 

Form  No.  6053.' 

State  of  Michigan^  Circuit  Court  for  the  County  of  Montcalm 
John  Doe 

against 
Richard  Roe. 

And  the  said  Richard  Roe,  defendant  in  the  above  entitled  suit,  by 
Daniel  Webster,  his  attorney,  comes  and  defends  the  wrong  and 
injury,  when,  etc.,  and  says  that  he  cannot  deny  the  action  of  the  said 
plaintiff,  nor  but  that  he  the  said  defendant  did  undertake  and  prom- 
ise in  manner  and  form  as  the  plaintiff  in  his  complaint  complains 
against  him,  nor  but  that  the  said  plaintiff  has  sustained  damages  on 
account  of  the  nonperformance  of  the  several  promises  and  under- 
wit, at  said  county,  made  and  executed  ant,  although  often  requested,  etc.,  has 
a  power  of  attorney,  and  attached  the  not  yet  paid  the  said  sum  of  money  or 
same  to  said  note,  by  which  power  of  any  part  thereof  to  the  said  plaintiff, 
attorney  Richard  Hoe,  the  said  defend-  but  so  to  do  has  heretofore  wholly  re- 
ant,  authorized  any  attorney  of  any  fused  and  still  does  refuse,  to  the  dam- 
court  of  record  to  appear  for  him  in  age  of  the  said  plaintiff  of  the  sum  of 
said  court  at  any  time  after  the  date  of  one  thousand  dollars,  and  therefore  he 
said  note  and  confess  a  judgment,  with-  brings  suit,  etc. 
out  process  in   favor  of  the   holder  of  Oliver  Ellsworth, 

said  note,  for  such  amount  as  may  ap-  Plaintiff's  Attorney." 

pear  to  be  due  thereon,  with  costs  and  1.  Maryland.  —  Pub.  Gen.  Laws 
/ive  per  cent,  attorney's  fees.  By  rea-  (1888),  art.  17,  §  50. 
son  whereof  and  by  force  of  the  statute  2.  Order  of  court  forentry  of  judgment 
in  such  case  made  and  provided  the  said  upon  order  of  counsel  may  be  in  the 
defendant  became  liable  to  pay  to  the  following  words  :  "  This  «j«/A  day  of 
said  plaintiff  the  said  sum  of  money  in  February,  i8<p<f,  it  is  ordered  by  the  court 
the  said  note  specified,  according  to  the  that  the  clerk  of  the  Allegany  Circuit 
tenor  and  effect  of  the  said  note  and  Court  enter  a  judgment  by  confession, 
power  of  attorney,  and,  being  so  liable,  as  agreed  to  by  the  attorneys  of  the  re- 
the  said  defendant  in  consideration  spective  parties  in  this  case,  as  shown 
thereof  afterward,  to  wit,  on  the  same  by  their  accompanying  order  and  agree- 
day  and  year  last  aforesaid,  and  at  the     ment." 

place  last  aforesaid,  undertook  and  3.  Michigan. — Judgments  may  be 
then  and  there  faithfully  promised  the  entered  in  any  circuit  court  in  vacation 
said  plaintiff  well  and  truly  to  pay  unto  as  well  as  in  term,  upon  a  plea  of  con- 
the  said  plaintiff  the  said  sum  of  money  fession,  signed  by  an  attorney  of  such 
in  the  said  note  specified,  according  to  court,  although  there  be  no  suit  then 
the  tenor  and  effect  of  said  note  and  pending  between  the  parties.  How. 
power  of  attorney;  yet  the  said  defend-     Anno.  Stat.  (1882),  §  7662. 

5E.  ofF.  P.  — 6.  81  Volumes. 


6054. 


CONFESSION  OF  JUDGMENT. 


6054. 


takings  in  the  said  declaration  mentioned  in  the  sum  of  twelve  hun- 
dred dollars  damages,  together  with  all  costs  and  charges  by  him 
about  his  suit  in  this  behalf  expended;  and  the  said  defendant  further 
agrees  that  no  writ  of  error  or  appeal  shall  be  prosecuted  on  the 
judgment  entered  by  virtue  hereof,  and  he  hereby  releases  all  errors 
that  may  intervene  in  entering  up  the  same  or  issuing  execution 
thereon  and  consents  to  immediate  execution  on  such  judgment. 
Dated  this  ninth  day  of  February^  iS98. 

Daniel  Webster^  Defendant's  Attorney. 


Form  No.  6054.' 

State  of  New  Jersey^       Circuit  Court  of  the  Term  of  December^  iS97. 
Essex  County. 
John  Doe     \ 
against       V  In  Case. 
Richard  Roe.  ) 

The  said  defendant  comes  and  relinquishes  his  said  plea  by  him 
above  pleaded*  and  confesses  the  action  of  the  said  plaintiff  and  con- 
sents that  judgment  be  entered  against  him  for  the  sum  oi  five  hun- 
dred and  fifty  dollars  of  damages,  together  with  costs  of  suit  to  be  taxed. 

Daniel  Webster.,  Attorney  of  Defendant. 


1,  New  Jersey. — Gen.  Stat.  (1895),  p. 
2534,  §  3-  See  also  list  of  statutes  cited 
supra,  note  2,  p.  48. 

Another  form  of  cognovit,  which  may 
be  used  in  New  Jersey,  is  as  follows: 
'''Essex  County  Circuit  Court. 

Of  the  February  Term,  i89<?. 
Richard  Roe  ) 

against      >■  In  Case. 
John  Doe.    ) 

And  the  said  defendant,  Richard  Roe, 
hy  Jeremiah  Mason,  his  attorney,  comes 
and  defends  the  wrong  and  injury, 
when,  etc.,  and  confesses  the  action  of 
the  plaintiff  and  that  he  has  sustained 
damages  by  reason  of  the  nonperform- 
ance of  the  promises  and  undertakings 
in  the  plaintiff's  declaration  mentioned 
to  the  amount  of  five  hundred  dollars, 
and  he  hereby  confesses  judgment  in 
favor  of  the  said  plaintiff  for  the  sum  of 
five  ^««t/r<'^ dollars, besides  costs  of  suit 
to  be  taxed.  Jeremiah  Mason, 

Defendant's  Attorney." 

In  Covenant  — In  New  Jersey.  —  {Com- 
mencing as  in  Form  No.  60^4,  and  con- 
tin  uing  down  to,*  except  the  substitution  of 
word  "  Covenant ^^  for  "  Case"  in  the 
title)  "and  confesses  that  the  said  agree- 
ment or  guarantee  in  the  declaration 
set  forth  is  his  deed  and  that  the  plain- 
tiff has  sustained  damages  by  reason 
of  the  breaches  in  the  declaration  as- 
signed, over  and  above  his  costs  and 


charges  by  him  about  his  suit  in  this 
behalf  expended,  to  eight  hundred  and 
fifty  dollars,  and  consents  that  judg- 
ment be  entered  in  said  action  in  favor 
of  the  plaintiff  and  against  him,  the 
said  defendant,  for  the  sum  of  eight 
hundred  and  fifty  dollars,  besides  costs 
of  suit  to  be  taxed. 

Daniel  Webster, 
Defendant's  Attorney." 

Affidavit  of  Plaintiff —  Form  of.  —  The 
affidavit  required  by  New  Jersey  Gen. 
Stat.  (1896),  p.  174,  §  II,  to  authorize  the 
entry  of  a  judgment  by  confession  may 
be  as  follows,  to  wit: 
'■John  Doe     i  In  Debt.     Essex    Circuit 

against       >■      Court.     On  Bond  and 
Richard  Roe.  )      Warrant  of  Attorney. 

Essex  County,  ss. 

John  Doe,  of  full  age,  being  duly 
sworn,  on  his  oath,  saith  that  the  true 
consideration  of  a  certain  promissory 
note  made  by  Richard  Roe,  the  defend- 
ant in  this  cause,  dated  July  ist,  A.  D, 
1897,  payable  on  demand  to  the  said 
John  Doe  or  order,  for  value  received, 
without  defalcation  or  discount,  for  the 
sum  ol  five  hundred  dollars  with  inter- 
est, a  copy  whereof  is  annexed  to  the 
declaration  in  this  cause,  and  for  the 
amount  due  on  which,  being  five  hun- 
dred and  ten  dollars,  judgment  is  about 
to  be  confessed  to  the  plaintiff  in  said 
cause,    by    the   defendant    therein,  by 


82 


Volume  S- 


6055. 


CONFESS/ON  OF  JUDGMENT. 


6055. 


Form  No.  6055. 


Irtlrcoun^'ss.  [  I"  »•-«  Court ./  C^,n^  Pleas. 


Defendant's  answer. 


John  Doe^  plaintiff, 

against 

Richard  Roe,  defendant. 

I,  Daniel  Webster,  an  attorney  at  law  duly  admitted  to  practice  in 
the  several  courts  of  record  in  the  state  of  Ohio,  by  virtue  of  the  war- 
rant of  attorney  attached  to  the  foregoing  petition,  hereby  enter  an 
appearance  for  the  said  defendant  in  the  suit  of  John  Doe,  plaintiff, 
against  Richard  Roe,  defendant,  and  do  hereby  waive  the  issuance 
and  service  of  process  herein,  and  do  confess  judgment  in  favor  of  said 
John  Doe  against  the  said  Richard  Roe,  for  the  sum  oi  one  hundred  and 
four  dollars,^  and  ten  cents,  damages,  being  the  amount  due  as  prin- 
cipal and  interest  on  the  said  promissory  note,  and  also  for  costs  of 
suit.     I  do  hereby  release  all  errors  and  waive  all  right  of  appeal. 

Daniel  Webster,  Defendant's  Attorney. 


Daniel  Webster ,h\%  attorney, by  virtue  of 
a  special  warrant  of  attorney,  made  and 
executed  by  the  said  defendant,  dated 
the  /frj/ day  of  November,  a.  d.  1897, 
is  as  follows:  For  goods,  wares  and 
merchandise  sold  and  delivered  to  the 
said  Richard  Roe  by  saidyip^w  Doe  dur- 
ing the  months  of  May  andjune,  1897, 
and  this  deponent  further  saith  that  the 
said  sum  of  Jive  hundred  and  ten  dol- 
lars is  justly  and  honestly  due  and 
owing  by  the  said  defendant  to  the  said 
plaintiff,  and  that  the  said  judgment  is 
not  confessed  to  answer  any  fraudulent 
intent  or  purpose,  or  to  protect  the 
property  of  the  said  defendant  from  his 
other  creditors.  John  Doe. 

Sworn  and  subscribed  before  me  this 
ninth  day  oi  February,  iSgy,  z.X.Ne-u>ark. 

r«ir  A  t  \  Norton  Porter, 

^seal;  Notary  Public. 

This  affidavit  was  produced  before 
me  at  the  time  of  confessing  judgment 
in  this  action. 

John  Marshall,  Circuit  Judge." 

The  affidavit  is  a  prerequisite  to  the 
entry  of  judgment  and  essential  to  its 
validity.    Clapp  v.  Ely,  27  N.  J.  L.  555. 

The  consideration  must  be  shown  in 
the  affidavit.  Latham  v.  Lawrence,  11 
N.  J.  L.  322;  Scudder  v.  Coryell,  10  N. 
J.  L.  340;  Woodward  v.  Cook,  6  N.  J. 
L.  160. 

It  is  not  a  sufficient  setting  forth  a 
consideration  of  a  bond  on  which  judg- 
ment is  confessed  to  state  that  it  is  a 
promissory  note  given  by  the  defendant 
to  A,  and  by  him  indorsed  to  plaintiff. 
Reading  v.  Reading,  24  N.  J.  L.  359. 


Stating  debt  to  be  justly  due  is  sufficient 
without  stating  that  it  is  justly  owing. 
Reading  v.  Reading.  24  N.  J.  L.  358; 
Mulford  V.  Stratton,4r  N.  J.  L.  466. 

1.  Ohio. — Bates'  Anno.  Stat.  (1897), 

§§  5321-5325- 

Defendant  most  personally  appear  in 
court  to  authorize  a  judgment  by  con- 
fession under  Bates'  Anno.  Stat.  (Ohio, 
1897).  i5  5231- 

2.  Judgment  for  a  greater  sum  than 
shown  to  be  the  amount  due  under  the 
cause  of  action  as  stated  in  the  record 
is  erroneous.  Rosebrough  v.  Ansley, 
35  Ohio  St.  107. 

A  petition  duly  verified  should  be  filed 
when  a  judgment  by  confession  under 
a  warrant  of  attorney  is  sought.  Sid- 
ney First  Nat.  Bank  v.  Reed,  31  Ohio  St. 
435.  Such  petition  may  be  as  follows: 
"  The  State  of  Ohio,  )  In  the  Court  0/ 
Hamilton  County,  ss.  f    Common  Pleas. 

>/m  i?^.,  plaintiff.       )pi^i„^ifj., 
against  >  p    .  • 

Richard  Roe,  defendant.  \  ^^""°"- 

SaidyicA«  Doe,  plaintiff,  complains  of 
said  Richard  Roe,  defendant,  for  that 
the  said  defendant,  on  theyfrj/  day  of 
February,  1897,  at  Cincinnati,  in  the 
state  of  Ohio,  for  value  received,  made 
his  certain  promissory  note  in  writing 
of  that  date,  together  with  a  warrant 
of  attorney,  which  said  promissory 
note,  together  with  all  the  indorsements 
thereon,  and  said  warrant  of  attorney 
are  hereto  attached,  marked  Exhibit 
A  and  hereby  made  a  part  of  this  peti- 
tion; and  that  the  said  defendant  then 
and  there  delivered  the  said  promissory 
88  Volume  5. 


6056. 


CONFESSION  OF  JUDGMENT. 


6056. 


Form  No.  6056.' 

{Title  of  court  and  cause  as  in  Form  No.  609 Jf..')  I,  Jeremiah  Mason., 
attorney  ior  Richard  Roe.,  above  named  defendant,  on  this  ninth  day 
oi  February^  iS98,  do  hereby  enter  an  appearance  for  the  said  defend- 


note  and  warrant  of  attorney  to  the  said 
plaintiff,  and  thereby  promised  to  pay 
to  the  said  plaintiff,  or  order,  one  year 
after  the  date  thereof,  the  sum  of  fve 
/lundred  doWsLTs,  with  interest  thereon, 
at  the  rate  oi  four  per  cent,  per  annum, 
which  period  has  since  elapsed,  yet 
said  defendant  has  not  paid  said  sum 
of  money  or  any  part  thereof  to  said 
plaintiff,  although  often  requested  so 
to  do;  and  said  plaintiff  further  says 
that  the  full  amount  of  Jive  hundred 
■dollars,  with  interest  as  aforesaid,  is 
now  due  thereon  and  wholly  unpaid; 
that  he  has  never  parted  with  the 
ownership  of  said  promissory  note,  and 
that  he  is  still  the  legal  owner  and 
holder  thereof. 

Wherefore,  said  plaintiff  prays  judg- 
ment against  said  defendant  for  the 
sum  ol  Jive  hundred  dollars,  with  inter- 
est thereon,  at  the  rate  of  Jour  per 
cent,  per  annum,  from  the  frsi  day  of 
J^ebruary,  1 897. 

Oliver  Ellsworth, 
Plaintiff's  Attorney. 
The  State  of  Ohio,       \  Plaintiff's  attor- 
Hamilton  Connly ,  ss.  )     ney's  affidavit. 

Oliver  Ellsworth,  being  duly  sworn, 
says,  that  he  is  the  attorney  of  record 
of  the  plaintiff  named  in  the  above  and 
foregoing  petition;  that  this  suit  is 
brought  upon  an  instrument  of  writ- 
ing for  the  payment  of  money  only,  to 
wit,  upon  a  promissory  note;  that  said 
instrument  of  writing  is  in  possession 
of  him,  the  said  Oliver  Ellsworth,  and 
that  he  verily  believes  the  statements 
contained  in  the  foregoing  petition  are 
true  in  substance  and  in  fact. 

Oliver  Ellsworth, 

Sworn  to  before  me,  and  subscribed 
in  my  presence,  by  said  Oliver  Ells- 
vjorth,  this  ninth  day  of  February,  i8gS, 

(seal)  Norton  Porter, 

Notary  Public." 

Defects  in  verification  of  such  a  peti- 
tion will  be  considered  waived  where 
the  judgment  was  under  a  warrant  au- 
thorizing the  waiving  of  process  and 
release  of  all  errors.  Sidney  First  Nat. 
Bank  v.  Reed,  31  Ohio  St.  435. 

1.  Pennsylvania.  —  i  Troub.  &  H. 
Pr.,  ^  424-433- 

Under  a  warrant  in  the  usual  form  in 


Hageman  v.  Salisberry,  74  Pa.  St.  280, 
empowering  "any  attorney  of  any 
court,  etc.,  to  appear  before  me,  and 
after  one  or  more  declarations  filed  for 
the  above  penalty,  thereupon  to  confess 
judgment,"  etc.,  a  declaration  was  filed 
on  the  bond  in  suit  by  T.  J.  Bigham, 
Esq..  as  attorney  for  plaintiff.  A  con- 
fession of  judgment  was  also  filed  as 
follows: 

"  By  virtue  of  a  warrant  of  attorney, 
authorizing  me  thereto,  I  appear  for  the 
defendant  above  named,  and  confess 
judgment  against  him  for  the  sum  of 
six  hundred  dollars,  with  costs  of  suit, 
release  of  errors;  to  be  released  on  pay- 
ment of  three  hundred  dollars,  with  in- 
terest and  attorney's  commission,  and 
with  leave  to  take  out  execution  for 
said  sum,  with  interest  from  the  Jirst 
day  of  December,  i8jr6.  Hereby  waiv- 
ing inquisition  and  condemnation  on 
all  real  estate  and  appraisement  on  all 
property,  real  or  personal,  taken  in 
execution  by  virtue  hereof. 

T.  J.  Bigham, 
Attorney  for  the  Defendant." 
Docket  entry  of  the  confession  was  as 
follows: 

164,  January  Term, 
i8j7.  D.  S.B.,%boo. 
Real  debt,  %300.  In- 
terest from  December 
ist,  i8j6. 
And  now,  December  ijth,  iSj^,  comes 
T.J.  Bigham,  Esq.,  and  confesses  judg- 
ment in  favor  of  the  plaintiff,  W.  O. 
Leslie,  against  the  defendant,  A.  Row- 
land, for  the  sum  of  six  hundred  dol- 
lars, to  be  released  on  payment  of  three 
hundred  dollars  on  the  1st  December, 
1856.  with  interest  from  said  December 
jst,  i8j6,  with  waiver  of  inquisition, 
and  condemnation  and  appraisement, 
and  with  attorney's  commission,  etc. 
John  Birmingham,  Pro. 
136,  January  Term, 
1 857.  Fi.  fa.  on  164, 
January  Term,  1857. 
Penalty,  %boo.  Real 
Debt,  %soo.  Interest 
from  Decern  ber  ist, 
1856.  ,       . 

and       condemnation 


W.  0.  Leslie 


A.  Rowland.     \ 


J 


W.  0.  Leslie 

v. 
A.  Rowland. 


Inquisition 
waived. 


84 


Volume  5. 


6057.  CONFESSION  OF  JUDGMENT.  6057. 

ant  and  confess  judgment  against  him,  the  said  ^/V^cr^^^^,  and  in 
favor  of  the  plaintiff  above  named,  John  Doe,  for  the  sum  of  five 
hundred  dollars  and  costs  of  this  suit,  with  a  release  of  errors  and 
with  stay  of  execution  according  to  law. 

Jeremiah  Mason,  Attorirey  for  Defendant. 

Form  No.  6057.' 

(Precedent  in  Rogers  v.  Cherrier,  75  Wis.  57.) 

N.  McKie,  Plaintiff,         ) 

against  V  Answer  of  defendant. 

Henry  E.  Rogers,  Defendant.  ) 

And  now  comes  the  above  named  defendant  by  J.  C.  Officer,  his 
attorney,  and  by  virtue  of  the  power  of  attorney  hereto  annexed 
waives  the  service  of  process  upon  the  said  defendant  and  enters  his 
appearance  herein  and  confesses  all  the  allegations  in  the  plaintiff's 
complaint,  and  that  there  is  due  from  the  defendant  to  the  plaintiff 
on  the  note  described  therein  four  thousand  two  hundred  and  seven 
dollars  and  twenty-three  cents,  and  hereby  confesses  and  authorizes 
judgment  for  that  amount,  together  with  costs,  and  now  here  releases 
all  errors  which  may  intervene  in  entering  up  judgment  hereon  and 
in  issuing  execution  on  such  judgment  and  waives  notice  of  the  taxa- 
tion of  said  costs  and  consents  that  the  same  may  be  taxed  and 
allowed  at  the  sum  oi  fourteen  and  three  one-hundredths  dollars. 

J.  C.  Officer,  Defendant's  Attorney^ 

Appraisement  waived."  ant  Richard  Roe,  the  sum  oifve  hundrecT 

Return:     "  Levy  made  on    the   real  dollars.                                    fohn  Doe. 

estate   described   in   the   schedule  an-  Subscribed  and  sworn  to  before  me. 

nexed.     Sale   advertised   according  to  Xh\s  ninth  6siy  ol February,  iSg8. 

law,  and  property  sold  January  26th,  Norton  Porter,  Notary  Public. 

to  Wm.  0.  Leslie,  Esq.,  for  $5'^,  and  ap-  Vernon  County,  IVisconsin."' 

plied  to  the  costs  of  this  writ.     So  an-  Where  affidavit  is  not  made  by  plaintiff" 

swers  R.  Patterson,  Sheriff."  himself,  the  fact  that  it  is  made  on  his 

1.    Wisconsin.  —  Sanb.    &    B.    Anno,  behalf  must  be  stated,  and  the  affidavit 

Stat.  (1889),  §  2894  et  seq.  must  further  show  why  it  is  not  made 

The  Affidavit  of  Plaintiff—  Form  of. —  by   the  plaintiff.     Sloane  v.  Anderson, 

The  affidavit  required  by  the  Wisconsin  57  Wis.    123;    McCabe  v.    Sumner,   40 

statutes  may  be  as  follows:  Wis.  386. 

"State  of  Wisconsin,  )           Affidavit  of  Whether  the  debt  is  due  or  not,  and 

County  of  Vernon,  j      '         Plaintiff.  what  part,  if  any,  is  not  due,  should  be 

•yi?A«  Z>^^,  being  duly  sworn,  says  that  shown   in   the  affidavit,  complaint,  an- 

he  is  the  plaintiff  named  in  the  annexed  swer  and  judgment.     Sloane  v.  Ander- 

complaint;    that   the   contents  of   said  son,  57  Wis.  123, 

complaint  are  known  to  him,  and  that  An  affidavit  which  does  not  state  the- 

the  same  are  true  in  substance  and  in  amount  due,  but  states  that  the  facts 

fact;  that  this  action  is  brought   upon  averred   in   the  complaint  are  true  to 

an  instrument  in  writing  for  the  pay-  the  knowledge  of  the  affiant,  and  the 

ment  of  money  only;  that  the  said  in-  complaint     referred    to    specifies     the 

strument  in  writing  is  in  the  possession  amount  due  on  the  note,  is  probably 

of  said  plaintiff,  and  that  his  knowledge  sufficient.     Rogers  v,  Cherrier,  75  Wis. 

is  derived  from  said  instrument;  that  59. 

the  plaintiff  is  the  legal  holder  of  said  Plaintiff   muat    make  the  affidavit,  it 

instrument  of  writing,  and  that  there  is  seems,  in  Texas.     An  affidavit  made  by 

now  due  upon  said  instrument  of  writ-  his   attorney   is   not  sufficient.     Mont- 

ing  to  the  said  plaintiff,  from  the  defend-  gomery  v.  Barnett,  8  Tex.  144. 

85  Volume  5. 


6058.  CONFESSION  OF  JUDGMENT.  6058. 

3.  By  Corporation. 

Form  No.  6058,' 

(Precedent  in  Sharp  v.  Danville,  etc.,  R.  Co.,  106  N.  Car.  310.) 

State  of  North  Carolina,  )    o  ^     •     /- 
„     , .     ,        ^        ,  '  >  Superior  Court. 

Rockingham  County.         j       ^ 

Thomas  R.  Sharp,  Plaintiff,  ] 

V.  I 

The  Danville,  Mocksville  and  Southwestern  f 

Railroad  Company,  Defendant.  J 

The  Danville,  Mocksville  and  SoutMvestern  Railroad  Company,  by  E. 
C  Winstanley,  secretary  of  said  company,  being  thereunto  duly 
authorized  by  said  company,  hereby  confesses  judgment  in  favor  of 
Thomas  R.  Sharp,  the  plaintiff  above  named,  for  sixteen  thousand  eight 
hundred  and  sixty-seven  dollars  and  sixty  cents,  with  interest  on 
^,017.60  thereof  from  the  Uth  day  of  November,  1S8I,  and  $4,600 
thereof  from  the  36th  day  of  November,  iS85,  until  paid,  [and 
authorizes  the  entry  of  judgment  therefor  against  the  said  Danville, 
Mocksville  and  Southwestern  Railroad  Company  on  this  seventh  day  of 
November,  i8<?5.]2 

This  confession  of  judgment  is  to  secure  the  plaintiff  against  divers 
liabilities  on  behalf  of  the  Danville,  Mocksville  and  Southwestern  Rail- 
road Company,  amounting,  in  the  aggregate,  exclusive  of  interest,  to 
the  principal  sum  above  stated,  the  several  liabilities  arising  upon 
the  following  facts,  to  wit: 

I.  The  said  Thomas  R.  Sharp,  as  president  of  said  company, 
accepted  the  draft  of  Burnhatn,  Parry,  Williams  &*  Co.,  in  the  sum 
of  $8,016.35,  and  indorsed  the  same  individually,  of  which  the  fol- 
lowing is  a  copy,  to  wit:     {Copy  of  draft. ^^ 

The  consideration  of  said  draft  was  the  purchase  money  for  the 
railroad  engine  or  locomotive  "  Lilly  C  Morehead,"  bought  for  use 
upon  roadway  of  said  company,  and  the  same  went  to  protest  at  the 
cost  of  $1.25,  and  on  this  draft  the  drawers  have  brought  suit  in  the 
State  of  Virginia  against  the  Danville,  Mocksville  and  Southwestern  Rail- 
road Company,  and  the  said  Thomas  R.  Sharp  individually,  and  have 
also  brought  suit  in  the  State  of  North  Carolina,  which  is  now  pend- 
ing (coupled  with  an  attachment  of  said  Sharp's  real  estate  in  North 
Carolina^  against  the  said  Thomas  R.  Sharp  individually,  as  indorser 
of  said  draft.* 

1.  North  Carolina. — Code  (1883),  §  and  sixteen  d.o\\a.TS  Sind  thirty- fve  cents, 
571.  See  also  list  of  statutes  cited  value  received,  and  charge  to  account  of 
supra,  note  2,  p.  48.  Burnham,  Parry,  Williams  S^  Co. 

2.  The  words  and  figures  enclosed  by  To  Thos.  R.  Sharp,  Y.s(\.,  President 
[  J  will  not  be  found  in  the  reported  Danville,  Mocksville  and  Southwestern 
case,  but  have  been  added  to  render  Railway, 'Ho.  iij Broadway,  NewYork.^' 
the  form  complete.  {Indorsed"'  Thos.  R.  Sharp.") 

3.  Draft  mentioned  in  text  was  in  words  4.  A  statement  made  to  the  effect  that 
and  figures  following,  to  wit:  "defendant  is  indebted  to  plaintiff  in  a 

"  $S,of6.jj.  sum  certain  arising   from    the    accept- 

Philadelphia,  Oct.  12th,  iSSf.         ance  of  the  draft  of  which  the  following 

Thirty  days   after  date,    pay   to   the     is  a  copy,"  setting  out  a  copy    of   the 

order  of  Thos.  R.  Sharp  eight  thousand    draft,  falls  far  short  of  the  demands  of 

86  Volume  5. 


6058.  CONFESSION  OF  JUDGMENT.  6058. 

2.  On  or  about  the  2Jtth  day  of  October^  i885,  the  said  Thomas  R. 
Sharp  became  individually  liable,  by  indorsement  of  a  draft,  drawn 
by  E.  C.  IVinsianley,  secretary  of  the  said  railroad  company,  drawn 
upon  Thomas  R.  Sharp,  president  of  said  company,  and  by  said 
Thomas  R.  Sharp  individually  indorsed,  and  thereafter  passed  to 
Johnson  cf  Cheek,  bankers,  for  full  value,  who  are  now  the  holders 
thereof.  The  consideration  of  said  draft  was  money  loaned  by 
Johnson  &*  Cheek  upon  said  draft,  so  indorsed,  for  the  use  and 
benefit  of  said  railroad  company,  and  the  same  will  become  due  and 
payable  on  November  26th,  i8S5,  and  the  said  Thomas  R.  Sharp  will 
thereafter  be  under  contingent  liability  to  pay  the  same. 

3.  In  the  month  of  September,  18S6,  in  seventeen  suits  now  pend- 
ing in  the  Superior  Court  of  Rockingham  County,  upon  petitions  for 
recordari  and  supersedeas  in  the  matter  of  y.  Turner  Morehead  &*  Co., 
V.  The  Danville,  Mocksville  and  Southwestern  Railroad  Company,  the 
said  Thomas  R.  Sharp  became  liable  as  surety  to  said  company  in 
seventeen  penal  bonds,  each  in  the  sum  of  two  hundred  and  fifty 
dollars,  required  by  the  court  to  be  filed  by  said  company,  the 
aggregate  of  which  seventeen  penal  bonds  is  the  sum  oi  forty-two  hun- 
dred and  fifty  dollars,  as  may  be  seen  by  reference  to  the  records  of 
the  Superior  Court  of  Rockingham  County,  in  which  said  suits  are 
pending,  and  the  object  of  which  petitions  for  recordari  is  to  prevent 
the  forced  sale  and  sacrifice  of  said  company. 

A  statement  of  said  Thomas  R.  Sharp's  account  against  said  com- 
pany by  reason  of  said  contingent  liability,  duly  sworn  to,  is  hereto 
attached,  and  is  hereby  made  a  part  of  this  statement,  which  said 
exhibit  was,  on  this  7th  day  of  November,  i2>S5,  submitted  to  the 
Board  of  Directors  of  said  company,  and  by  them  approved,  as  show- 
ing the  amount  of  the  said  Thomas  R.  Sharp's  contingent  liability  for 
and  in  behalf  of  said  company,  and  the  said  sum  for  which  entry  of 
judgment  is  hereby  authorized  is  correct,  and  does  not  exceed  the 
amount  of  said  contingent  liabilities. 

Witness,  the  signature  of  E.  C.  Winstanley,  Secretary  of  said  com- 

the  statute.  In  consideration  of  the  fesses  the  cause  of  action  in  the  plain- 
draft,  the  time  and  manner  of  its  tiff's  declaration  aforesaid  mentioned 
creation  should  be  stated.  Davidson  and  set  forth  to  the  extent  and  amount 
V.  Alexander,  84  N.  Car.  625.  hereinafter    mentioned,    and   that   the 

The  confession  and  plea  filed  by  the  cor-  said  plaintiff  hath,  from   the  causes  in 

poration  in  Hackett  v.  Boston,  etc.,  R.  said  declaration  mentioned,  sustained 

Co.,  35  N.  H.  391,  omitting  the  formal  damages  to  the  amount  of  ten  dollars, 

parts,  was  as  follows:  and  no  more;  which  sum  of  ten  dollars 

"The    defendants  come  and  defend  the  said  town   of  Dover   hath   always 

the  wrong  and   injury,  when,  etc.,  and  been  ready  and  willing  to  pay  to   the 

confess   the  plaintiff's  said  action  and  said  plaintiff,  and  bring  the  same  into 

that  he    is  entitled  to  recover  damages  our  court  here,  for  that  purpose;  and 

thereon  to  the  amount  of /Tf/^M/y  dollars  as    to    the    rest    and   residue   of   said 

and  no  more,  and  as  to  the  residue  of  declaration,  and  of  the  causes  of  action 

the  claim    the  defendants  say  they  are  therein  set  forth  and  alleged,   and  all 

not  guilty,"  etc.  damages  therein  claimed  by  said  plain- 

The  municipal  corporation  in  Kelley  v.  tiff,  over  and  above  the  amount  afore- 

Dover,    18   N.   H.   566,  pleaded  as   fol-  said,  they,  the  said  ttown  of  Z>^t/^r,  say 

lows,  omitting  the  formal  parts:  that  they  are  not  guilty  in  manner  and 

"  And  the  said  town  of  Dover  comes  form  as  the  plaintiff  hath  thereof  alleged 

and  defends,  and  when,  etc.,  and  con-  against  them,  the  said  town,"  etc. 

87  Volume  5. 


6059.  CONFESSION  OF  JUDGMENT.  6059. 

pany,  and  the  corporate  seal  thereof,  hereto  affixed,  under  the  specific 
authority  of  the  Board  of  Directors  of  said  company,  duly  granted 
by  resolution,  a  certified  copy  whereof  is  herewith  filed.  This  Nov. 
7,  \^5. 

Danville^  Mocksville  and  S.  JV.  F.  F.  Co. , 

by  E.  C.   Winstanley,  Secretary. 
State  of  North  Carolina,  ) 
Fockingham  County.  J 

Before  me,  John  T.  Fannill,  Clerk  of  the  Superior  Court  of  Fock- 
ingham County,  personally  appeared  E.  C.  Winsianley,  Secretary  of  the 
Danville,  Mocksville  and  Southwestern  Failroad  Company,  who,  being 
duly  sworn,  maketh  oath  that  he  is  the  Secretary  of  said  company, 
and  that  the  statement  above  signed  by  him  is  true. 

Tl{\s  Nmjember  7th,  i885. 

John  T.  Fannill,  C.  S.  C. 

4.  By  Executor. 

Form  No.  6059.' 

In  the  Queen's  Bench  (or  Common  Pleas  or  Exchequer  of  Pleas'). 

Between  Thomas  Davis,  plaintiff,  and 
John  Doe,  executor  of  the  last 
will    and     testament    of   Peter 
Barlow,    deceased,    defendant. 
I  confess  this  action,  and  that  the  plaintiff  hath  sustained  damages 
to  the  amount  of  one  thousand  pounds,  besides  his  costs  and  charges 
{as  between  attorney  and  client)  to  be  taxed  by  one  of  the  masters, 
[and  I  do  also  acknowledge  that  goods  and  chattels  that  were  of  the 
said  Peter  Barlow  at  the  time  of  his  death  of  the  value  of  the  dam- 
ages and  costs  aforesaid,   and   wherewith  I  am    liable   to  pay,  and 
ought  to  have  paid  the  same,  have  come  to  my  hands,  as  executor  as 
aforesaid  to  be  administered,  and  that  I   have   eloined,  wasted  and 
disposed  thereof  to  mine  own  use;]   and  in  case  I  shall  make  default 
in  the  payment  of  the  debt  and  costs  agreed  on   in  this  action,  and 
interest  thereon,  in  manner  following,  that  is  to   say,  {Here  set  out 

1.  Cognovit  by  Executor  Admitting  As-  ered"  {concluding  with  the  judgment  in 

sets,  etc.  —  This  form  is  set  out  in  Chit,  the  usual  manner). 

F.  (1847),  p.  310,  and   may   readily    be  In  Action  on  the  Case.  —  In  Virginia, 

adapted  for  use  in  jurisdictions  where  omitting  the  formal   parts,  the  confes- 

the  common  law  is  the  rule  of  practice,  sion  of  judgment  by  an  executor  may  be 

In  Action  of  Debt.  —  In  Virginia,  omit-  as  follows:     "This  day  came  as  well 

ting  the  formal  parts,  the  confession  of  the    plaintiff    by    his   attorney   as    the 

judgment   by   an  executor  may  be  as  defendant   in    his  own   proper  person, 

follows  :     "This  day  came  as  well  the  and  they  do  agree  that  the  plaintiff  hath 

plaintiff  by  his  attorney  as  the  defend-  sustained  damages  by  occasion  of  the 

ant  in  his  own  proper  person,  and  the  nonperformance     by     the    defendant's 

said  defendant  acknowledges  the  plain-  testator,  Samuel  Short,  of  the  assump- 

tiff's  action  for  the  sum  oi  Jive  hundred  tions  in  the   declaration   mentioned  to 

dollars,  the  debt  in  the  declaration  men-  the  sum  of   five  hundred  dollars,  with 

tioned,  with  interest  thereon  at  the  rate  interest  thereon  at  the  rate  of  six  per 

of  six  per  centum  per  annum  from  the  centum  per  annum  from  the  ninth  day 

ninth  day  of  February,   iSgj,  till  paid,  of  February,  1897,  till  paid,  besides  his 

and  the  costs.      Therefore,  it  is  consid-  costs.      Therefore,  it  is  considered  by 

88  Volume  5. 


6060.  CONFESSION  OF  JUDGMENT.  6060. 

mode  of  payment  agreed  on),  the  plaintiff  shall  be  at  liberty  to  enter  up 
judgment  for  the  said  debt,  interest  and  costs,  or  so  much  thereof  as 
shall  remain  due  at  the  time  of  entering  up  such  judgment,  and  also 
for  the  costs  of  entering  up  such  judgment  and  suing  out  execution 
thereupon,  and  shall  be  at  liberty  to  sue  out  execution  thereon,  together 
with  the  amount  of  sheriff's  poundage,  officers'  fees,  costs  of  levy,  and 
all  other  incidental  expenses,  [and  I  undertake  that  the  plaintiff  may 
in  every  respect  hold  me  as  personally  liable  for  the  said  debt  and 
costs,  and  enter  up  and  enforce  this  judgment  accordingly.]  And  I 
undertake  and  agree  that  it  shall  not  be  necessary  for  the  plaintiff  to 
issue  out  any  writ  or  writs  of  scire  facias  upon  the  said  judgment  for 
the  purpose  of  reviving  the  same,  or  of  suggesting  a  devastavit,  or 
to  bring  any  action  upon  that  judgment  in  order  to  enforce  satisfac- 
tion thereof,  and  that  I  will  not  file  any  bill  in  equity,  nor  sue  out 
any  writ  of  error,  nor  do  any  other  act,  matter  or  thing,  whereby  the 
said  plaintiff  may  be  delayed  from  entering  up  such  judgment  and 
suing  cut  execution   upon  default  made  as   aforesaid.     Dated  this 

day  of ,  A,  D. . 

JoAn  Doe. 
Signed  {concluding  as  in  Form  No.  6O48). 

5.  By  Guardian  of  Lunatic. 

Form  No.  6060.' 
(Precedent  in  McAden  v.  Hooker,  74  N.  Car,  26.) 

7?.  V.  McAden  vs.  O.  Hooker,  )  In  the  Superior  Court,  Orange  County. 
guardian  of  J.  Turner,  Sen.,  >  Statement  and  affidavit  and  confes- 
and  J.  Turner,  Jr.  )        sion  of  judgment. 

The  defendants  allege  : 

1.  That  Josiah  Turner,  Sen.,  is  a  lunatic,  and  O.  Hooker  is  his 
guardian. 

2.  That  there  is  due  the  plaintiff  from  these  defendants,  by  bond, 
five  thousand  dollars,  with  interest  at  eight  per  cent,  from  the  26th  of 
October,  1S68. 

3.  That  the  money,  $5,000,  was  borrowed  from  the  assignee  of  the 
plaintiff  by  the  defendants,  and  a  bond  was  given  therefor,  and  is 
justly  due  the  plaintiff. 

4.  These  defendants  authorize  the  entry  of  judgment  against  them 
lor  five  thousand  dollars,  with  interest  thereon  from  the  26th  October, 
1868. 

Josiah  Turner,  Jr. 
O.  Hooker,  Guardian. 
[State  of  North  Carolina, ) 
Orange  County. J^  ) 

Personally  appeared  before  me,  George  Laws,  Clerk  of  the  Superior 
Court   of    Orange,  J.   Turner,  Jr.,  and    O.  Hooker,  guardian   of  J. 

the  court"  {concluding  with  the  judgment  2.  The  words  enclosed  by  [  ]  are  not 
in  the  usual  manner).  found  in  the  reported  case,  but  are  in- 

1.  North  Carolina. — Code  (1883),  §  571.     serted  to  complete  the  form.     The  date 
See  also  list  of  statutes  cited  supra,  note     of  the  proceedings  does  not  appear. 
2,  p.  48. 

89  Volume  5. 


6061.  CONFESSION  OF  JUDGMENT.  6061. 

Turner^  Sen.^  who  being  duly  sworn,  maketh  oath  that  the  above 
statement  is  true. 

Josiah  Turner^  Jr. 
O.  Hooker,  Guardian. 

[Dated  this day  of ,  i8 — . 

George  Laws,  C.  S.  C.]^ 


III.  RECOGNIZANCE  FOR  DEBT. 

Form  No.  6061 .» 

(Mass.  Pub.  Stat.  (1882),  p.  1107,  §  2.) 

Worcester,  ss. 

Be  it  remembered  that  on  this  thirteenth  day  of  December,  i897, 
Richard  Roe,  of  Worcester  county,  personally  appeared  before  the 
Superior  Court  now  held  at  Worcester  within  and  for  the  county  of 
Worcester  {ox  ^'•\i&iox^  Calvin  Clark,  the  clerk  of  the  Superior  Court 
for  the  county  of  Worcester"^,^  and  acknowledged  himself  indebted 
to  John  Doe,  of  Worcester  county,  in  the  sum  of  three  hundred  dollars 
to  be  paid  to  said  John  Doe  on  Xkit,  first  day  oi December,  i897  (or  "in 
tiao  years,  or  in  six  months,  from  this  day"),  with  interest  from  this 
day;*  and,  if  not  then  paid,  to  be  levied  upon  his  goods,  chattels, 
lands  and  tenements,  and,  for  want  thereof,  upon  his  body.  In  wit- 
ness whereof  said  Richard  Roe  hath  hereto  set  his  hand. 

Richard  Roe. 
Calvin  Clark  Clerk  of  the  Superior  Court 

for  the  County  of  Worcester.^ 


1.  The  words  enclosed  by  [  ]  are  not  taken  in  term  time  or  vacation  and 
found  in  the  reported  case,  but  are  in-  shall  be  recorded  at  length  by  him 
serted  to  complete  the  form.  The  date  among  the  records  of  the  court.  Mass. 
of  the  proceedings  does  not  appear.  Pub.  Stat.  (1882),  c.  193,  §  4. 

2.  Recognizance  for  Payment  of  Debt  —  If  the  contisee  dies  before  the  debt  is 
Massachusetts.  —  Any  person  who  is  by  paid,  his  executor  or  administrator 
law  capable  of  binding  himself  by  a  may,  upon  exhibiting  to  the  clerk  or 
common  bond  may  enter  into  a  recog-  justice  his  letters  testamentary  or  of 
zance  for  the  payment  of  a  debt,  and  administration,  sue  out  execution  in 
may  thereby  subject  his  person,  goods  the  same  manner  as  the  conusee  might 
and  estate  to  be  taken  on  execution,  have  done,  and  the  form  of  the  execu- 
Mass.  Pub.  Stat.  (1882),  c.  193,  §  i.  tion  shall  be  altered  accordingly.  Mass. 

8.  May  be  taken  before  superior  cotirt  in  Pub.  Stat.  (1882),  c.  193,  §  9. 
any  county  in  term  time,  or  before  the  Execution  shall  recite  the  recognizance, 
clerk  of  said  court  in  vacation.     Mass.  state  the  amount  then  due,  and  other- 
Pub.  Stat.  (1882),  c.  193,  §  2.  wise  be  in  the  usual  form  of  an  execu- 

4.  Clause  as  to  the  payment  of  interest  tion  on  a  judgment  for  debt.  Such 
may  be  altered  or  wholly  omitted,  ac-  execution  may  be  issued  by  the  clerk 
cording  to  the  agreement  of  the  parties;  without  any  special  order  of  the  court, 
but  interest  shall  always  be  allowed  for  Mass.  Pub.  Stat.  (1882),  c.  193,  §  7- 
any  delay  after  the  time  of  payment,  Maine  Stat.  (1883),  c.  112,  §  i,  pro- 
unless  the  recognizance  contains  an  ex-  vided  for  a  somewhat  similar  recogniz- 
press  agreement  to  the  contrary.  Mass.  ance  and  furnished  a  statutory  form 
Pub.  Stat.  (1882),  c.  193,  §  3.  for  the  same.     This  statute,  however, 

5.  Shallbeattestedbythe  clerk,  whether  was  repealed  by  Me.  L.  (1895),  c.  83. 

90  Volume  5. 


6062.  CONFESSION  OF  JUDGMENT.  6063. 

IV.  JUDGMENT.! 

I.  Upon  Confession  of  Defendant. 

a.  In  Courts  of  Record. 

(i)  In  General. 

Form  No.  6062.' 

Dale  Comity.      ^  ^'"^'  [  ^*^^^^^  Court,  December  Term,.  i897. 

John  Doe 

against 

Richard  Roe. 

And  now  at  this  day  comes  the  ^\zSxs.\\ii  John  Doe,  \iy  his  attorney, 
and  comes  also  the  defendant  Richard  Roe  in  his  own  proper  person, 
and  the  said  defendant  confessing  that  there  is  due  from  him  to  the 
said  John  Doe  the  sum  of  fifty  dollars  [as  the  plaintiff  in  his  com- 
plaint claims],^  and  authorizes  judgment  to  be  entered  against  him 
in  favor  of  the  said  John  Doe  for  that  sum.  It  is  therefore  con- 
sidered and  adjudged  by  the  court  that  the  plaintiff  recover  against 
the  said  defendant  the  sum  of  fifty  dollars  aforesaid  by  him  con- 
fessed, and  the  further  sum  of  ten  dollars  costs,  and  for  which  let 
execution  issue. 

Form  No.  6063.* 

In  the  Superior  Court  of  the  City  and  County  of  San  Francisco., 
State  of  California. 

1.  For  forms  of  judgment,  generally,  Stipulating  Against  Issuance  of  Exeen- 

consult  the  title  Judgments.  tion. — A  stipulation    in    the  confession 

Pennsylvania.  —  In  James  v.  Crown-  that  no  execution  shall  issue  within  a 

over,   (Pa.    1886)   6   Atl.    Rep.    42,  the  time  specified  does  not  necessarily  viti- 

defendant    authorized    and    confessed  ate    the    judgment.     Merchants     Nat. 

judgment  in  a  promissory  note,  as  fol-  Bank  v.   Newton  Cotton  Mills,  115  N. 

lows:  Car.  507. 

^'Mifflintown,  Pa.,  October  /,  i%Sj.  Judgment  with  stay  of  execution  is 

On  January   /,    ii86,   after    date,  ll  given  in  Robinson's  F.,  p.  100,  thus: 

promise  to    pay    to   the  order  of  John  {After  the  Judgment  add  these  words/) 

Crownover  %54S,   without    defalcation,  "'and  the  plaintiff  agrees  to  stay  the  exe- 

value  rec'd,  and  waiving  the  benefit  of  cution  of  this  judgment  until  the_/frj-^ 

all  laws  exempting  property  from  levy  day  oi  July,  \Zg8." 

and   sale    by   execution,    and    confess  2.  Alabama.  —  See    list    of    statutes 

judgment  for  the  said  amount  of  %S4S-  cited  supra,  note  2,  p.  48,  for  similar 

Watkin  James."  provisions  in  other  states. 

The  note  not  being  paid  at  maturity,  3.  If  no  suit  has  been  instituted,  in- 
the  attorneys  of  John  Crownover,  by  sert  in  place  of  the  words  "  as  the  plain- 
virtue  thereof,  appeared  for  James,  and  tiff  in  his  complaint  claims  "  the  words 
confessed  judgment  against  him,  where-  "  due  by  account,"  or  as  the  case  may 
upon  the  prothonotary   made   the  fol-  be. 

lowing  entry  on  the  record  :     "  I  here-  4.  California.  —  Code      Civ.      Proc. 

by  enter  judgment  against  ^f^rt/ztj^yaw^  (1897),  §  1132.     See  also  list  of  statute? 

for  %S4_s,  which  entry  is  founded  on  a  cited  supra,  note  2,   p.  48,   for  similar 

judgment    note    dated   October  i,   \%8s,  provisions    in   Idaho,    Iowa,    Montana, 

and  payable  yawwary /,  l8<$i6,  with  costs  Nevada,    South    Carolina,    Utah,   Wash- 

of  suit,  and  waiving  exemption."  ington,  and  other  states. 

91  Volume  5. 


6064.  CONFESSION  OF  JUDGMENT.  6065. 

John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

In  this  action  the  defendant,  Richard  Roe, "^  having  filed  his  con- 
fession of  judgment  wherein  he  authorizes  and  consents  that  judg- 
ment be  entered  in  favor  of  the  plaintiff,  John  Doe,  for  the  sum  of 
one  thousand  dollars;  it  is  therefore,  by  reason  of  the  law  in  the 
premises  aforesaid,  ordered,  adjudged  and  decreed  tha.t  John  Doe, 
the  said  plaintiff,  do  have  and  recover  of  and  from  Richard  Roe,  the 
said  defendant,  the  sum  of  one  thousand  dollars,  with  interest  thereon 
at  the  rate  of  six  per  cent,  from  the  date  hereof  until  paid,  together 
with  the  sum  of  ten  dollars,  costs  herein. 

Calvin  Clark,  Clerk, 
By  Daniel  Clark,  Deputy  Clerk. 
Dated  the  ninth  day  of  February,  1 857. 

Form  No.  6064.' 

In  the  District  Court  of  the  First  Judicial  District  for  the  State 
of  Idaho,  in  and  for  the  County  of  Shoshone. 
In  the  matter  of  the  Judgment^ 
by  Confession 
Richard  Roe  \ 

to 
John  Doe. 

In  this  action,  the  defendant  having  filed  his  confession  of  judg- 
ment {continuing  and  concluding  as  in  Form  No.  6063^. 

Form  No.  6065.' 
District  Court,  Second  Judicial  District,  County  of  Ramsey. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

On  filing  the  within  confession  and  statement  made  by  Richard 
Roe,  it  is  adjudged  by  the  court  that  John  Doe,  in  whose  favor  said 

1.  Record  must  show  that  all  of  the  lars,  with  three  dollars  costs  and  fifteen 
defendants  who  are  to  be  bound  have  dollars  disbursements,  making  in  all 
actually  confessed  judgment,  or  that  the  sum  of  five  hundred  and  eighteen 
some  of  them  particularly  named  have  dollars.  Calvin  Clark,  Clerk, 
done  so.  EUedge  v.  Bowman,  5  J.  J.  Oliver  Ellsworth,  Plaintiff's  Attorney. 
Marsh.  (Ky.)  595.  Dated    the    ninth    day    of   February, 

2.  Idaho.  —  Rev.  Stat.  (1897),  §  5060.  \lg8." 

3.  Minnesota. — Stat.   (1894),   §   6077.  In  South  Carolina,  thus: 

See  also   list   of    statutes   cited  supra,         "  The  State  of  South  Carolina,  County 

note  2,  p.  48.  of  York. 

Similar  judgments  are  indorsed  upon         John  Doe,  plaintiff, 
confessions  in  code  states  of  the  New  against 

York   class;     thus    in   New    York   the  Richard  Roe,  defendant, 
judgment,  omitting   the  formal  parts,         On  filing  the  within    statement  and 

may  be  as  follows:  confession,  it  is  adjudged  by  the  court 

"  On  filing  the  within  statement  and  that   the   plaintiff   do   recover   against 

confession,  it  is  adjudged  by  the  court  the  defendant  the  sum  of  five  hundred 

that  the  plaintiff  do  recover  against  the  dollars,  with  five  dollars  costs  and  fif- 

defendant  the  sum  oi  five  hundred  &o\-  teen  dollars  disbursements,  making  in 

92  Volume  5. 


6066.  CONFESSION  OF  JUDGMENT.  6066. 

confession  is  made,  recover  against  the  said  Richard Roe^  the  sum  of 
five  hundred  dollars,  and  ten  dollars  costs  and  disbursements,  amount- 
ing in  all  to  the  sum  oi  five  hundred  and  thirty  dollars. 
Dated  the  ninth  day  of  February,  i898.^ 

Calvin  Clark,  Clerk  of  District  Court. 

Form  No.  6066.* 

In  the  Circuit  Court  of  Jackson  County,  Missouri,  at  Kansas  City^ 
Monday,  December  5,  a.  d.  i8^7. 
Mary  Samter,  plaintiff,  \ 

against  \No.  10,860. 

Max  Blank,  defendant.  ) 

Now  at  this  day  comes  plaintiff,  by  attorney,  and  files  a  statement 
in  writing  for  confession  of  judgment  made  and  signed  by  the  defend- 
ant and  verified  by  his  affidavit  to  the  following  effect:  Stating  that 
the  amount  of  $512.45  for  which  judgment  may  be  rendered,  and 
authorizing  the  entry  of  judgment  thereon,  and  stating  concisely  the 
facts  out  of  which  the  money  due  or  to  become  due  arose,  and  show- 
ing that  the  sum  confessed  therefor  is  justly  due  or  to  become  due. 
And  the  court  being  satisfied  that  the  defendant  executed  the  said 
statement  in  writing  and  made  the  affidavit  required  thereto,  it  is, 
therefore,  considered  and  adjudged  by  the  court  that  the  said  plain- 
tiff have  and  recover  from  the  said  defendant  the  sum  so  confessed, 
with  interest  thereon  at  the  rate  of  ten  per  cent,  per  annum,  the  rate 
specified  in  the  notes  mentioned  in  the  statement,  together  with  the 
costs  of  the  suit  incurred  and  expended,  and  have  thereof  execution. 

all  the  sum  oi  Jive  hundred  and  twenty  When  the  action  is   against    one   or 

dollars.                    Calvin  Clark,  Clerk.  more  persons  jointly  liable,  judgment 

Oliver  Ellsivorth,  Plaintiff's  Attorney,  may  be  given  on  the  confession  of  one 

Dated    the   ninth    day   of  February,  or  more  defendants  against  all  the  de- 

iZg8."  fendants    thus  jointly   liable,   whether 

In  Weinges  v.  Cash,  15  S.  Car.  48,  in-  such  defendants  have  been  served  with 

dorsement   appeared    upon    the  paper  the   summons   or   not,   to  be  enforced 

containing  the  statement  and  affidavit  only  against  their  joint  property,  and 

as  follows:   "  Allan  E.  Cash  v.  Robert  G.  against  the  joint  and  separate  property 

Ellerbe.     Prince,    Plaintiff's    Attorney,  of  the  defendant  making  the  confession. 

Confession.      South    Carolina,    Chester-  Hill's  Anno.  Laws  Oregon  (1892),  §  252. 

field  County.     Roll  844.     On  filing  the  See   also   list   of   statutes   cited  supra, 

within  statement  and  confession,  it  is  note  2,  p.  48. 

adjudged  by  the  court  that  the  plain-  2.  Time   of  Entering.  —  At  any  time 

tiff   do  recover  against  the  defendant  within  three  years  after  the  statement 

the  sum  of  yf/V^^w  Mt7Mjaw</dollars,  with  is   verified   it    may   be    filed   with   the 

^t'f  dollars  costs  and  yf//^f;»  dollars  dis-  county    clerk.      Thereupon    the   clerk 

bursements,  making  the  sum  oi  fifteen  must  enter  in  like  manner,  as  a  judg- 

thousand  and  twetity-five  dollars.     28th  ment  is  entered  in  an  action,  a  judg- 

January,  1879.  ment  for  the  sum  confessed,  with  costs, 

Thomas  F.  Malloy,  Clerk.  which  he  must  tax,  to  the  amount  of 

Judgment   signed   and  entered   28th  fifteen    dollars,  besides  disbursements 

January,  1879.  taxable  in  an  action.     But  a  judgment 

Thomas  F.  Af alloy,  clerk."  shall  not  be  entered  upon  such  a  state- 

1.  Where  all  the  joint  debtors  do  not  ment  after  the  defendant's  death.  Birds, 

unite  in    the   confession   of  judgment  Rev.  Stat.  N.  Y.  (1896),  §  74. 

for  a  joint  debt,  the  judgment  must  be  S.  Missouri. — Rev.  Stat.  (18S9), §2229. 

entered    against   those   only  who  con-  See  list  of  statutes  cited  supra,  note 

fessed    it.      Birds.    Rev.    Stat.    N.   Y.  2,  p.  48,  for  similar  provisions  in  other 

(1896),  p.  1740,  §  77.  states. 

»8  Volume  5. 


6067.  CONFESSION  OF  JUDGMENT.  6068. 

Form  No.  6067.' 

In  the  District  Court  of  Colfax  County,  in  the  State  of  Nebraska. 

John  Doe,  plaintiff,       ) 

against  (■  Judgment. 

Richard  Roe,  defendant.  ) 

Now  on  this  ninth  day  oi  February,  iS98,  comes  the  plaintiff  by  his 
attorney;  also  comes  Jeremiah  Mason,  one  of  the  attorneys  of  this 
court,  on  behalf  of  the  defendant,  Richard  Roe,  and  by  virtue  of  a 
warrant  of  attorney  for  that  purpose  duly  executed  by  the  said  Richard 
Roe,  in  this  action  filed  and  now  produced  to  the  court,  and  waives 
the  issuing  and  serving  of  process,  and,  with  the  consent  of  the  plain- 
tiff, confesses  that  the  said  Richard  Roe  is  justly  indebted  to  the  said 
plaintiff  in  the  sum  oi  five  hundred  ^oWdSs,  with  interest  thereon  at 
the  rate  of  six  per  cent,  per  annum  from  the  ninth  day  of  February, 
iS97,  as  claimed  in  the  petition. 

It  is  therefore  considered  and  adjudged  by  the  court  that  the  plain- 
tiff yi?^«  Doe  recover  of  and  from  the  defendant  Richard  Roe  said  sum 
oi  five  hundred  dollars,  with  interest  thereon  at  the  rate  of  six  per 
cent,  per  annum  from  the  ninth  day  of  February,  iS97,  together  with 
his  costs  herein  expended,  taxed  at  ten  dollars. 

John  Marshall,  Judge. 

Form  No.  6068.* 

(Precedent  in  Sharp  v.  Danville,  etc.,  R.  Co.,  106  N.  Car.  313.) 

State  of  North  Carolina,  )  c  ^     •     /^       *. 
D     7  •     i       r-        4.  \  Superior  Court. 

Rockingham  County,         )       ^ 

Thomas  R.  Sharp,  Plaintiff, 

v.  \  Judgment. 

The  Danville,  M.  and  S.  IV.  R.  R.  Co.,  Deft. 

On  filing  the  foregoing  statement  and  confession,  duly  verified, 
together  with  the  exhibits  therein  referred  to,  it  is  ordered  and  ad- 
judged by  the  court  that  the  plaintiff,  Thos.  R.  Sharp,  do  recover 
against  the  defendant.  The  Danville,  Mocksville  and  Southwestern  Rail- 
road Company,  the  sum  of  sixteen  thousand  eight  hundred  and  sixty-seven 
dollars  and  sixty  cents,  with  interest  on  ^,017.60  thereof  from  the 
l^th  day  oi November,  1S8I,  and  on  ^,600  thereof  from  the  26th  day 

1.  Nebraska.  —  Every  attorney  who  "Upon  filing  the  foregoing  state- 
shall  confess  judgment  in  any  cause  ment  and  confession,  it  is  ordered  and 
shall,  at  the  time  of  making  such  con-  adjudged  by  the  court  that  the  plaintiff, 
fession,  produce  the  warrant  of  attor-  The  Merchants  National  Bank  of  Rich- 
ney  for  making  the  same  to  the  court,  mond,  Va.,  do  recover  of  the  defendant, 
and  the  original,  or  a  copy  thereof,  shall  The  Newton  Cotton  Mills,  the  sum  of 
be  filed  with  the  clerk.  Neb.  Comp.  five  thousand  three  hundred  and  seventy- 
Stat.  (1897),  §  6015.  See  also  list  of  one  dollars  and  sixty  cents,  with  inter- 
statutes  cited  supra,  note  2,  p.  48.  est  at  8  per  cent,   from  July  iq,  ligj, 

2.  North   Carolina. — Code   (1883),    §  and  costs  of  action. 

570.      See    also   list   of    statutes  cited  J.  F.  Herman,  Clerk  Superior  Court. 

supra,  note  2,  p.  48.  J^ty  j}i,  iBgj." 

Precedent  of    such  a    judgment    in  For  other  precedents  consult  McAden 

Merchants  Nat.  Bank  v.  Newton  Cot-  v.  Hooker,  74  N.  Car.  26;  Uzzle  z/.Vin- 

ton  Mills,  115  N.  Car.  521,  was  as  fol-  son,  iii  N.  Car.  139. 
lows: 

94  Volume  5. 


6069.  CONFESSION  OF  JUDGMENT.  6070. 

oi  November,  iS85,  until  paid,  according  to  the  terms  of  said  con- 
fession, as  a  security  for  the  plaintiff's  contingent  liability  in  said 
amount,  together  with  $5  cost  thereof  [and  $16  disbursements]. ^ 

yoAn  T.  Pannill,  C.  S.  C. 
This  November  7th,  i&85. 

Form  No.  6069.' 

C?untf  Z'^Burfefgh^'"'  \  ^^-     ^"  ^''^''''^  ^O"""^'  ^'''^^'  J"^^^^^^  District. 

John  Doe,  plaintiff,      ) 

against  >•  Judgment  on  Confession. 

Richard  Roe,  defendant.  ) 

Whereas  the  defendant  herein,  Richard  Roe,  has,  by  his  written 
statement  of  confession,  duly  verified  by  his  own  signature  and  oath, 
confessed  that  he  is  justly  indebted  to  the  said  plaintiff  in  the  sum  of 
two  hundred  and  fifty  doWsLTS,  and  whereas  the  court,  upon  reading  the 
said  statement  and  confession,  has  ordered  that  judgment  be  entered 
by  the  clerk  in  accordance  therewith,  and  said  confession  of  judg- 
ment having  been  duly  filed. 

Now  therefore,  on  motion  of  Oliver  Ellsworth,  attorney  for  said 
plaintiff,  it  is  ordered  and  adjudged  that  the  said  plaintiff  do  have 
and  recover  of  and  from  the  said  defendant,  Richard  Roe,  the  said 
sum  oi  two  hundred  and  fifty  dollars,  together  With,  forty-five  dollars  for 
costs  and  disbursements,  amounting  in  the  whole  to  the  sum  of  two 
hundred  and  ninety-five  dollars. 

Witness,  Hon.  John  Marshall,  judge  of  said  court,  and  my  hand  and 
the  seal  of  said  court,  this/^«//;  day  oi  June,  a.  d.  i2>97. 

Calvin  Clark,  clerk. 

Form  No.  6070.' 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

This  day  came  as  well  the  plaintiff  by  his  attorney  as  the  defend- 
ant in  his  own  proper  person,  and  the  said  defendant  acknowledges 
the  plaintiff's  action  for  the  debt  and  interest  in  the  said  writ  men- 
tioned and  the  costs.  Therefore  it  is  considered  that  the  said  plain- 
tiff recover  against  the  said  defendant  the  sum  oi  five  hundred  doWsiVS, 
with  interest  thereon  to  be  computed  after  the  rate  of  six  per  cen- 
tum per  annum  from  the  ninth  day  of  February,  iB97,  until  paid,  and 
his  costs  by  him  about  his  suit  in  this  behalf  expended  and  the  said 
defendant  in  mercy,  etc.  f 

1.  Disbarsements  should  be  included  3.  In  Virginia  and  West  Virginia,  in 
in  the  judgment.  The  words  enclosed  the  clerk's  office,  judgment  upon  confes- 
by  [  ]  are  not  found  in  the  reported  sion  may  be  entered  Va.  Code  (1887), 
case,  but  are  added  to  complete  the  g  3283;  W.  Va.  Code  (1887),  p.  787,  §  43. 
form.  These  judgments  may    be   modeled 

2.  North  Dakota.  —  Rev.  Codes  (1895),  after  the  forms  of  the  common-law 
§6132.  judgments  by  cognovit,  given  in  Form 

South  Dakota.  —  Dak.  Comp,  Laws  No.  6071  and  the  notes  thereto.  See 
(1887),  §  5537^'/ J*?^./  see  also  list  of  stat-  also  Robinson's  F.  (Va.),  pp.  7,  97-100; 
utes  cited  JM/ra,  note  2,  p.  48.  Sands'  F.  (Va.),  pp.   291-295,499,   500. 

95  Volume  5. 


6071. 


CONFESSION  OF  JUDGMENT. 


6071. 


(2)  By  Cognovit  at  Common  Law.i 

Form  No.  6071.' 

In  the  Queen's  Bench  (or  Common  Pleas  or  Exchequer  of  Pleas'). 

On  the day  of ,  a.  d. {date  ojf  the  declaration^ 

to  wit,     JohnDoe^  hy  Oliver  Ellsworth.,  his  attorney,  {etc.) 

proceed  to  the  end  of  the  declaration.,  and  then.,  on  a  new  line.,  thus:) 

And  on  the day  of ,  a,  d. {day  of  signing  judg- 
ment) the  defendant  in  his  proper  person  says,  that  he  cannot  deny 


In  Covenant,  the  judgment  may  be  as 
follows;  (Title  of  cause  as  in  Form  No. 
6070.)  "  This  day  came  as  well  the  plain- 
tiff by  his  attorney  as  the  defendant  in 
his  own  proper  person,  and  they  do 
agree  that  the  plaintiff  hath  sustained 
damages  by  occasion  of  the  defendant's 
breach  of  his  covenant  in  the  said  writ 
mentioned  to  fve  hundred  Ao\\a.rs,  with 
interest  on  the  said  damages  to  be  com- 
puted at  the  rate  of  six  per  centum  per 
annum  from  the  ninth  day  of  February, 
i8gy,  until  paid,  besides  his  costs;  there- 
fore "   {concluding  as  in  Form  No.  6oyo). 

If  defendant  arrested  was  surrendered 
by  bail,  after  thef  add  these  words: 
"  Whereupon  Samuel  Short,  the  bail  of 
the  said  defendant,  surrendered  him  to 
the  custody  of  the  sheriff  oi  Albemarle 
county,  now  here  present;  therefore,  the 
said  Samuel  Short,  from  his  undertak- 
ing as  bail  as  aforesaid,  is  discharged, 
and  on  the  prayer  of  the  plaintiff  the 
said  defendant  is  committed  to  the 
custody  of  the  sheriff  of  this  county,  to 
remain  therein  until  he  shall  have  satis- 
fied this  judgment  or  shall  otherwise  be 
discharged  by  due  course  of  law." 

If  defendant  arrested  is  not  prayed  into 
custody,  the  judgment  may  be  as  follows: 
{Title  of  cause  as  in  Form  No.  6070.) 
"The  defendant,  being  arrested  and  in 
the  custody  of  the  sheriff  of  Albemarle 
county  upon  a  writ  of  capias  ad  respon- 
dendum issued  herein,  acknowledges 
{^continuing  as  in  Form  No.  6070  to  f). 
And  the  defendant  is  not  prayed  into 
custody,  and  with  the  consent  of  the 
plaintiff  is  discharged  therefrom." 

On  scire  facias,  the  judgment  may  be 
as  follows:  {Title  of  cause  as  in  Form 
No.  6070.)  "This  day  came  the  parties 
by  their  attorneys,  and  by  their  mutual 
consent  it  is  considered  by  the  court  that 
the  plaintiff  may  have  execution  ior  five 
hundred  dollars,  the  damages  and  costs 
in  the  writ  aforesaid  specified,  and  also 
that  the  plaintiff  recover  against  the 
defendant  his  costs  by  him  expended  in 
suing  out  and  prosecuting  this  writ." 


1.  A  cognovit  is  an  unsealed  confession  of 

judgment  given  to  plaintiff  after  suit  is 
brought.  And.  L.  Diet.,  citing  3  Bl. 
Com.  397. 

2.  Judgment  by  cognovit,  as  set  out  in 
the  text  in  Form  No.  6071,  is  in  Chit. 
F.  (1847),  p.  310,  and  may  readily  be 
adapted  to  use  in  such  jurisdictions  as 
follow  the  common-law  practice. 

In  assumpsit,  after  issue,  with  a  relicta 
verificatione,  the  judgment  by  cognovit 
as  set  out  in  Chit.  F.  (1847),  p.  311,  is  as 
follows:  {Proceed  to  the  end  of  the  issue  in 
the  usual  manner,  and  then  thus:)  "  At 
which  day  come  here,  as  well  the  plain- 
tiff by  his  attorney  aforesaid  as  the 
defendant  in  his  own  proper  person,  and 
hereupon  the  defendant,  relinquishing 
his  said  plea  by  him  above  pleaded, 
saith  that  he  cannot  deny  the  action  of 
the  plaintiff,  nor  but  that  the  defendant 
did  promise  "  {concluding  as  in  Form 
No.  6071). 

In  debt  on  bond,  the  judgment  by  cog- 
novit as  set  out  in  Chit.  F.  (1847),  p. 
311,  is  as  follows:  {Proceed  as  in  Form 
No.  607  T  to  *;  then  add:)  "nor  but  the 
said  writing  obligatory  is  the  deed  of 
the  defendant,  nor  but  that  he  owes  to 
the  plaintiff  the  said  sum  of  £1,000  above 
demanded,  in  the  manner  and  form  as 
the  plaintiff  hath  above  alleged.  There- 
fore it  is  considered  that  the  plaintiff 
do  recover  against  the  defendant  his 
said  debt,  and  also  £2j  for  his  damages, 
which  he  hath  sustained,  as  well  on 
occasion  of  the  detaining  the  said  debt 
as  for  his  costs  and  charges  by  him 
about  his  suit  in  this  behalf  expended, 
by  the  court  here  adjudged  to  the  plain- 
tiff, and  with  his  assent:  and  the  defend- 
ant in  mercy,  etc"  {concluding  as  in 
Form  No.  6071). 

In  Debt,  as  to  part  with  remittitur  as  to 
residue,  the  judgment  by  cognovit  as  set 
out  in  Chit.  F.  (i847),p.  311,  is  as  follows: 
{Proceed  as  in  Form  No.  6071  to  *;  then 
add:)  "nor  but  that  he  the  defendant 
does  owe  to  the  plaintiff  the  sum  of 
£joo,  parcel  of  the  said  sum  above 
96  Volume  5. 


6072.  '  CONFESSION  OF  JUDGMENT.  6072. 

the  action  of  the  plaintiff,  nor  but  that  he  the  defendant  did  promise 
in  manner  and  form  as  the  plaintiff  hath  above  alleged;*  nor  but  that 
the  plaintiff  hath  sustained  damage,  on  occasion  of  the  not  perform- 
ing of  the  said  promises  in  the  said  declaration  mentioned,  to  jQl,000^ 
as  by  the  said  declaration  is  above  alleged:  And  hereupon  the  plain- 
tiff prays  judgment,  and  his  damages  so  acknowledged,  together  with 
his  costs  and  charges  by  him  about  his  suit  in  this  behalf  expended, 
to  be  adjudged  by  him,  etc. :  Therefore  it  is  considered  that  the  plain- 
tiff do  recover  against  the  defendant  his  damages  aforesaid  to  jQl,000 
in  form  aforesaid  acknowledged,  and  also  jQ25  for  his  said  costs  and 
charges  by  the  court  here  adjudged  to  the  plaintiff,  and  with  his 
assent;  which  said  damages,  costs  and  charges,  in  the  whole,  amount 
to  jQl,025;  and  the  said  defendant  in  mercy,  etc. 

(In  the  margin  of  the  roll,  opposite  the  words  "  Therefore  it  is  con- 
sidered," «'r//<?  "Judgment  signed  the day  of ,  i8 — ;" 

also  in  the  margin  opposite  the  words  "mercy,  etc.,"  at  the  end,  write 
"Mercy.") 

b.  Before  Justice  of  the  Peace. 

Form  No.  6072.' 
T      't        f  A   '  )  ^^^o^^  Abraham  Kent,  a  Justice  of  the  Peace 

^  .  t  r^-r^  '  ?•  within  and  for  the  said  county,  the  twentieth 
County  oiGtla.  J      A^y  oi  December,  xWl. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

This  day  came  the  above  named  plaintiff,  by  his  attorney  Jeremiah 
Mason,  and  also  comes  the  above  named  defendant  Richard  Roe,  in 
his  own  proper  person,  and  acknowledges  the  plaintiff's  cause  of 
action,  and  that  he  is  justly  indebted  to  the  said  plaintiff  in  the 

demanded:     And  upon  this  the  plain-  etc.,  and  the  damages  aforesaid  in  form 

tiff  freely  here  in  court  remits  to  the  aforesaid  remitted,  etc."  (concluding  as 

defendant  the  sum  of  £joo,  residue  of  in  Form  A'o.  6071). 
the  said  sum  above  demanded,  and  all        In    debt,    after    issue,  with    a    relieta 

damages  by  him  sustained  on  occasion  verificatione,  the   judgment    by  cogno- 

of   the  detention   of   the  said   sum   of  vit  given  in  Chit.  F.  (1847),  p.  312,  is  as 

£500,   residue,    etc.,   and    prays   judg-  follows:     {Proceed  to   the  end  of  issue 

ment  for  the  said  debt  of  fjoo,  parcel,  in   the  usual  manner,    and   then    add:) 

etc.,  so  acknowledged  as  aforesaid,  to-  "At  which    day    come   here    as    well 

gether  with  his  costs  and  charges  by  the  plaintiff  by  his  attorney  aforesaid 

him  about  his  suit  in  this   behalf  ex-  as    the    defendant  in    his   own  proper 

pended,   to   be   adjudged  to  him,  etc.  person;  and   hereupon    the  defendant. 

Therefore    it    is    considered    that    the  relinquishing    his    said   plea    by   him 

plaintiff  do  recover  against  the  defend-  above    pleaded,    says   that   he   cannot 

ant  the  debt   of  £joo,  parcel,    etc.,  in  deny   the   action  of   the   plaintiff,   nor 

form  aforesaid  acknowledged,  and  also  but"  (concluding  as  in  judgment  by  cogno- 

£2j   for  his   damages,   which   he  hath  vit  in  debt  on  bond  as  set  out  supra  this 

sustained   as   well   on    occasion  of  the  note). 

detaining   the    said    debt   of    £joo  so         I.Arizona.  —  Rev.  Stat.  (l887),§  1444. 

acknowledged   as  aforesaid  as  for  his  This  form  will  also  be  found  sufficient 

said  costs   and    charges    by   the   court  under  Tex.  Rev.  Stat.  (1895),  art.  1648. 

here  adjudged  to  the  plaintiff,  and  with  See  also  list  of  statutes  cited  supra,  note 

his  assent:  and   the   said   defendant  in  2,    p.    48,    for    similar    provisions    in 

mercy,  etc.     And  Jet  the  defendant  be  California,    Idaho,    Montana,    Nevada, 

acquitted  of  the  sum  of  £joo,  residue,  Washington,  and  other  states. 
5  E.  of  F.  P.  —7.                             VI  Volume  5. 


6073.  CONFESSION  OF  JUDGMENT.'  6073. 

sum  oi  forty-eight  dollars.  It  is  therefore  considered  that  the  said 
plaintiff  have  and  recover  from  the  said  defendant  the  said  sum  of 
forty-eight  dollars  as  aforesaid  confessed,  with  interest  at  the  rate  of 
seven  per  cent,  per  annum  and  for  his  costs  by  him  about  his  suit  in 
this  behalf  expended,  and  that  he  have  execution  therefor.^ 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6073.* 

(Sand.  &  H.  Dig.  Ark.  (1894),  p.  1651.) 

[In  Justice's  Court,  Garland  County,  Arkansas,  before  Abraham 
Kent,  Justice  of  the  Peace. 

John  Doe     ) 

against       >■  Judgment  by  Confession.]^ 
Richard  Roe.  ) 

On  this  third  day  of  May,  \Z9Jf.,  comes  the  said  John  Doe  as  well 
as  the  said  Richard  Roe,  and  the  said  John  Doe  files  before  me  a  note 
against  the  said  Richard  Roe  as  follows:  [Here  set  out  copy  of  note), 
and  the  said  Roe  files  in  writing  his  confession  of  judgment  wherein 
he  says  that  he  is  indebted  to  the  said  Doe  in  the  sum  oi  fifty  dollars 
debt  and  nine  dollars  and  fifty  cents  interest  due  upon  said  note, 
and  consents  that  judgment  be  rendered  against  him  for  that  sum; 
all  of  which  being  assented  to  by  the  said  Doe,  it  is  therefore  con- 
sidered and  adjudged  that  the  said  Doe  have  and  recover  of  the  said 
Roe  the  sum  of  fifty-nine  dollars  and  fifty  cents  for  his  debt  and 
interest  and  all  his  costs  in  and  about  this  suit  expended. 

\Abraham  Kent,  Justice  of  the  Peace.] ^ 

1.  Where  the  party  appears  in  person  identify  a  writing  obligatory,  it  will  not 
or  by  agent  or  attorney  before  a  justice  invalidate  the  judgment  if  in  the  con- 
of  the  peace  without  issuance  or  service  fession  it  be  called  a  "note."  Exp, 
of  process  and  confesses  judgment,  the  Hays,  6  Ark.  419.  The  judgment  in 
plaintiff,   his   agent   or   attorney  shall  this  case  was  as  follows: 

make  and   file   an   affidavit  in   writing  ^'Louisa Hogins,  administratrix^ 
signed   by  him  to   the  justness  of   his  of  A.D.  I/ogins,  deceased,      I  _.  . 
claim.     Ariz.  Rev.  Stat.  (1887),  §  1444;  vs.                          ^ueDt. 
Tex.  Rev.  Stat.  (1895),  art.  1648.     And  A.  f.  Hays.                 J 
where  such  judgment  is  confessed  by  On  this  day  appeared  Louisa  Hogins, 
agent   or  attorney  the  warrant  of   at-  administratrix   of   A.    D.    Hogins,    de- 
torney  shall  be  filed  with  the  justice  and  ceased,  and  filed  a  writing  obligatory, 
noted    in    the    judgment.     Ariz.    Rev.  dated  the  twenty-fifth  day  of  December, 
Stat.  (1887),  §  803;  Tex.  Rev.  Stat.  (1895),  18^,  and  due  one  day  after  date,  pay- 
art.  1649.     See  also  list  of  statutes  cited  able  to  A.  D.  Hogins  for  eighty-six  dol- 
supra,  note  2,  p.  48.  lars,  and  also  appeared  A.J.  Hays,  the 

2.  Arkansas. — Sand.  &  H.  Dig.  Ark.  defendant,  and  filed  here  in  court  his 
(1894),  §  4379.  See  also  list  of  statutes  confession  of  judgment  in  writing, 
cited  supra,  note  2,  p.  48.  which  is  allowed  by   the  court,  and  it 

Sufficiency  of  Judgment.  —  Where    a  is   considered   by  the    court   that   said 

party  appears  and  files  a  written  con-  plaintiff  have  and   recover  of  the  de- 

fession  of  judgment,  such  a  description  fendant  the   sum   of   eighty-six  dollars 

of  the  cause  of  action  in  the  confession  debt  and  five  dollars  and  sixteen  cents 

as  will   identify  it   is   sufficient.     The  damages  with  all  costs,  etc.,  this  <f/^z'f«/A 

party  is  not  required  to  state  the  tech-  April,  18^5.  fohn  fames,  J.  P." 

nical  character  of  the  instrument  upon         3.  The  words  enclosed  by  [  ]  will  not 

which   the   confession    is    made.     The  be  found  in  the  form  given  in  the  stat- 

amount,  date  and  time  of  payment  be-  ute,  but  have  been  added  to  render  the, 

ing  given  with   sufficient   certainty  to  form  complete. 

98  Volume  5. 


6074.  CONFESSION  OF  JUDGMENT.  6076. 

Form  No.  6074.' 

John  Doe     ) 

against       [■  Before  Abraham  Kent,  Justice  of  the  Peace. 
Richard  Roe.  ) 

New  Haven  County,  ss,     December  tenth,  i897. 

On  this  day  personally  appeared  before  me,  Abraham  Kent,  justice 
of  the  peace  within  and  for  the  county  of  New  Haven,  Richard  Roe^ 
and  acknowledged  that  he  is  indebted  to  John  Doe  in  the  sum  oi  fifty 
dollars  on  a  certain  promissory  note  (or  other  cause  of  indebtedness), 
as  follows:  {Here  set  out  the  note  or  cause  of  indebtedness),  and  con- 
fesses judgment  in  favor  of  the  said  John  Doe  against  himself  for  the 
aforesaid  sum  oi  fifty  dollars  and  seventy-five  cents  costs.  Therefore^ 
it  is  considered  and  adjudged  that  the  ssa&John  Doe  have  and  recover 
against  the  said  Richard  Roe  his  damages  and  costs  aforesaid  acknowl- 
edged and  confessed,  and  that  the  said  plaintiff  have  execution 
therefor. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6075.* 

(Fla.  Rev.  Stat.  (1892),  S  548.) 

{Annexed  to  or  indorsed  upon  the  confession  of  judgment  is  entered  the 
following  judgment  :)^  Judgment  is  hereby  rendered  against  Richard 
Roe,  defendant,  in  favor  of  John  Doe,  plaintiff,  for  the  sum  of  fifty 
dollars,  and  fifty  cents  damages,  and  three  dollars  and  fifty  cents  costs, 
this  ninth  day  of  February,  i89S. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6076.* 

^WiUQoint^^^'  \  ^^-     ^^^or^  Abraham  Kent,  Justice  of  the  Peace. 

Jonn  Doe     \ 

against  V  Upon  Claim  for  Twenty-five  Dollars  due  on  an  Account. 
Richard  Roe.  ) 

Whereas,  tne  said  John  Doe,  plaintiff  above  named,  this  ninth  day 
of  February,  i898,  personally  came  before  me,  and  the  said  Richard 

1,  Connecticut.  —  Gen.  Stat.  (1888),  §  for  a  designated  amount,  and  the 
663.  See  list  of  statutes  cited  supra,  judgment  is  thereupon  so  given,  it  is  a 
note  2,  p.  48.  judgment  confessed.    Such  expressions 

2.  Florida.  —  Rev.  Stat.  (1892),  §  1609,  as  "I  confess  judgment  for  $/oo,"  or 
subs.  6.  See  also  list  of  statutes  cited  "  I  agree  that  judgment  shall  be  given 
supra,  note  2,  p.  48.  against   me   for  %ioo."   are   sufficient. 

3.  For   form   of    confession  of  judg-  Boettcher  v.  Bock,  74  III.  334. 

ment  before   a  justice   of  the  peace  in  Where  the  docket  shows  that  defend- 

Florida  see  supra.  Form  No.  6038.  ant  agreed   that  plaintiflf  should  have 

4,  Illinois.  —  Starr  &  C.  Anno.  Stat,  judgment  for  a  given  sum  and  that 
(1896).  p.  3083,  par.  66.  See  also  list  of  the  plaintiff  accepted  the  judgment  ten- 
statutes  cited  supra,  note  2.  p.  48.  dered,   this  will  be  sufficient.      Boett- 

Ifo  technical  formality  is  required,  un-     cher  v.  Bock,  74  111.  332. 
der  the  Illinois   statute,  in  the  practice         It  is  sufficient  to  show  that  the  court 
in   the    justices'    courts,    and    when    a     had  iurisdiction  of  the  parties  and  of 
party     there    formally    consents     that     all   the   subject   matter,  and   that   the 
judgment   shall  be  given  against  him     matter   was   adjudicated,   the   amount 

99  Volume  5. 


'6077.  CONFESSION  OF  JUDGMENT.  6078. 

Roe  waived  the  issuance  and  service  of  process;  and  the  said  John 
Doe  and  the  said  Richard  Roe  have  entered  their  appearance  in  this 
cause,  and  the  said  Richard  Roe  has  acknowledged  that  he  is  indebted 
to  and  owes  the  said  John  Doe  the  sum  of  twenty-five  dollars,  said 
money  being  due  upon  a  certain  account  for  goods,  wares  and  mer- 
chandise to  him  the  said  Richard  Roe  sold,  furnished  and  delivered, 
during  the  year  i8P7,  as  per  statement  and  account  hereunto  an- 
nexed, and  whereas,  the  said  John  Doe  and  Richard  Roe  have  this 
day  requested  that  judgment  be  rendered  against  the  said  Richard 
Roe  for  the  amount  of  said  account;  it  is  therefore  considered  and 
adjudged  that  the  said  John  Doe,  plaintiff  above  named,  do  have  and 
recover  of  the  said  Richard  Roe,  defendant  above  named,  the  sum 
of  twenty-five  dollars,  and  the  sum  of  five  dollars  costs,  taxed  in  this 
proceeding,  1  amounting  in  all  to  the  sum  of  thirty  dollars. 
Witness  my  hand  this  ninth  day  of  February,  iS9S. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6077.* 
John  Doe     \ 
against       > 
Richard  Roe.  ) 

Judgment  confessed  this  ninth  day  of  February,  iS98,  by  Richard 
Roe,  the  above  named  defendant,  in  favor  of  John  Doe,  the  above 
named  plaintiff,  for  the  sum  of  fifty  dollars,  with  interest  upon  such 
sum  from  the  date  of  this  judgment  until  time  of  payment  of  the 
same. 

Abraham  Kent,  Justice  of  the  Peace 

in  and  for  Allegany  County,  Maryland. 

Form  No.  6078.' 

Cheshire,  ss. 

On  this  first  day  of  September,  a.  d.  i897,  the  above  named  y<?^« 
Doe  and  Richard  Roe  voluntarily  appeared  before  me,  a  justice  of  the 
peace  within  and  for  the  said  county,  and  subscribed  the  above 
agreement.  It  is  therefore  considered  that  the  said  Richard  Roe 
have  execution  against  the  said  John  Doe  for  the  sum  of  fifty  dollars 
as  confessed  above  (or  that  execution  be  stayed  until  the  first  day  of 
January,  i8g8.^ 

Abraham  Kent,  Justice  of  the  Peace. 

found   was   confessed  to  be  owing   to  365;  Campbell  v.  Randolph,  13  111.  313. 

the  plaintiff,  a  recovery  and  the  award  So  that  where  a  party  stated  "  that  he 

of  execution.     Bartlett    v.    Powell,    90  could  not  deny  the  plaintiff's  demand," 

111.  331.  such  admission  conferred  no  authority 

Consent    to    Entry   of  Judgment. —  A  to   enter   a    judgment    by   confession, 

judgment  entered  upon  the  admission  Elliott  v.  Daiber,  42  111.  467,  468. 

by  the  defendant  of  an  amount  due  is  1.  Costs.  —  Neither  the  items  of  costs 

not  a  judgment  by  confession.     A  con-  nor  the  an}ount  thereof  need  be  stated 

fession   of  judgment  is  more  than  an  in  the  judgment.     Simms   v.   Klein,  i 

acknowledgment  that  a  certain  amount  111.  371. 

is  justly  due;  it  is  a  consent  to  the  en-  2.  Maryland. — Pub.  Gen.  Laws(!888), 

try  of  judgment.      Dearborn  Laundry  art.  52,  §  33. 

Co.  V.  Chicago,  etc.,  R.  Co.,  55  111.  App.  3.  New  Hampshire.  —  Every   justice 

441;  Goddard  v.  Fisher,    23   111.   App.  to  whom  a  confession  of  debt  is  made 

100  Volume  5. 


6079.  CONFESSION  OF  JUDGMENT.  6080. 

Form  No.  6079.' 

John  Doe,  plaintiff,       1  Before  Abraham  Kent,  Esq.,    one  of   the 

against  >•      Justices  of  the  Peace  of  the  Town  of 

Richard  Roe,  defendant.  )      Huntington,  County  of  Suffolk,  New  York. 

Whereas,  the  defendant  above  naixntd,  Richard  Roe  [and  the  plain- 
tiff above  named,  John  Doe\  has  {ox  have)  personally  appeared  before 
me,  and  the  said  Richard  Roe  having  filed  his  confession  of  judgment 
herein  wherein  he  consents  that  judgment  be  entered  in  this  cause 
in  favor  of  the  plaintiff,  John  Doe,  for  the  sum  of  seventy-five  dollars 
upon  a  promissory  note,  as  is  evidenced  by  his  said"  statement  and 
confession  in  writing  heretofore  with  me  filed  in  this  cause  [accom- 
panied by  the  affidavits  both  of  the  said  John  Doe  and  tne  said 
Richard  Roe,  as  by  section  301 1  of  the  Code  of  Civil  Procedure 
required]  -^  it  is  now  therefore  considered  and  adjudged  that  the 
said  John  Doe  do  have  and  recover  of  and  from  the  said  Richard  Roe 
the  sum  of  seventy-five  dollars,  the  sum  confessed,  and  the  sum  of 
fifteen  dollars  costs,  in  this  behalf  incurred  (Jure  specifying,  by  way  of 
items,  the  costs'),^  amounting  in  all  to  the  sum  of  «/«^/>' dollars.  Judg- 
ment entered  this  ninth  day  ol  February,  iS98. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6080.* 

State  of  Vermont,       \ 
Washington  County.  \ 

Be  it  remembered  that  at  Montpelier,  on  this  first  day  oi  July, 
A.  D.  \2>97,  Richard  Roe,  oi  Montpelier  aforesaid,  personally  appeared 
before  me,  Abraham  Kent,  justice  of  the  peace  within  and  for  the 
said  county  of  Washington,  and  acknowledged  himself  indebted  to  John 
Doe,  of  Montpelier  aforesaid,  without  (or  wit/i)  antecedent  process,  on  a 
note  in  the  sum  of  ten  dollars,  bearing  date  the  first  day  of  September, 
A.  D.  i2>96,  executed  and  delivered  by  the  ssad  Ric/iard  Roe  to  the 
said  John  Doe,  and  payable  to  the  said  Doe  or  order  on  demand,  with 
interest,  in  the  sum  of  ten  dollars  and  fifty  cents;  and  whereupon  it 
is  adjudged  by  the  said  justice  that  said  yi?//^  Z)<7<?  recover  of  the 
said  Richard  Roe  the  sum  of  ten  dollars  and  fifty  cents  and  twenty-five 
cents  more  for  taking  the  record  of  such  confession,  whereof  the  said 
John  Doe  may  have  execution. 

Abraham  Kent,  Justice  of  the  Peace. 


shall    keep    a    true    and    full     record  required  to  accompany  the  statement 

thereof,   signed   and  certified  by  him-  and    confession.       N.    Y.    Code    Civ. 

self.     N.   H.   Pub.  Stat.  (1891),  c.  247,  Proc.,  ^  3011. 

I  17.  S.  Tbe  items  of  cost  should  be  speci- 

1.  New     York.  —  Code     Civ.    Proc.  fied  in  the  judgment.     N.  Y.  Code  Civ. 
(1897),  §  3010  et  seq.     See  also   list  of  Proc,  §  3078. 

statutes  cited  supra,  note  2,  p.  48,  for  4.    Vermont. — Stat.    (1894),    §    1048, 

similar  provisions  in  California,  Idaho,  provides    that   no    judgment   shall    be 

Minnesota,  Missouri,  Montana,  Nevada,  rendered  upon  confession   except  upon 

and  other  states.  specification   in  writing  filed   with   the 

2.  Judgment  for  ram  over  fifty  dollars  justice  setting  forth  the  claim  on  which 
should  refer  to  the  affidavit  by  statutes  judgment  is  rendered. 

101  Volume  5. 


6081.  CONFESSION  OF  JUDGMENT.  6082. 

2.  Upon  Confession  of  Attorney.^ 

Form  No.  6o8i .' 

Territory   oi  Arizona,  )  j^  ^^^  j^.^^^.^^  ^^^^^^ 
County  of  Gtla,  \ 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

This  day  came  the  plaintiff,  by  his  attorney,  and  filed  his  complaint 
herein,  and  the  said  defendant,  by  Daniel  Webster,  his  attorney  duly 
constituted  by  warrant  of  attorney,  comes  and  in  open  court  con- 
fesses that  he  is  indebted  to  the  said  plaintiff  for  the  sum  of  twelve 
hundred  and  fifty  dollars,  as  claimed  by  the  plaintiff  in  his  complaint. 
It  is  therefore  considered  by  the  court  that  the  said  plaintiff  recover 
from  the  said  defendant  the  said  sum  of  twelve  hundred  and  fifty 
dollars  as  aforesaid  confessed  and  that  he  have  execution  therefor. 

Form  No.  6  o  8  2  .< 

State  of  Michigan,  ) 

Circuit  Court  for  the  County  of  Montcalm.  \     * 
John  Doe     ) 
against       >■ 
Richard  Roe.  ) 

On  reading  and  filing  the  promissory  note,  warrant  of  attorney,  and 
declaration  in  this  cause,  together  with  the  answer  of  the  said  defend- 

1.  Sufficiency  of  Judgment. — Name  of  but  not  necessarily   void.     See   Adam 

a//<7r«d-j  appearing  to  confess  the  judg-  v.  Arnold,   86   111.    185;    Davenport   v. 

ment  need  not  be  shown  in  the   record  Wright,    51    Pa.    St.    292;   Caldwell   v. 

of  the  judgment.     Russell  v.  Lillja,  90  Fifield,  24  N.  J.  L.  150. 
111.  330.  Where  bond  has  been  given,  the  form 

Warrant  of  attorney  to  confess  judg-  of  judgment  on  a  warrant  of  attorney 

ment  must  be  shown  to  be  in  existence  at  common  law  may  be  found  in  Chit, 

in  the  entry  of  judgment  by  cognovit.  F.  (1847^,  p.  316. 

Matzenbaugh   v.    Doyle,    56   111.  App.         Where  bond   has    not   been  given,  the 

343.     But  the  warrant  need  not  be  set  form  of  judgment  on  a  warrant  of  at- 

out  at  length  in  the  transcript.     Apple-  torney   at  common    law    is   set  out  in 

gate  V.  Mason,  13  Ind.  79.     It  is  sufB-  Chit.  F.  (1847),   p.  317. 
cient    that    the    judgment    recite    the        Form  of  rule  upon  warrant  of  attorney 

power  of  attorney  without  reciting  that  to  confess  judgment  at  common  law  is 

it  was   proven.     Caruthers  v.  Caruth-  given  in  Chit.  F.  (1847),  p.  316. 
ers,  2  Lea  (Tenn.)  270.  Form  of  affidavit  to  enter  up  judgment 

After  obligee's  death,  judgment  upon  after  a  year  upon  a  warrant  of  attorney 

warrant  of  attorney  should   be  entered  at  common    law    is  given   in  Chit.    F. 

in  the  name  of  the  executors.     Guyer  (1847),  p.  315. 
V.  Guyer,  6  Houst.  (Del.)  430.  2.  Arizona.  —  Rev.  Stat.  (1887),  §  802 

Attorneys'  fees  may  be  included  in  the  et  seq.     See  list   of  statutes  cited  supra, 

judgment    when    authorized     by     the  note  2,  p.  48,  for  similar  provisions  in 

warrant     of     attorney.      Sweeney    v.  other  states. 

Stroud,     55    N.    J.    L.    97  ;    Campbell         3.    Michigan.  —  How.      Anno.     Stat. 

7).  Goddard,  123  111.  220:    Seligman  v.  (1882),  §  7662. 

Franco-.^merican  Trading  Co.,  17  Civ.         See  list  of  statutes  cited  supra,  note 

Proc     Rep.   (N.   Y.   Supreme  Ct.)  342;  2,  p.  48,  for  similar  provisions  in  other 

Moore's  Appeal,  no  Pa.  St.  433.  states. 

For  an  amount  greater  than  that  au-        Judgment  on  confession,  or  cognovit  in 

thorized   by  the    warrant   is   irregular  assumpsit,  without  warrant  of  attorney 

102  Volume  5. 


6083.  CONFESSION  OF  JUDGMENT.  6083. 

ant,  confessing  the  action  of  the  said  plaintiff,  to  the  sum  of  eight 
hundred  dollars  damages;  Therefore,  it  is  considered  that  the  said 
plaintiff  do  recover  against  the  said  defendant  his  damages  so  con- 
fessed as  aforesaid,  together  with  his  costs  and  charges  by  him  about 
his  suit  in  his  behalf  expended  to  be  taxed,  and  that  the  said  plaintiff 
have  execution  thereof. 

Carroll  Johnson^  Circuit  Judge. 

Form  No.  6083.' 

In  the  Circuit  Court,  Col/ax  County,  in  the  State  of  Nebraska: 

John  Doe,  plaintiff,      \ 

vs.  v  Judgment. 

Richard  Roe.,  defendant.  ) 

Now,  on  this  tenth  day  of  December.,  i8P7,  comes  the  plaintiff  by  his 
attorney;  also  comes  Daniel  Webster,  one  of  the  attorneys  of  this 
court,  on  behalf  of  the  defendant,  and  by  virtue  of  warrant  of  attor- 
ney for  that  purpose  duly  executed  by  the  said  defendant  in  this  action 
filed,  and  now  produced  to  the  court,  and  waives  the  issuing  and  serv- 
ice of  process,  and,  with  the  consent  of  the  plaintiff,  confesses  that 
the  said  defendant  is  justly  indebted  to  the  said  plaintiff  in  the  sum  of 
two  hundred  and  fifty  dollars,  with  interest  thereon  at  the  rate  of  seven 
per  cent,  per  annum  from  the  first  day  oi  June,  i896,  as  claimed  in  the 
petition.  It  is  therefore  considered  and  adjudged  by  the  court  that 
the  plaintiff  recover  of  and  from  the  defendant  the  said  sum  of  two 
hundred  and  fifty  dollars,  with  interest  thereon  at  the  rate  of  seven  per 
cent,  per  annum  from  they?rj-/day  oi  June,  \W6,  together  with  his  costs 
herein  expended,  taxed  at  forty-eight  dollars  and  thirty-five  cents. 

John  Marshall,  Judge. 

in  Michigan,  may  be  as  follows:  {Title  2,  p.  48,  for  similar  provisions  in  other 

of  court  and  cause  as  in  Form  No.  6082.)  states. 

"The  defendant  in  this  cause  having  Precedent — Ohio.  —  In  Callen  v.  El- 
appeared  therein,  hy  feremiah  Mason,  lison,  13  Ohio  St.  449,  the  judgment, 
his  attorney,  and  confessed  the  action  of  omitting  formal  parts,  was  as  follows  : 
the  said  plaintiff,  and  his  damages  by  "And  now  of  this  day,  that  is  to  say, 
him  sustained  on  account  of  the  non-  at  the  fune  Term,  in  the  year  of  our 
performance  of  the  several  promises  Lord  one  thousand  eight  hundred  and 
and  undertakings  in  said  plaintiff's  twenty-seven,  comes  the  plaintiff  by  his 
declaration  mentioned,  to  the  sum  of  attorney  aforesaid,  and  the  plaintiff,  by 
eight  hundred  dollars;  hereupon  said  his  attorney,  having  proceeded  and 
plaintiff  prays  judgment  and  his  dam-  filed  here  in  court  his  declaration 
ages  so  acknowledged,  together  with  against  the  said  defendants,  the  de- 
his  costs  and  charges  by  him  about  his  fendants,  by  George  Collins,  Esq.,  their 
suit  in  this  behalf  expended;  Therefore;  attorney,  come  into  court,  and,  by  vir- 
it  is  considered  and  adjudged  that  the  tue  of  his  power  of  attorney,  filed  in 
said  plaintiff  do  recover  against  said  this  court,  confessed  judgment  for  the 
defendant  his  damages  aforesaid,  as  defendants  for  the  sum  of  ^«^ //w«ja«^ 
aforesaid  acknowledged  and  confessed,  three  hundred  and  ninety-three  dollars, 
together  with  his  costs  and  charges  and  j^-i/^w/y  cents  in  damages;  and  there- 
aforesaid  to  be  taxed,  and  that  said  fore  it  is  considered  by  the  court  that 
plaintiff  have  execution  thereof.  the  plaintiff  recover  against  the  defend- 
Carroll  Johnson,  Circuit  ]\xAgc."  ant  his  damages  aforesaid  by  them 
1.  Nebraska.  —  Comp.  Stat.  (1897),  §§  confessed,  and  his  costs  by  him  about 
6012-601 5.  his  suit  in  this  behalf  expended,  ex- 
See  list  of  statutes  cited  supra,  note  cept  the  docket  fee." 

103  Volume  5. 


6084. 


CONFESSION  OF  JUDGMENT. 


6085. 


Form  No.  6084.' 
(N.  J.  Gen.  Stat.  (1896),  p.  173,  §  5.) 

Essex  County  Circuit  Court,  of  the  term  of  December^  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  ninety-seven. 
Johti  Doe    ) 
against       >■  In  Debt  on  Bond  and  Warrant  of  Attorney. 
Richard  Roe.  ) 

The  defendant's  appearance  to  this  action  is  entered  and  judgment 
confessed  to  the  plaintiff  for  the  sum  mentioned  in  the  above  obliga- 
tion by  virtue  of  the  warrant  of  attorney  thereunto  annexed  and  pur- 
suant to  the  directions  of  an  act  entitled  "An  act  directing  the  mode 
of  entering  judgments  on  bond  with  warrant  of  attorney  to  confess 
judgment,"  whereby  it  is  considered  that  the  said  John  Doe,  the  above 
named  plaintiff,  do  recover  against  the  said  Richard  Roe,  the  above 
named  defendant,  the  sum  of  one  thousand  dollars  debt  and  four  dol- 
lars costs  of  suit.  Judgment  signed  and  ordered  entered  this  tenth 
day  of  December  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-seven. 

John  Marshall^  Circuit  Judge.* 


Form  No.  6085, 


John  Doe,  plaintiff,       ) 

against  V 

Richard  Roe,  defendant.  ) 

1.  New  Jersey.  —  Gen.  Stat.  (1896),  p. 
172,  %\  et  seq. 

Another  form  of  entry  of  judgment  in 
New  Jersey  may  be  as  follows: 

"  Be  it  fern  em  be  red  that  on  this  ninth 
day  of  February,  i^q8,  before  me,  the 
subscriber,  a  supreme  court  commis- 
sioner, personally  appeared  Jeremiah 
Mason,  attorney  lot  Richard  Hoe,  the  de- 
fendant in  the  above  entitled  cause,  and 
produced  an  original  warrant  of  attor- 
ney, executed  by  the  said  defendant,  and 
the  copy  whereof  is  hereto  annexed,  and 
by  virtue  of  said  warrant  of  attorney  ap- 
peared to  this  action,  received  the  fore- 
going declaration,  confessed  the  said 
action  and  a  judgment  thereon  in  favor 
ol  John  Doe,  the  plaintiff,  against  Rich- 
ard J?oe,  the  defendant,  for  the  sum  of 
fve  hundred  dollars  damages  and  costs 
of  suit  to  be  taxed;  whereupon  leave  is 
given  to  enter  up  proceedings  of  said 
warrant  of  attorney  and  final  judgment 
against  the  s2i\A  Richard  Roe  m  favor  of 
the  said  plaintiff,y(7^«  Doe,  for  the  sum 
of  _five  hundred  dollars  damages  and 
costs  of  suit  to  be  taxed. 

Judgment  signed  and  ordered  to  be 
entered  this  ninth  day  of  February,  i9>g8. 

I  do  hereby  certify  that  at  the  time  of 
signing   the   foregoing    judgment  the 


affidavit  of  y(3/i«  Doe,  the  said  plaintiff 
in  the  foregoing  action,  taken  as  re- 
quired by  the  statute  and  hereto  an- 
nexed, was  produced  to  me  on  the  ninth 
day  of  February,  ligS. 

John  Marshall, 
Supreme  Court  Commissioner." 

Against  two  persons  on  the  confession 
of  one  is  improper.  Westfall  v.  Dono- 
ven,  2  N.  J.  L.  64;  Little  v.  Moore,  4 
N.  J.  L.  82;  Mills  V.  Sleght,  5  N.  J.  L. 
653;  Wiggins  V.  Klienhans,  9  N.  J. 
L.  249;  Ballinger  v.  Sherron,  14  N.  J.  L. 
144.  But  such  judgment  is  good  against 
the  one  who  confesses  it.  Wood  v.  Og- 
den,  16  N.  J.  L.  453. 

Against  one  after  his  decease  is  im- 
proper. Stull  V.  Abbott,  15  N.  J.  L. 
339;  Milnor  v.  Milnor,  9  N.  J.  L.  93; 
Wood  V.  Hopkins,  3  N.  J.  L.  263. 

2.  Hay  be  signed  and  ordered  by  su- 
preme court  commissioner.  N.  J.  Gen. 
Stat.  (1896),  p.  173,  §  6. 

3,  Virginia  and  West  Virginia.  —  See 
supra,  note  3,  p.  95. 

In  detinue,  judgment  may  be  as  fol- 
lows: {Commencing  as  in  Form  No.  6oSj, 
and  continuing  down  to*)  "  saith  that 
he  cannot  gainsay  the  plaintiff's  action. 
Therefore  it  is  considered  by  the  court 
that   the  plaintiff  recover   against   the 


104 


Volume  5. 


6086.  CONFESSION  OF  JUDGMENT.  6086. 

This  day  came  the  parties  by  their  attorneys,^  and  thereupon  the 
said  defendant,  relinquishing  his  former  plea,*  acknowledgeth 
the  plaintiff's  action  against  him,  and  further  acknowledgeth  that  the 
plaintiff  hath  sustained,  by  occasion  of  the  nonperformance  of  the 
assumptions  made  by  him,  damages  to  the  amount  oi  Jive  hundred 
dollars;  and  he,  the  said  defendant,  agrees  that  judgment  be  entered 
for  the  plaintiff  for  the  damages  so  acknowledged,  with  interest 
thereon  from  the  ninth  day  of  February,  i8P7,  till  paid,  and  the  costs. 
Thereupon,  with  the  assent  of  the  plaintiff,  it  is  considered  by  the 
court  that  the  plaintiff  recover  against  the  defendant  five  hundred 
dollars,  the  damages  aforesaid,  so  as  aforesaid  acknowledged,  with 
interest  thereon,  to  be  computed  after  the  rate  of  six  per  centum  per 
annum,  from  the  ninth  day  of  February,  iS97,  till  paid,  and  his  costs  by 
him  about  his  suit  in  this  behalf  expended.  And  the  said  defendant 
in  mercy,  etc. 

Form  No.  6086.' 
In  the  Circuit  Court  for  Vernon  County. 
John  Doe,  plamtiff,      )    judgment  on  Warrant  of  Attorney,  without 


against  V  •'      °  • 

Richard  Roe,  defendant. 

Be  it  remembered  that  on  the  ninth  day  of  February,  i89c?,  came 
the  plaintiff  in  the  above  entitled  cause  by  Oliver  Ellsworth,  his  attor- 
ney, and  filed  his  complaint  against  the  defendant  in  the  above 
entitled  cause,  and  together  with  said  complaint  said  plaintiff  also 
filed  an  affidavit,  a  promissory  note,  a  warrant  of  attorney,  and  an 

defendant  \.)\^  five  cows  named  in  the  tiff's   action,    and   the    cause    remains 

declaration  mentioned,  if  they  may  be  without  judgment  upon  that  confession 

had,  or  the  price  of  them,  if  they  may  not  until  a  final  judgment  can  be  given  as 

be  had,  which  is  agreed  by  the  parties  to  all  the  defendants." 
to  \>^  five  hundred  6.o\\2Lr%,  together  with         1.  By  attorney  in  fact,  may  be  as  fol- 

one  dollar  damages  by  them  agreed  for  lows:     {Title  of  cause  as  in  Form  No, 

detaining  the  said  cows,  and  his  costs"  608$).     "  This  day  as  well  the  plaintiff 

{concluding  as  in  Form  No.  608^).  by   his    attorney  as   the   defendant  by 

In  trespau,  assault  and  battery,  the  5iwM^/ 5/4^r/,  his  attorney  in  fact  afore- 

judgment  may  be  as    follows:     {Com-  said,  acting  under  a  power  of  attorney 

mencing  as  in  Form  No.  6083,  and  contin-  under  the  hand  and  seal  of  said  defend- 

«»«f /<?*)"  saith  that  he  cannot  gainsay  ant,    acknowledges"  {continuing   as  in 

the  plaintiff's  action,  nor  but  that  he  is  Form  No.  6o8j). 

guilty  in  manner  and  form  as  the  plain-         Or  as  is  given   in  Robinson's  F.,  p. 

tiff     against    him     hath    complained;  loi:     "This  day  came  the  plaintiff  by 

and  the  parties  agree  that  the  plaintiff  his  attorney  and  produced  the  power  of 

hath  sustained  damages  by  that  occa-  attorney   for   confessing  judgment   in 

sion  to  five  hundred  dollars,  besides  his  this  action  under  the  hand  and  seal  of 

costs.      Therefore  it   is  considered  by  thedeiendsinl,  attested  hy  Samuel  Short, 

the  court"  {concluding  as  in  Form  No.  and  approved  the  day  of  the  execution 

608^).  thereof.       Whereupon  y^r^w/a/*   Mason 

Judgment  against  several  defendants,  appeared  for  the  defendant  by  virtue  of 
where  the  action  is  confessed  by  one,  is  said  power,  and  the  defendant  by  his 
given  in  Robinson's  F.,  p.  100,  as  fol-  said  attorney  acknowledges  the  plain- 
lows,  omitting  formal  parts:  tiff's  action  for,  etc.     Therefore,  etc." 

"This   day  came,   etc.,  and    the   de-        2.    Wisconsin. — Sanb.    &    B.    Anno, 

fendant,  Richard  Roe,  relinquishing  his  Stat.  (1889),  ^  2895  etseq.     See  also  list 

former    plea,   acknowledges  the  plain-  of  statutes  cited  supra,  note  2,  p.  48. 

105  Volume  5. 


6086.  CONFESSION  OF  JUDGMENT.  6086. 

answer  of  the  said  defendant,  which  said  complaint,  affidavit,  promis- 
sory note,  warrant  of  attorney  and  answer  are  as  follows,  to  wit: 

(^Here  set  out  copy  of  complaint.  )i 

{Here  set  out  copy  of  affidavit ^^ 

{Here  set  out  copy  of  promissory  note^ 

{Here  set  out  copy  of  warrant  of  attorney.')^ 

{Here  set  out  copy  of  defendanf  s  answer ^^ 

State  of  Wisconsin. 

In  the  Circuit  Court  for  Vernon  county. 

John  Doe.,  plaintiff,      ) 

against  \  Judgment.* 

Richard  Roe.,  defendant.  ) 

Having  this  day  read  the  complaint  of  the  plaintiff  in  the  above 
entitled  cause,  and  also  his  affidavit  therewith  filed,  as  well  as  the 
note  sued  upon  herein,  and  the  warrant  of  attorney  signed  by  the 
defendant  in  the  above  entitled  cause,  authorizing  the  confession  of 
judgment  on  the  said  note,  and  the  answer  of  the  said  defendant, 
wherein  he  confesses  said  complaint  and  submits  to  a  judgment 
against  the  said  defendant  in  favor  of  the  said  plaintiff,  all  of  which 
papers  were  produced,  exhibited  and  filed  herein.  Now,  therefore, 
on  motion  of  Oliver  Ellsworth^  attorney  for  said  plaintiff,  it  is  hereby 
considered  and  adjudged  that  the  said  plaintiff,  John  Doe.,  have  and 
recover  of  the  said  deienda.nt,  Richard  Roe,  the  sum  oi  five  hundred 
dollars  claimed  in  said  complaint  and  confessed  in  said  answer, 
together  with  thirteen  dollars  costs  of  this  judgment,  taxed  as  per 
stipulation  in  said  answer,  amounting  in  all  to  the  sum  oi  five  hundred 
and  thirteen  dollars.  Judgment  ordered  to  be  entered  by  the  clerk  on 
the  ninth  day  of  February,  iS98. 

Carroll  Johnson,  Circuit  Judge.'' 

Calvin  Clark,  Clerk. 

1.  For  Form  of  complaint  upon  a  note,  plaintiff's  right  of  action,  and  that  they 
in  Wisconsin,  see  the  title  Bills  and  have  sustained  damages  to  the  sum  of 
Notes,  vol.  3,  p.  283,  Form  No.  4122.  four   hundred  and  twelve   dollars    and 

2.  For  form  of  this  affidavit  see  JM/ra,  eighty-nine  cents.  Whereupon,  it  is 
note  I,  p.  85.  considered  and  adjudged  by  the  court 

3.  The  promissory  note,  or  other  instru-  that  the  said  plaintiffs  do  have  and 
ment  in  writing,  may  embrace  also  the  recover  of  and  from  the  said  defendants 
warrant  or  authority  for  the  confession  the  sum  oi  four  hundred  and  twelve  doU 
of  judgment.  Sloane  v.  Anderson,  57  lars  and  eighty-nine  cents,  their  dam- 
Wis.  123.  ages  so  as  aforesaid  confessed,  together 

4.  For  form  of  warrant  of  attorney  see  with  their  proper  costs  and  charges 
infra,  note  3,  p.  109.  therein  expended  and  taxed  at  the  sum 

5.  For  form  of  defendant's  answer  see  of /7<'d'/t'^  dollars  and  thirteen  cents,  and 
supra.  Form  No.  6057.  that  they  may  have  execution  therefor." 

6.  Precedent. —  In  Remington  v.  Cum-  7.  Must  be  signed  by  a  judge,  or  court 
mings,  5  Wis.  138,  the  judgment,  omit-  commissioner  if  entered  in  vacation, 
ting  formal  parts,  was  as  follows:  ".\nd  So  held  where  a  judgment  was  entered 
now  at  this  day  come  the  parties  by  upon  a  sworn  statement  or  confession 
their  attorneys  into  the  clerk's  office,  by  defendant  indorsed  upon  the  coni- 
and  the  defendants,  by  warrant  of  at-  plaint  without  service  of  process.  Wads- 
torney  duly  executed  and  now  here  worth  v.  Willard,  22  Wis.  238;  Blaikie 
produced,  waive  the  issuing  of  process  v.  Griswold,  10  Wis.  293.  See  also 
and  service  thereof,  and  by  the  plea  of  Remington  v.  Cummings,  5  Wis.  138; 
confession  by/.  P.  Atrvood,  their  attor-  Fairchild  v.  Dean,  15  Wis.  206. 

ney,    confess    and     acknowledge    the 

106  Volume  5. 


6087. 


CONFESSION  OF  JUDGMENT. 


6087. 


V.  WARRANT  OF  ATTORNEY.^ 
1.  Distinct  Instrument.^ 

Form  No.  6087. 

Know  all  men  by  these  presents,  that  I,  Richard  Roe,  have  made, 
constituted  and  appointed,  and  by  these  presents  do  make,  constitute 
and  appoint  Jeremiah  Mason  true  and  lawful  attorney  for  me  and  in 


1.  A  warrant  of  attorney  is  an  instru- 
ment authorizing  the  person  to  whom 
it  is  given  to  appear  in  an  action  on 
behalf  of  the  maker  or  to  confess  judg- 
ment against  him.  And.  L.  Diet., 
Rapalje  &  L.  L.  Diet.;  28  Am.  &  Eng. 
Encycl.  of  L.  685. 

Must  be  filed  and  made  part  of  the 
record.     Durham  v.  Brown,  24  111.  93. 

y<rj2^«<7.  — Rev.  Stat.  (1887),  §§   803, 

1445- 
Kansas.  —  2  Gen.  Stat.  (1897),  c.  95, 

§404- 

Michigan.  —  How.  Anno,  Stat.  (1882), 
§  7662. 

Minnesota. — Stat.  (1894),  g  6080. 

Missouri.  —  Rev.  Stat.  (1889),  §  2232. 

Nebraska.  —  Comp.  Stat.  (1897),  § 
6015. 

Ohio.  —  Bates'    Anno.    Stat.     (1897), 

3  5324- 

Oklahoma.  — Stat.  (1893),  §  4298. 

Texas.  —  Rev.  Stat.  (1895),  art.  1649. 

Wyoming.  —  Rev.  Stat.  (1887),  §  2671. 

See  list  of  statutes  cited  supra,  note 
2,  p.  48,  for  similar  provision  in  other 
states. 

Before  action  brought,  powers  of  attor- 
ney made  on  confessing  judgment  are 
null  and  void  in  the  following  states: 

Florida.— Ktv.  Stat.  (1892),  §  1178. 

Kentucky.  —Gen.   Stat.  (1888),  S  4i6. 

Mississippi. — Anno.    Code    (1892),  g 

747- 

In  Virginia,  a  power  of  attorney  to 
confess  judgment  may  be  executed 
before  the  action  Is  brought.  Virginia 
Valley  Ins.  Co.  v.  Barley,  16  Gratt. 
(Va.)  363. 

If  any  person  be  in  cnstody  in  a  civil 
action,  at  the  suit  of  another,  no  war- 
rant of  attorney  executed  by  the  person 
in  custody,  to  confess  judgment  in 
favor  of  the  person  at  whose  suit  he  is 
in  custody,  shall  be  of  any  force  unless 
some  attorney  expressly  named  by 
the  person  in  custody  be  present  and 
sign  the  warrant  of  attorney  as  a  wit- 
ness. 

Kansas.  —  2  Gen.  Stat.  (1897),  c.  95, 
§  405- 


Nebraska. — Comp.  Stat.  (1897),  §  6016. 
See  also  list  of  statutes  cited  supra, 
note  2,  p.  48. 

2.  A  Distinct  Instnunent.  —  Some  stat- 
utes authorizing  confession  of  judg- 
ment upon  a  plea  signed  by  an  attorney 
in  vacation  require  the  authority  for 
confessing  such  judgment  to  be  in 
some  proper  instrument  distinct  from 
that  containing  the  iustrument  or  con- 
tract, etc.,  upon  which  judgment  is 
confessed. 

Minnesota.  —  Stat.  (1894),  §  6o8g.  See 
also  list  of  statutes  cited  supra,  note 
2,  p.  48,  for  similar  provisions  in  other 
states. 

Form  of  warrant  of  attorney  at  common 
law  to  confess  judgment  is  given  in 
Chit.  F.  (1847),  p.  313. 

Form  of  defeasance  on  warrant  of  at- 
torney at  common  law  to  confess  judg- 
ment is  given  in  Chit,  F.  (1847),  p.  314. 

Form  of  affidavit  of  execution  of  war- 
rant of  attorney  as  required  by  3  Geo. 
IV,  c.  39,  §  I,  is  given  in  Chit.  F.  (1847), 
P-  315- 

In  Michigfan,  the  statute  requires  the 
authority  to  confess  to  be  in  some  in- 
strument distinct  from  that  containing 
the  evidence  of  the  debt.  Such  an  in- 
strument may  be  as  follows: 

''^  To  Jeremiah  Mason,  Esq.,  attorney 
of  the  Supreme  Court  of  the  state  of 
Michigan,  or  to  any  other  attorney  of  the 
said  court,  or  of  any  other  court,  there 
or  elsewhere:  Whereas,  I,  Richard  Roe, 
of  the  city  of  Detroit,  in  the  state  of 
Michigan,  made,  executed  and  deliv- 
ered, for  value  received,  my  certain 
promissory  note,  of  even  date  herewith, 
for  the  sum  of  five  hundred  dollars,  pay- 
able one  day  after  date,  to  the  order  of 
John  Doe,  of  the  said  city  of  Detroit, 
state  aforesaid,  which  said  note  was 
made  and  delivered  to  secure  the  pay- 
ment of  the  sum  oi  Jive  hundred  dLo\\2.x<!, 
by  me  this  day  borrowed  of  the  said 
John  Doe,  and  by  the  said  John  Doe 
loaned  to  me;  these  are  to  desire  or 
authorize  you  or  any  of  you  to  appear 
for  me,  my  heirs,  executors  or  admin- 


107 


Volume  5. 


6087. 


CONFESSION  OF  JUDGMENT. 


6087. 


my  name,  place  and  stead,  to  appear  before  the  District  Court  of 
Colfax  county,  in  the  state  of  Nebraska^  and  there  to  waive  service 
and  issuing  of  process,  and  to  confess  judgment  in  favor  of  John  Doe 
against  me  in  the  sum  oi  five  hundred  dollars,  with  interest  thereon 
at  the  rate  of  six  per  cent,  per  annum  from  the  ninth  day  of  February, 
iB97.  Said  indebtedness  being  now  due  and  payable,  and  incurred 
on  account  of  (If ere  set  out  /acts  showing  hoT.v  the  indebtedness  arose,  as 
inform  No.  6030),  hereby  giving  and  granting  unto  him,  said  attor- 
ney, full  power  and  authority  to  do  and  perform  all  and  every  act 
and  thing  whatsoever  requisite  and  necessary  to  be  done  in  and  about 
the  premises,  as  fully  to  all  intents  and  purposes  as  I  might  or  could 
do  if  personally  present,  with  full  power  of  substitution  and  revoca- 
tion, hereby  ratifying  and  confirming  all  that  my  said  attorney  shall 
lawfully  do  or  cause  to  be  done  by  virtue  thereof.^ 


istrators,  in  the  said  court,  or  else- 
where, in  an  action  of  assumpsit,  there 
or  elsewhere  brought,  or  to  be  brought 
against  me,  my  heirs,  executors  or  ad- 
ministrators, at  the  suit  of  the  said  John 
Doe,  or  his  assigns,  on  the  said  promis- 
sory note,  or  at  any  term  or  time,  past 
or  present,  or  any  subsequent  term  or 
terms,  there  or  elsewhere  to  be  held, 
and  confess  judgment,  or  judgments, 
thereon  against  me,  my  heirs,  execu- 
tors or  administrators,  for  the  said  sum 
oi  five  hundred  do\\a.rs,  the  debt,  besides 
costs  of  suit  by  non  sum  informatus  nil 
licit,  or  otherwise,  as  to  you  shall  seem 
meet;  and  for  you  or  any  of  you' so 
doing,  this  shall  be  your  sufficient  war- 
rant. And  I  do  hereby  for  myself,  my 
heirs,  executors  and  administrators, 
remise,  release,  and  forever  quitclaim 
unto  the  said  John  Doe,  his  certain  at- 
torney, heirs,  executors,  administrators 
and  assigns,  all  and  all  manner  of  error 
and  errors,  misprisions,  misentries, 
defects  and  imperfections  in  the  enter- 
ing of  the  said  judgment,  or  judgments, 
or  any  processes  or  proceedings  there- 
on or  thereto,  or  in  anywise  attaching 
or  concerning  the  same.  In  witness 
whereof,"  etc. 

1.  Must  be  clear  and  explicit,  and  must 
be  strictly  pursued.  Frye  v.  Jones,  78 
111.  627;  Keith  V.  Kellogg,  q7  111.  147; 
Spence  v.  Emerine,  46  Ohio  St.  433; 
Cushman  v.  Welsh,  19  Ohio  St.  536. 

A  warrant  of  attorney  to  confess 
judgment  on  a  note  does  not  authorize 
a  confession  before  the  maturity  of  the 
note.     Spier  v.  Corll,  33  Ohio  St.  236. 

Not  naming  attorney  but  running  "  to 
any  attorney "  is  not  defective.  Pop- 
pers V.  Meager,  33  111.  App.  19. 

"Any  attorney"  as  used  in  a  warrant 


of  attorney  will  not  include  a  prothono- 
tary  or  a  clerk.  Grover,  etc..  Sewing 
Mach.  Co.  V.  Radclifle,  66  Md.  511. 

Authorizing  Scott  or  any  other  attor- 
ney of  court  to  confess  judgment,  etc., 
sufficiently  authorized  a  confession  by 
Attorneys  Scott  and  Booth.  Patton  v. 
Stewart,  19  Ind.  233. 

Power  to  confess  judgment  as  "  of  any 
term "  means  power  to  confess  at 
some  term,  and  does  not  authorize  a 
confession  in  vacation.  Whitney  v. 
Bohlen,  157  111.  572.  But  where  a  war- 
rant of  attorney  authorizes  a  confes- 
sion of  judgment  upon  a  note  "  at  any 
time"  it  may  be  done  at  any  time  after 
the  delivery  of  the  note.  Elkins  v. 
Wolfe,  44  111.  App.  376. 

Blanks  in  warrants  of  attorney  may 
be  read  as  though  the  name  of  the 
party  against  whom  judgment  is  con- 
fessed had  been  inserted.  Packer  v. 
Roberts,  140  111.  671. 

A  printed  blank  warrant  in  which 
the  date  was  omitted,  which  authorized 
the  confession  of  judgment  on  a  note, 
describing  it  as  bearing  even  date  here- 
with, a  note  and  warrant  being  upon  the 
same  piece  of  paper,  was  held  to  be 
sufficient.  Richards  v.  Globe  Bank,  12 
Wis.  692. 

A  printed  blank  warrant  in  a  lease 
was  held  not  to  be  void  for  uncertainty 
because  some  of  the  blanks  were  not 
filled  in,  such  omissions  not  render- 
ing the  instrument  ambiguous.  Links 
V.  Mayer,  22  111.  App.  489.  But  this 
would  not  be  true  where  the  omissions 
were  such  as  to  render  the  instrument 
uncertain  and  ambiguous.  Chase  v. 
Dana,  44  111.  262;  Morris  v.  Bank  of 
Commerce,  67  Tex.  602. 


108 


Volume  5. 


6088. 


CONFESSION  OF  JUDGMENT. 


6088. 


In  witness  whereof,  I  have  hereunto  set  my  handand  seal  the  ninth 
day  of  February^  one  thousand  eight  hundred  and  ninety-seven. 

Richard  Roe.  ^ 

Signed  and  delivered  in  the  presence  of 

Banks  Belk, 
T.  M.  Hughes . 
United  States  of  America.  1 
State  of  Nebraska,  >■  ss. 

County  of  Col/ax.  ) 

Be  it  known,  that  on  the  ninth  day  of  February,  one  thousand  eight 
hundred  and  ninety-seven,  before  me,  a  notary  public  in  and  for  said 
county  and  state,  personally  appeared  Richard  Roe,  above  named, 
who  is  to  me  known  to  be  the  person  described  in  and  who  executed 
the  above  warrant  of  attorney,  and  acknowledged  the  same  to  be  his 
voluntary  act  and  deed. 

In  testimony  whereof,  I  have  hereunto  subscribed  my  name  and 
affixed  my  official  seal,  the  day  and  year  last  above  written. 

(seal)  Norton  Porter.,  Notary  Public.^ 

Form  No.  6  o  8  8  .' 

To  any  one  of  the  Attorneys  of  the  Supreme  Court  of  Judicature  of 
the  State  of  New  Jersey,  or  any  other  Court  of  Record  in  said 
State: 
These  are  to  desire  and  authorize  you  to  appear  for  me,  Richard 


1.  Need  Not  be  Under  Seal.  —  Truett  v. 
Wain  Wright,  9  111.  411;  Kneedler's  Ap- 
peal, 92  Pa.  St.  428;  Alexander  v. 
Alexander,  85  Va.  353;  Kinnersley  v. 
Mussen,  5  Taunt.  264;  Brutton  v.  Bur- 
ton, I  Chit.  Rep.  707,  18  E.  C.  L.  209. 
Though  formerly  it  was  required  to  be 
under  seal.     3  Black.  Com.  397. 

2.  Host  be  acknowledged,  as  required 
of  deeds,  in  some  jurisdictions. 

Missouri.  —  Rev.  Stat.  (l888),  §  2232. 

Oklahoma.  —  Stat.  (1893),  §  4294.  See 
also  list  of  statutes  cited  supra,  note 
2,  p.  48,  for  similar  provisions  in  other 
states. 

Proof  of  execution  of  wcurant  of  attor- 
ney should  be  made  before  the  judg- 
ment is  confessed,  and  when  the 
judgment  is  confessed  in  vacation  the 
evidence  of  that  fact  must  appear  in 
the  record.  Iglehart  v.  Chicago  M.  & 
F.  Ins.  Co..  35  111.  514;  Gardner  v. 
Bunn,  132  111.  409.  But  a  recital  in 
judgment  of  proof  of  execution  of  war- 
rant is  sufficient  though  no  affidavit 
thereon  appears  in  the  record.  Iglehart 
V.  Church,  35  111.  255.  The  following 
affidavit  may  be  used  for  this  purpose: 
"State  of  Illinois,  \  Samuel  Short  of 

Cook  County.  \  '  Chicago  in  said 
county  of  Cook,  being  duly  sworn,  de- 
poses and  says  that   he  is  acquainted 


with  the  handwriting  of  said  defendant 
Richard  Roe,  the  maker  of  the  annexed 
note  and  power  of  attorney,  and  depo- 
nent further  says  that  the  signature  to 
the  said  note  and  power  of  attorney  is 
the  genuine  signature  of  said  Richard 
Roe.  Samuel  Short. 

Subscribed  and  sworn  to  before  me 
this  first  day  of  November,  a.  d.  1897. 
Calvin  Clark,  Clerk." 

3.  New  Jersey. — Gen.  Stat.  (1896),  p. 
172,  %\  et  seq. 

Included  in  the  body  of  any  bond,  bill, 
or  other  instrument,  for  the  payment 
of  money,  shall  be  void  and  of  none  ef- 
fect.    N.  J.  Gen.  Stat.  (1895),  p.  172,  ^  i. 

A  warrant  by  two  persons  authorizing 
judgment  to  be  confessed  "  against  us  " 
does  not  authorize  the  entry  of  a  judg- 
ment against  one  of  them.  Hunt  v. 
Chamberlain,  8  N.  J.  L.  336.  But  in 
Croasdell  v.  Tallant,  83  Pa.  St.  193,  a 
warrant  embraced  in  a  promissory  note, 
the  note  commencing  thus,  "or  either 
of  us  promise  to  pay,"  the  warrant 
running  in  these  words,  "  and  we  em- 
power any  attorney  to  appear  for  us 
and  confess  judgment  against  us,"  etc., 
was  held  to  authorize  the  entering  of  a 
judgment  against  the  two  survivors 
upon  the  death  of  one  of  the  makers. 

The  bail  piece,  which  may  be  annexed 


109 


Volume  5. 


6088.  CONFESSION  OF  JUDGMENT.  6088. 

Roe,  in  the  said  Supreme  Court,  or  in  any  other  court  of  record  in 
the  said  state  of  New  Jersey,  or  before  any  justice  or  judge  of 
said  courts,  in  term  time  or  in  vacation  as  of  any  term  thereof, 
past,  present  or  to  come  ;  and  then  and  there  to  receive  a  declara- 
tion against  me  at  the  suit  of  John  Doe  of  a  plea  of  trespass  on 
the  case  upon  promises  upon  a  promissory  note  given  by  me 
to  the  said  John  Doe  bearing  date  the  ninth  day  of  February,  one 
thousand  eight  hundred  and  ninety-seven,  for  the  sum  of  five  hun- 
dred dollars,  payable  on  demand  to  John  Doe  or  to  his  order,  for 
value  received,  without  defalcation  or  discount,  and  then  and  there 
to  confess  such  action  and  a  judgment  thereon  against  me  in 
favor  of  the  said  John  Doe  for  the  sum  oi  five  hundred  do\\si.r?,  dam- 
ages, besides  costs,  being  the  amount  due  on  said  promissory  note, 
the  said  judgment  to  be  thereupon  forthwith  entered  up  of  record 
against  me  and  execution  issue  thereon  accordingly;  and  for  so  doing 
this  shall  be  your  sufficient  warrant  and  authority.  And  I  do  hereby 
release  and  authorize  you  to  release,  any  errors  that  may  happen  to 
be  made  in  the  confessing  and  entering  up  of  such  judgment,  or  in 
the  form  or  actual  issuing  of  any  execution  thereon  against  me. 

Witness,  my  hand  and  seal  this  ninth  day  of  February,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  ninety-seven. 

Richard  Roe.     (seal) 

Sealed  and  delivered  in  the  presence  of 

Banks  Belk, 
T.  M.  Hughes. 

to  or  indorsed  upon  the  warrant  of  at-  of  three  hundred  and  ninety-eight  dollars 
torney,  may  be  as  follows  :  with  interest  at  the  rate  of  six  per  cent. 
''Essex  Circuit  Court.  per  annum  until  paid.     Now  therefore, 
Of  the  February  Term,  i89<P.  in  consideration  of  the  premises,  we  do 
Essex  County,  ss.  hereby   make,  constitute   and    appoint 
Richard  Roe,  having  been  served  with  Daniel  Webster,  or  any  attorney  of  any 
process,    is  delivered  to  bail  to  Samuel  court  of  record,  to  be  our  true  and  law- 
Short  and  Solomon  Smith,  both  of  the  ful  attorney  irrevocable  for  us  and  in 
city  of  Newark,  in  the  county  of  Essex,  our  name  and  stead  to  enter  our  appear- 
state  of  New  Jersey,  at  the  suit  oi  John  ance  before  any  court  of  record  in  any 
Doe  in  a  plea  of   trespass  on    the  case  term  time  or  in  vacation   in  any  of  the 
upon  promises.       Jeremiah  Mason,  states  or  territories  of  the  United  States 
Attorney  for  Defendant."  at  any  time  after  the  said  note  becomes 
Wisconsin.  —  Sand.  &  B.  Anno.  Stat,  due,  to  waive  the  service  of  process  and 
Wis.  (1889),  ^  28q6,  provides  that  in  case  to  confess  judgment  in  favor  of  the  said 
the  answer  is  signed  by  an  attorney  an  John  Doe  or   his  assigns  on  said  note 
instrument   authorizing   confession   of  for  the  above  sum  for  so  much  as  shall 
judgment  or  entry  shall  be  produced  to  appear    to   be    due    according    to    the 
the  court  or   judge  signing  the  judg-  tenor  and  effect  of  said  note,  and  inter- 
ment and  shall  be  made  a  part  of  the  est  thereon  at  the  rate  of  six  per  cent, 
judgment-roll.      The  following  form  of  per  annum  from  the  day  of  entry  of  the 
power  of  attorney  is  substantially  the  said  judgment,  together  with  costs,  and 
same  as  that   used   in    Remington    v.  also  to  file  a  cognovit   for  amount  that 
Cummings,  5  Wis.  139  :  may  be  so  due  and  to  release  all  errors 
"  Know  all   men  by  these  presents:  that  may  intervene  in  entering  up  said 
That  whereas  the  subscriber  is  justly  in-  judgment  or  in  issuing  execution  there- 
debted  toy(£»A«Z><?^  upon  a  certain  prom-  on      Hereby   ratifying    all    which   our 
issory  note  bearing  above   date  here-  said  attorneys  may  do  by  virtue  hereof, 
with   payable  sixty  days   after  date  to  Witness  my  hand  and  seal  at  Mikvau- 
John  Doe   or   order    at   the  Merchants  kee  this  twenty-second  day  of  December, 
National  Bank  of  Milwaukee  for  the  sum  1897.  Richard  Roe.    (seal)  " 

110  Volume  5. 


6089. 


CONFESSION  OF  JUDGMENT. 


6089. 


2.  Embraced  in  Another  Instrument.^ 

Form  No.  6089 . 

Know  all  men  by  these  presents,  that  I,  Richard  Roe,  of  New- 
castle, county  and  state  of  Delaware,  am  held  and  firmly  bound  unto 
John   Doe   of   Kent,    county    and    state    of   Delaware,    in   the   sum 


This  section  does  not  require  an  "  in- 
strument authorizing  judgment  to  be 
confessed  "  to  be  distinct  from  the  bond 
or  note.  Sloane  v.  Anderson,  57  Wis. 
123. 

1.  Embraced  in  the  body  of  a  promisiory 
note  and  forming  a  part  thereof,  in 
Illinois  (Keith  v.  Kellogg,  97  111.  151), 
was  the  following  warrant  of  attorney 
authorizing  confession  of  judgment 
upon  the  note: 

"  And  in  case  said  sum,  together  with 
accrued  interest  thereon,  shall  not  be 
paid  when  due,  I  authorize  and  em- 
power any  attorney  at  law  in  the  state 
of  Illinois  to  appear  before  any  court  of 
record  in  said  state  and  confess  judg- 
ment for  the  above  mentioned  sum  and 
the  accrued  interest  thereon,  together 
with  costs  of  suit  and  %4^g.oo  for  attor- 
ney's fees,  said  attorney's  fees  to  be  in- 
cluded in  said  judgment  as  a  part  of 
damages  on  said  note,  and  to  release 
all  errors  and  waive  all  proceedings  in 
the  nature  of  a  stay  of  execution,  appeal 
or  petition  in  error.  In  witness  whereof 
I  have  hereunto  subscribed  my  name 
and  affixed  my  seal  this  twenty-third 
day  oi  January,  A.  D.  1 879. 

H.  M.  Lyford.     (seal)" 

Embraced  in  a  promissory  note  and 
forming  a  part  thereof,  in  Pennsylvania, 
a  warrant  of  attorney  may  be  as  follows: 

"  And  I  do  hereby  empowery>r(?w/aA 
Mason,  Esq.,  attorney  of  the  Court  of 
Common  Pleas  of  Allegheny  county,  or 
any  other  attorney  of  said  court,  or  any 
court  of  record  in  the  state  of  Pennsyl- 
vania, to  appear  for  me  and,  with  or 
without  declaration  filed,  to  confess 
judgment  against  me  upon  this  note 
for  the  sum  therein  mentioned,  as  of  the 
last,  next  or  any  other  subsequent  term, 
with  costs  of  suit,  and  release  of  all 
errors,  with  stay  of  execution  for  three 
months  after  the  entry  of  said  judg- 
ment." 

In  Texas,  a  note  signed  by  several, 
concluding  in  the  following  words: 
"  In  case  of  the  nonpayment  of  the 
above  note  at  maturity,  we  hereby  au- 
thorize any  licensed  attorney  at  law  to 
appear  for  us  in  court,  and  to  accept 
service,     waive    process     and    confess 


judgment  in  favor  of  the  legal  holder 

of  said  note  against for  the  amount 

of  said  note  and  interest,  with  ten  per 
cent,  attorney's  fees  additional,"  was 
held  not  to  authorize  confession  of 
judgment  against  all  the  makers  or  any 
particular  one  of  them.  Morris  v.  Bank 
of  Commerce,  67  Tex.  602. 

In  Virginia,  the  following  note  and 
warrant  of  attorney  may  be  used: 

"  One  year  after  date,  for  value  re- 
ceived, I  promise  to  ^^Ly  John  Doe  the 
just  and  full  sum  of  one  thousand  dol- 
lars {%i,ooo.o6),  with  legal  interest 
thereon  from  February  qth,  1897.  I 
hereby  waive  the  benefit  of  my  home- 
stead exemption  as  to  this  debt.  Given 
under  my  hand  and  seal,  at  Charlottes- 
ville this  ninth  day  oi  February,  1897. 
Richard  Roe.     (seal) 

And  I  hereby  authorize  and  appoint 
Jeremiah  Alason  my  true  and  lawful 
attorney  in  fact  for  me  and  in  my  name 
to  appear  in  the  clerk's  office  of  the  Cir. 
cuit  Court  of  the  county  oi  Albemarle,  in 
the  state  of  Virginia,  in  an  action  of 
debt  to  be  brought  against  me  at  the 
suit  of  the  S2\AJohn  Doe  on  the  above 
bond  at  any  time  after  the  maturity 
thereof,  and  confess  judgment  thereon 
against  me  for  the  sum  of  one  thousand 
dollars,  with  interest  thereon  from  the 
ninth  day  of  February,  1897,  t'H  paid, 
and  the  costs  of  the  suit.  And  I  hereby 
release  all  manner  of  error  in  the  enter- 
ing of  said  judgment,  or  any  process 
or  proceedings  thereon.  Witness  the 
following  signature  and  seal,  this  ninth 
day  oi  February,  1897, 

Richard  Roe.     (seal)  " 

The  word  "holder"  found  in  a  promis- 
sory note  containing  a  power  of  at- 
torney to  confess  judgment  without 
process  in  favor  of  the  "  holder"  at  any 
time  is  construed  in  Richards  v.  Bar- 
low, 140  Mass.  218. 

Attached  to  a  sealed  note,  payable  to 
the  payee  or  bearer,  a  warrant  of  attor- 
ney authorizing  "  any  attorney  at  law 
at  any  time  after  the  above  sum  becomes 
due,  with  or  without  process,  to  appear 
for  us  in  any  court  of  record  in  the 
state  of  Ohio  and  confess  judgment," 
etc.,  conferred  no  authority  to  confess 


111 


Volume  5. 


6089. 


CONFESSION  OF  JUDGMENT. 


6089. 


of  one  thousand  dollars,  lawful  money  of  the  United  States  of 
America,  to  be  paid  to  the  said  John  Doe  or  his  certain  attorney, 
executors,  administrators  or  assigns,   to  which    payment  well   and 


judgment  against  the  maker  of  the  note 
in  favor  of  the  holder  to  whom  the 
payee  had  transferred  it.  Spence  v. 
Emerine,  46  Ohio  St.  433. 

Embraced  in  a  lease  and  forming  a  part 
thereof,  in  Pennsylvania,  a  warrant  of 
attorney  may  be  as  follows:  "And 
further  the  said  Richard  Roe  hereby 
empowers  any  attorney  of  any  court  of 
record  in  the  said  county  oi  Allegheny, 
or  elsewhere,  to  appear  for  him  and 
confess  judgment  against  him  for  such 
amount  as  may  at  any  time  be  due  and 
in  arrears  for  rent,  stipulated  to  be  paid 
as  aforesaid,  together  with  costs." 

A  lease  embracing  a  provision  au- 
thorizing an  attorney  to  appear  for  the 
lessee  and  confess  judgment  in  eject- 
ment has  been  held  to  be  a  sufficient 
warrant  of  attorney.  Betz  v.  Valer,  39 
Leg.  Int.  (Pa.)  190. 

Embraced  in  a  judgment  bond  with 
forfeiture  clause,  the  warrant  of  attorney 
is  often  as  follows: 

"  Know  all  men  by  these  presents, 
that  we,  Richard  Roe  and  Samuel  Short, 
both  of  Kent,  county  and  state  of  Dela- 
ware, are  held  and  firmly  bound  unto 
John  Doe  of  Kent,  county  and  state  of 
Delaware,  in  the  sum  of  two  thousand 
dollars,  lawful  money  of  the  United 
States  of  America,  to  be  paid  to  the 
ssixdjohn  Doe  or  his  certain  attorney, 
executors,  administrators  or  assigns, 
to  which  payment  well  and  truly 
to  be  made  we  jointly  and  sever- 
ally bind  ourselves,  our  heirs,  execu- 
tors and  administrators,  firmly  by  these 
presents.  Sealed  with  our  seals,  and 
dated  this  ninth  day  of  February,  in  the 
year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-seven. 

The  condition  of  this  obligation  is 
such,  that  if  the  above  bound  Richard 
Roe  and  Samuel  Short,  their  heirs,  ex- 
ecutors or  administrators,  or  any  of 
them,  shall  and  do  well  and  truly  pay  or 
cause  to  be  paid  unto  the  above  named 
John  Doe,  his  certain  attorney,  execu- 
tors, administrators  or  assigns,  the  full 
sum  of  one  thousand  dollars,  lawful 
money  of  the  United  States  of  America, 
with  lawful  interest  for  the  same  {Here 
state  times  and  manner  of  making  pay- 
ments), on  or  before  the  ninth  day  of 
February,  in  the  ye^r  of  our  Lord  one 
thousand  eight  hundred  and  ninety- 
eight,  without  fraud  or  further  delay, 

1 


then  this  obligation  to  be  void  and  of 
no  effect,  or  else  shall  be  and  remain 
in  full  force  and  virtue. 

Provided,  however,  and  it  is  hereby 
expressly  agreed,  that  if  at  any  time 
default  shall  be  made  in  the  payment 
of  said  principal  debt  and  interest  as 
the  same  becomes  due  and  payable,  or 
any  part  thereof,  for  the  space  of  thirty 
days  after  any  payment  thereof  shall 
fall  due,  then  and  in  such  case  the 
whole  principal  debt  then  unpaid  shall, 
at  the  option  of  the  saXA  John  Doe,  his 
executors,  administrators  or  assigns, 
become  due  and  payable  immediately, 
and  payment  of  said  principal  then  un- 
paid and  all  interest  thereon  may  be 
enforced  and  recovered  at  once,  any- 
thing herein  contained  to  the  contrary 
thereof  notwithstanding. 

And  further,  we  do  hereby  jointly 
and  severally  authorize  and  empower 
any  attorney  or  prothonotary  of  any 
court  of  record  in  the  state  oi  Delaware, 
or  elsewhere,  to  appear  for  us  and  each 
or  either  of  us,  at  the  suit  of  the  said 
John  Doe,  his  executors,  administrators 
or  assigns,  and  thereupon  to  confess 
judgment  for  the  above  penalty  to  the 
saXd  John  Doe,  his  executors,  adminis- 
trators or  assigns,  as  of  the  last,  next  or 
any  other  term  or  time  after  the  date 
hereof. 

And  further,  we  do  hereby  jointly 
and  severally  release  all  and  all  man- 
ner of  error  or  errors  in  any  such 
judgment,  and  execution  to  be  issued 
thereon. 

Richard  Roe.       (seal) 
Samuel  Short,     (seal) 

Signed,  sealed  and  delivered  in  the 
presence  of  Banks  Belk. 

T.  M.  Hughes." 

Annexed  to  a  bond  may  be  a  warrant 
of  attorney  authorizing  an  attorney  to 
confess  judgment  upon  the  bond;  and 
such  warrant  may  be  as  follows: 
"  To  any  Attorney  at  Law  of  any  Court 
of  Record  of  the  State  of  New  Jer- 
sey or  elsewhere: 

These  are  to  authorize  you  to  appear 
for  me  in  any  of  the  said  courts,  in  an 
action  of  debt  brought  or  to  be  brought 
against  me  at  the  suit  of  John  Doe 
named  in  the  following  bond,  my  ex- 
ecutors, administrators  or  assigns,  and 
thereupon  confess  judgment  against 
me  as  of  the  last  or  any  subsequent 
12  Volume  5. 


6089.  CONFESSION  OF  JUDGMENT.  6089. 

truly  to  be  made  I  bind  myself,  my  heirs,  executors  and  administra- 
tors, firmly  by  these  presents. 

Sealed  with  my  seal,  and  dated  this  ninth  day  of  February^  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-seven. 

The  condition  of  this  obligation  is  such,  that  if  the  above  bound 
Richard  Roe,  his  heirs,  executors  or  administrators,  or  any  of  them, 
shall  and  do  well  and  truly  pay,  or  cause  to  be  paid  unto  the  above 
named  John  Doe,  his  certain  attorney,  executors,  administrators  or 
assigns,  the  full  sum  of  two  hundred  and  fifty  dollars,  lawful  money  gf 
the  United  States  of  America,  with  lawful  interest  for  the  same,  at 
the  times  and  in  the  manner  following,  to  wit:  one  hundred  dollars 
on  the  first  day  of  Ju/y  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-seven;  one  hundred  dollars  on  the  first  day  of 
December  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-seven;  and  the  balance  of  said  sum  on  or  before  the  ninth  day 
of  February  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-eight,  without  fraud  or  further  delay,  then  this  obligation  to  be 
void  and  of  no  effect,  or  else  shall  be  and  remain  in  full  force 
and  virtue. 

And  further,  I  do  hereby  authorize  and  empower  any  attorney  or 
prothonotary  of  any  court  of  record  in  the  state  of  Delaware,  or  else- 
where, to  appear  for  me  at  the  suit  of  the  said  John  Doe,  his  execu- 
tors, administrators  or  assigns,  and  thereupon  to  confess  judgment 
for  the  above  penalty  to  the  said  John  Doe,  his  executors,  adminis- 
trators or  assigns,  as  of  the  last,  next  or  any  other  term  or  time 
after  the  date  hereof. 

And  further,  I  do  hereby  release  all  and  all  manner  of  error  or 
errors  in  any  such  judgment,  and  execution  to  be  issued  thereon. 

Richard  Roe.     (seal) 

Signed,  sealed  and  delivered  in  the  presence  of 

Banks  Belk, 
T.  M.  Hughes. 

term,  for  the  sum  mentioned  in   the  February,  one  thousand  eight  hundred 

said   obligation,    with    costs    of    suit,  and  ninety-seven. 

agreeably  to  law,  hereby  releasing  all  Richard  Roe.     (seal) 

errors,  and  this  shall  be  your  warrant.         Signed,  sealed  and  delivered  in  the 

In  witness  where  of,  I  have  hereunto  presence  of         Banks  Belk. 
set  my  hand  and  seal  this  ninth  day  of  T.  M.  Hughes^ 

5  E.  of  F.  P.  —  8.  113  Volume  5. 


CONSIDERATION. 

I.  WANT  OF  Consideration,  114. 
II.  FAILURE  OF  Consideration,  117. 

1.  Partial  Failure,  117, 

a.  In  General,  117. 

b.  False  Representations  as  to  Value  of  Real  Estate,  118. 

c.  Want  of  Title  to  Part  of  Land  Purchased  by  Executory 

Contract,  120. 

d.  Failure  to  Procure  Assignment  of  Lease  of  Property 

Sold  to  Defendant,  120. 

2.  Total  Failure,  121. 

a.  Defeasance,  121. 

b.  Fraud  in  Selling  Horse  of  No  Value,  121. 

c.  Breach  of  Warranty  in  Sale  of  Chattel,  122. 

d.  Failure  to  Make  Good  Title  to  Real  Estate,  122. 

e.  Nonperformance  of  Condition  upon  which  Subscription 

for  Stock  was  Made,  124. 

III.  ILLEGAL  CONSIDERATION,  124. 

1.  Note  Given  to  Compound  Offense,  1 24. 

8.  Note  Given  for  Money  Used  or  Lost  in  Gaming,  126. 

3.  Note  Given  for  Liquors  Sold  Without  License,  128. 

4.  Contract  Against  Public  Policy,  128. 

IV.  Consideration  tainted  with  usury,  129. 

CROSS-REFERENCE. 

For  matters  of  Substantive  Law,  see  the  title  CONSIDERA  TION,  6 
American  and  English  Encyclopaedia  of  Law  (2d.  ed.), 
p.  667.  / 

I.  WANT  OF  Consideration.! 

1.  How  Pleaded  —  Genera/  Allegation  v.   Brumbaugh,   7   Kan.   343;  Foren  7'. 

that    Contract   was    Without    Consider-  Dealey,  4  Oregon    93.     But  a  general 

ation.  —  A   general    allegation    that    a  averment  of  this  character  is  controlled 

note   or   contract  "was    without    any  and  completely  nullified  by  a  statement 

consideration  whatever"  constitutes  a  of  facts  and  circumstances  in  the  answer 

good   defense.     Fisher   v.    Fisher,  113  showing  that  it  is  untrue  and  that  there 

Ind.   474;    Beard  v.   Lofton,    102    Ind.  was,  in  fact,  a  good  and  sufficient  con- 

408;    Moyer   v.   Brand,    102    Ind.    301;  sideration.     McCormick   v.    Barry,   01 

Moore   v.    Boyd,    95    Ind.    134;    Bush  Neb.   207;    Foren  v.  Dealey,  4   Oregon 

V.  Brown,   49  Ind.  573;  Hunter  z/.  Mc-  93.     An   answer   "that   defendant   re- 

Laughlin,43  Ind-  38;  Billan  z/.  Herckle-  ceived  no  consideration  for  said   note" 

brath,  23  Ind.  71;  Barner  v.  Morehead,  is  bad  on  demurrer.    Bingham  v.  Kim- 

22  Ind.  354;  Swope  v.  Fair,  18  Ind.  300;  ball,  33  Ind.  184;  Anderson  v.   Meeker, 

Webster  v.  Parker,  7  Ind.  185;  Miller  31  Ind.  245.     Theanswer  should  allege, 

114  Volume  5. 


6090. 


CON  SID  ERA  TION. 


6090. 


Form  No.  6090. 
(Precedent  in  Linn  v.  State  Bank,  2  111:  87.)' 
[In  the  Jackson  Circuit  Court. 

William  Linn 


Term,  i85(?. 


ats. 


>  Debt.]2 


Tht  President  and  Directors  of  the 
State  Bank  of  Illinois. 
And  the  said  defendant  comes  and  defends  the  wrong  and  mjury, 
when,  etc.,  and  claims  oyer  of  the  said  supposed  writing  obligatory 
in  the  said  plaintiffs'  declaration  mentioned,  and  it  is  read  to  him  in 
these  words :  (^Here  was  set  out  a  copy  of  the  sealed note.^  Which  being 
read  and  heard,  the  said  defendant  says  that  the  said  plaintiffs  ought 
not  to  have  or  maintain  their  said  action  against  him,  this  defendant, 
because  he  says  that  the  said  writing  obligatory  was  sealed  and 
delivered  by  him  to  the  said  plaintiffs  for  the  notes  or  bills  issued  and 
emitted  by  the  said  President  and  Directors  of  the  said  State  Bank  of 
Illinois,  under  and  by  virtue  of  an  act  of  the  General  Assembly  of 
the  said  State,  entitled  "An  act  establishing  the  State  Bank  of  Illi- 
nois," passed  in  the  year  of  our  Lord  1821,  which  said  act  of  the 
General  Assembly  is  here  inserted,  and  made  a  part  of  this  plea.  By 
which  said  act  the  said  notes  or  bills  of  said  bank  are  not  redeem- 
able or  payable  by  said  bank  until  after  the  expiration  of  ten  years 
from  and  after  the  passage  of  the  said  act  incorporating  said  bank, 
and  from  and  after  the  time  said  notes  or  bills  should  be  emitted 
and  issued  by  said  bank,  which  said  notes  or  bills  were  issued  or 


not  that  no  consideration  was  received 
by  the  party  pleading,  but  that  no  con- 
sideration existed  for  the  execution  of 
the  contract.  4  Encycl.  of  PI.  and  Pr. 
948. 

Facts  Showing  Want  of  Consideration, 
—  In  some  jurisdictions  a  plea  of  want 
of  consideration  must,  besides  showing 
the  circumstances,  distinctly  allege 
that  there  was  no  other  consideration 
than  that  mentioned.  Boden  v.  Wright, 
12  C.  B.  445,  74  E.  C.  L.  444;  Tittle  v. 
Bonner,  53  Miss.  578.  But  in  such  a 
case,  where  the  defendant  pleads  want 
of  consideration  without  stating  the 
facts  upon  which  the  defense  is  based, 
the  answer  is  assailable,  not  by  de- 
murrer but  by  motion  for  more  specific 
statement.  Simpson  Centenary  Col- 
lege V.  Bryan,  50  Iowa  293.  And  see 
Chamberlain  v.  Painesville,  etc.,  R. 
Co.,  15  Ohio  St.  225,  where  it  was  held 
that  an  answer  that  a  note  is  wholly 
without  consideration  is  sufficient  to  let 
in  evidence  to  impeach  or  sustain  the 
consideration  if  the  plaintiff  joins  issue 
without  requiring  a  statement  of  the 
facts  upon  which  the  defense  is  based. 

Sufficient  Facts.  —  An  answer,  in  an 


action  on  a  nonnegotiable  note  by  the 
assignee  against  the  maker,  which 
shows  that  the  maker  being  security  for 
the  payee  the  latter  deposited  with  him 
a  chattel  as  a  pledge  for  his  indemnity, 
and  thereupon  a  note  was  given  merely 
as  evidence  of  the  deposit,  is  a  good 
plea  of  want  of  consideration.  Doan  v. 
Moss,  20  Mo.  297. 

1.  The  trial  court  sustained  a  de- 
murrer to  this  plea,  but  upon  error  the 
supreme  court  reversed  the  judgment, 
holding  that  bills  issued  by  the  state 
bank  were  bills  of  credit  issued  by  the 
state  within  the  meaning  of  the  con- 
stitution of  the  United  States  and  were 
therefore  void.  Linn  v.  State  Bank, 
2  111.  87,  overruling  Snyder  v.  State 
Bank,  i  111.  161.  See  also  Craig  v. 
Missouri,  4  Pet.  (U.  S.)  410;  Byrne  v. 
Missouri,  8  Pet.  (U.  S.)  40;  Briscoe  t'. 
Kentucky  Com.  Bank,  11  Pet.  (U.  S.) 
257;  Darrington  v.  Branch  of  Alabama 
State  Bank,  13  How.  (U.  S.)  12. 

2.  The  words  and  figures  enclosed  by 
[  ]  will  not  be  found  in  the  reported 
case,  but  have  been  added  to  render  the. 
form  complete. 


115 


Volume  5. 


6091.  CONSIDERATION.  6092. 

emitted    on    the day  o[  July,    iS21,    and    the    emission    and 

delivery  thereof  by  the  said  plaintiffs  to  this  defendant  were  the  sole 
and  only  consideration  for  the  said  writing  obligatory  so  executed 
as  aforesaid,  and  for  no  other  consideration  whatever  was  the 
said  writing  obligatory  so  executed  as  aforesaid,  for  no  other  con- 
sideration whatever  was  the  said  writing  obligatory  executed,  sealed 
and  delivered  by  the  defendant  to  the  said  plaintiffs;  which  said 
notes  or  bills  so  emitted,  issued  and  delivered  as  aforesaid,  by  the 
said  plaintiffs  to  this  defendant,  are  bills  of  credit  within  the  true 
intent  and  meaning  of  the  Constitution  of  the  United  States;  and  so 
the  defendant  says,  that  the  said  writing  obligatory  in  the  plaintiffs' 
declaration  mentioned,  was  sealed  and  delivered  by  this  defendant 
to  the  said  plaintiffs,  without  his  having  received  of  and  from  said 
plaintiffs  any  good  or  valuable  consideration  therefor,  and  this  he  is 
ready  to  verify,  wherefore  he  prays  judgment  if  the  said  plaintiffs 
ought  to  have  or  maintain  their  said  action  thereof  against  him,  this 
defendant,  etc. 

S.  Breese,  for  defendant. 

Form  No.  6091. 

(Bullitt's  Civ.  Code  Ky.  (1895),  p.  635,  No.  96.) 

Lee  Circuit  Court. 
John  Doe,  plaintiff,       ^ 

against  >•  Answer  of  Defendant, 

Richard  Roe,  defendant.  ) 

The  Ci^itwdidLXit,  Richard  Roe,  says  that  the  writing  (or  note  or  agree- 
ment) in  the  petition  mentioned,  was  executed  without  any  con- 
sideration. 

Jeremiah  Mason,  Attorney. 
The  defendant,  Richard  Roe,  says  that  the  statements  (or  that  he 
believes  the  statements)  of  the  foregoing  answer  are  true. 

Richard  Roe. 
Signed  and  sworn  to  by  said  Richard  Roe  this  first  day  of  February^ 
i898,  before  me,  clerk  of  the  Zee  Circuit  Court. 

John  Hancock,  Clerk. 

Form  No.  6092. 

State  of  North  Dakota,  \  In  the  District  Court, 
County  of  Burleigh.       f  Sixth  Judicial  District. 

John  Doe,  plaintiff,      \ 

against  >•  Answer. 

Richard  Roe,  defendant.  ) 

The  defendant  answering  the  plaintiff's  complaint  says: 

I.  That  the  note  therein  mentioned  was  given  by  the  defendant 
solely  for  and  on  account  of  certain  goods  {naming  them),  sold  and 
delivered  to  the  defendant  by  the  plaintiff,  and  without  any  other 
consideration  therefor.* 

II.  That  the  plaintiff  was  not  the  owner  of  said  goods  so  sold  and 
delivered  to  the  defendant,  but  the  same  were  the  property  of  one 
Samuel  Short,  who,  in  an  action  of  replevin,  on  the  third  day  of 

116  Volume  5. 


6093. 


CON  SID  ERA  TION. 


6093. 


January.  i898,  recovered  said  property  from  the  defendant,  whereby 
the  defendant  has  received  no  consideration  for  said  note. 

Joseph  Story,  Defendant's  Attorney. 
(  Verification.^- 

II.  FAILURE  OF  CONSIDERATION.2 

1.  Partial  Failure.^ 

a.  In  GeneraL  ^e 

Form  No.  6093. 

(Precedent  in  Purkett  v.  Gregory,  3  111.  44.)* 

[(7/*//<f  of  court  and  cause  as  in  Form  No.  6090^Y' 

And  the  said  defendants  come  and  defend,  etc.,  and  say  that  as  to 


1.  Veriflcation.  —  For  the  form  of  veri- 
ficaiion  in  a  particular  jurisdiction  see 
the  title  Verifications. 

2.  How  Pleaded.  —  In  pleading  a  fail- 
ure of  consideration,  the  facts  showing 
wherein  the  failure  of  consideration 
consists  must  be  alleged.  Sims  v.  Herz- 
feld,  93  Ala.  145;  Carmelich  v.  Mims, 
88  Ala.  335;  Ahren  v.  Willis,  6  Fla.  359; 
Applegate  v.  Crawford,  2  Ind.  579;  Mul- 
likin  V.  Latchem,  7  Blackf.  (Ind.)  136; 
Garrett  v.  Heaston,  5  Blackf.  (Ind.) 
349;  Sheldon  v.  Lewis,  97  111.  640; 
Christopher  v.  Cheney,  64  111.  26;  Parks 
V.  Holmes,  22  111.  522;  Vanlandingham 
V.  Ryan,  17  111.  25;  Evans  v.  Green 
County,  6  111.  654;  Swain  v.  Cawood,  3 
111.  505;  Sims  V.  Klein,  i  111.  302;  Brad- 
shaw  V.  Newman,  i  111.  133;  Poole  v. 
Vanlandingham,  i  111.  47;  Cornelius  v. 
Vanorsdall,  i  111.  23;  Billan  v.  Herckle- 
brath,  23  Ind.  71;  Swope  v.  Fair,  18 
Ind.  300;  Staley  v.  Ivory,  65  Mo.  74; 
Clifton  V.  Brundage,  25  Tex.  331; 
Luckie  v.  McGlasson,  22  Tex.  282;  4 
Encycl.  of  PI.  and  Pr.  950. 

As  to  when  partial  failure  may  be 
shown  under  a  plea  of  total  failure,  see 
4  Encycl.  of  PL  and  Pr.  951. 

Where  the  consideration  fails  from  a 
defect  in  goods  sold,  the  nature  of  the 
defect  should  be  stated  as  nearly  as  may 
be.  and  also  the  extent  of  the  deprecia- 
tion thereby  caused.  Castles  v.  Wood- 
house,  I  Code  Rep.  (N.  Y.  Super.  Ct.)  71; 
Deifendorfif  v.  Gage,  7  Barb,  (N.  Y.)  18. 
And  unless  it  be  alleged  that  the  prop- 
erty purchased  is  entirely  worthless  it 
should  be  alleged  that  the  defendant 
returned  or  offered  to  return  it.  Hyn- 
son  V.  Dunn,  5  Ark.  395. 

3.  For  other  pleas  of  partial  foilore  of 
consideration  see  as  follows:  Defective 
title  to  land    purchased    by  executory 


contract  and  in  defendant's  possession. 
Bullitt's  Civ.  Code  Ky.  (1895),  p.  636. 

Fraud  in  the  sale  of  land  conveyed 
with  warranty  of  title  and  in  defendant's 
possession.  Bullitt's  Civ.  Code  Ky. 
(1895),  p.  637. 

Mistake  as  to  quantity  of  land  pur- 
chased. Bullitt's  Civ.  Code  Ky.  (1895), 
P-  637- 

In  Morgan  v.  Printup,  72  Ga.  67,  the 
plea  was  held  to  show  a  partial  failure 
of  consideration.  Omitting  formal  parts 
it  was  as  follows: 

"Defendant  says  the  consideration 
for  which  the  note  for  the  one  6  H.  P. 
Scofield  engine  was  given  has  entirely 
failed,  because  he  says  plaintiffs  war- 
ranted said  engine  to  be  full  six-horse- 
power, and  to  be  in  good  condition,  in 
all  which  plaintiffs  were  mistaken,  the 
engine  not  being  full  six-horsepower, 
nor  was  it  in  good  condition,  but  was  a 
source  of  annoyance  and  expense  to 
the  defendant  almost  from  the  time  he 
first  bought  it  until  it  finally  broke 
down  entirely  and  is  now  worthless. 
And  of  this  he  puts  himself  upon  the 
country.  And  for  further  plea  in  this 
behalf,  defendant  says  actio  non,  etc., 
because  he  says  that  the  consideration 
of  the  gin  note  has  failed,  because  he 
says  that  the  gin  was  represented  as  a 
good  gin,  when,  on  the  contrary,  the 
ribs  of  said  gin  were  made  of  inferior 
soft  metal,  and  wore  out  the  first 
season." 

4.  The  circuit  court  sustained  a 
demurrer  to  this  plea,  but  the  supreme 
court  reversed  the  judgment  and  held 
that  the  plea  was  good  as  a  plea  of  par- 
tial failure  of  consideration.  Purkett 
V.  Gregory,  3  111.  44. 

5.  The  words  to  be  supplied  within  [  ] 
will  not  be  found  in  the  reported  case. 


117 


Volume  5. 


6094.  CONSIDERATION.  6094. 

one  hundred  and  sixty-three  dollars,  part  of  the  debt  in  the  petition 
mentioned,  the  plaintiff  actionem  non\  because  they  say  that  on  the 
23d  day  of  August,  iS36,  the  plaintiff  sold  to  these  defendants  certain 
parcels  of  land  situated  in  Illinois,  being  all  the  right  and  interest  of 
said  plaintiff  in  the  Illinois  Land  Association,  and  also  sold  the  defend- 
ants the  dividends  which  the  plaintiff  was  entitled  to  from  the  said 
association  from  the  sale  of  choice  lands  in  said  association;  and  the 
plaintiff  covenanted  and  agreed  with  defendants,  to  convey  said 
lands  to  defendants,  and  to  pay  to  the  association  presently,  to  wit, 
at  the  date  aforesaid,  the  amount  bid  by  said  plaintiff  for  choice  of 
lands  in  said  association,  and  that  said  defendants  should  receive  the 
dividend  which  said  plaintiff  was  entitled  to,  arising  out  of  the  pay- 
ment of  choice  money  as  aforesaid.  In  consideration  of  which  sale 
and  agreements  on  the  part  of  the  plaintiff,  the  defendants  executed 
the  note  in  the  petition  mentioned,  and  the  defendants  aver  that  the 
choice  money  to  which  the  plaintiff  was  entitled  from  the  association 
aforesaid,  and  which  the  said  plaintiff  covenanted  that  these  defend- 
ants should  receive,  amounted  to  the  sum  of  one  hundred  and  sixty- 
three  dollars.  And  they  further  aver  that  the  said  plaintiff  hath  not 
paid  the  amount  bid  by  him  for  choice  of  lands  in  said  association, 
in  consequence  of  which  failure  of  the  plaintiff  to  pay  said  associa- 
tion the  amount  bid  as  aforesaid,  the  defendants  have  not  received 
the  dividend  due  said  plaintiff,  as  said  plaintiff  covenanted  that  said 
defendants  should  receive.  Wherefore  the  defendants  say  that  the 
consideration  for  which  said  note  in  the  petition  mentioned  was 
given,  hath  failed  to  the  extent  of  one  hundred  and  sixty -three  dollars  as 
aforesaid,  all  which  they  are  ready  to  verify,  etc.  Wherefore  \{con- 
cluding  as  in  Form  No.  6090). Y" 

b.  False  Representations  as  to  Value  of  Real  Estate. 

Form  No.  6094. 

(Precedent  in  Reamer  v.  Bell,  79  Pa.  St.  293.)* 
[In  the  Court  of  Common  Fleas,  No.  2,  of  Allegheny  County. 
Thompson  Bell 
against 
Josiah  Reamer,  Wesley  Wil- 
son and  Samuel  Short,  co- 
partners under  the  name  of 
The  Mahoning  Iron  Com- 
jpany. 

Allegheny  County,  ss. 

Josiah  Reamer,  one  of  the  defendants  in  the  above  entitled  cause, 

1.  The  words  to  be  supplied  within  davit  stated  a  good  defense  against  the 
[  ]  will  not  be  found  in  the  reported  indorsee.  Omitting  the  formal  parts 
case.  the  affidavit  was  as  follows: 

2.  This  affidavit  was  held  sufficient  to  "  Affiant  purchased  ixom.  John  Row- 
put  the  plaintiff  on  proof  that  he  was  ley  the  lease  of  tavern  No.  j/  Diamond 
a  bona  fide  holder.  Square,  Pittsburgh,  and  certain  personal 

Precedent. — In  Moeck  v.  Littell,  82  property  therein  contained,  for  the  sum 
Pa.  St.  354,  it  was  held  that  the  affi-     of  %i,'joo;  affiant  paid  the  sum  of  $^00 

118  Volume  5. 


October  Htxm,  i875. 
No.  118. 


6094. 


CON  SID  ERA  TION. 


6094. 


being  duly  sworn  according  to  law,  deposes  and  says]^  that  as  depo- 
nent is  informed  and  verily  believes,  and  expects^  to  be  able  to  prove 
on  trial  of  this  cause,  the  said  plaintiff  has  no  title  to  the  note  sued 
on.  That  said  note  was  given  {inter  alia)  in  part  payment  of  the 
purchase  money  of  certain  property,  situated  in  Mahoning  county, 
Ohio,  sold  to  the  deponent  and  others  by  William  Dilworth,  Jr.  (payee 
of  said  note),  and  others,  and  said  note  was  secured  by  a  mortgage 
on  said  property.  That  suit  for  the  foreclosure  of  said"  mortgage  has 
lately  been  instituted  in  the  Court  of  Common  Picas  of  Mahoning 
county,  Ohio,  wherein  it  appears,  by  the  pleadings  and  by  an  affidavit 
filed  on  behalf  of  William  Dilworth,  Jr.,  that  said  William  Dilworth, 
Jr.,  claims  to  be  the  owner  of  the  note  sued  on  in  this  case.  And 
deponent  says  that  said  note  was  procured  by  false  and  fraudulent 
representations,  in  the  first  instance,  in  reference  to  the  value  of  the 
property,  in  part  payment  of  which  said  note  was  given;  and  that  the 
defendants  have  a  full,  just  and  legal  defense  to  the  payment  of  said 
note  and  to  the  foreclosure  of  the  mortgage  aforesaid,  in  this,  that 
the  consideration  therefor  has  failed;  [and  further  affiant  saith  not. 

Josiah  Reamer. 

Sworn  to  and  subscribed  before  me  \y\\s  first  day  of  October,  i875. 

(seal)  Norton  Porter,  Notary  Public] ^ 


in  cash,  and  gave  to  said  Rowley  two 
notes,  one  of  %soo,  payable  in  three 
months  after  date,  on  which  suit  has 
been  brought  and  judgment  entered, 
and  the  note  in  suit  for  %7oo,  of  which 
Jacob  Moeck,  Jr.,  is  the  maker;  that 
affiant  procured  the  same  to  be  indorsed 
by  Conrad  Moeck  and  Jacob  Moeck,  the 
present  defendant,  which  making  and 
indorsing  was  for  the  accommodation 
of  this  affiant,  and  at  the  same  time  for 
the  purpose  of  securing  the  said  John 
Rowley  in  his  purchase  money,  and 
affiant  says  that  the  defendant,  at  the 
time  of  the  indorsement  of  the  said 
note,  was  not  aware  of  the  amount  of 
the  same,  nor  the  real  object  for  which 
it  was  given.  Affiant  further  says  that 
a  large  portion  of  the  consideration  of 
said  notes  and  money  was  the  value  of 
certain  personal  property  alleged  to 
have  been  on  the  premises  at  the 
time  the  purchase  was  made,  and  which 
was  alleged  to  have  been  in  good  con- 
dition by  said  Rowley;  said  Rowley 
further  alleging  that  the  tavern  stand 
which  was  then  established  there,  and 
which  also  constituted  a  part  of  the 
consideration  of  said  notes  and  money, 
was  a  first-class  stand,  very  valuable, 
and  that  it  was  to  remain  in  the  condi- 
tion it  was  then,  at  the  time  of  the  pur- 
chase, ahoMl  January  ^th,  187J;  whereas, 
in  fact,  the  goods,  property,  etc. ,  alleged 
to  be  on  said  premises  at  the  time,  were 


almost  worthless,  and  the  better  portion 
of  them  were  after  the  said  purchase 
removed  off  the  premises  before  its  oc- 
cupation by  affiant,  by  either  the  said 
Rowley  or  some  person  acting  in  his 
behalf,  as  affiant  expects  to  be  able  to 
prove;  and  whereas,  also,  the  house 
was  not  a  good  or  first-class  stand,  and 
almost  entirely  worthless.  And  the 
said  Rowley  having  represented  that  it 
would  remain  in  the  condition  it  was 
then  was  also  an  inducement  for  affiant 
to  purchase.  Yet  the  same  was  in  a 
very  short  time  reduced  to  a  condition 
entirely  untenantable  and  had  to  be 
entirely  abandoned,  and  the  defendant 
avers  that  the  consideration  for  the  note 
in  suit  has  not  only  entirely  failed, 
but  more  than  failed,  but  affiant  further 
avers,  expects  to  be  able  to  prove  and 
show  on  the  trial  of  this  case,  that 
James  Littell,  the  plaintiff  above  named, 
is  not  the  owner  and  holder  for  value, 
and  before  the  maturity  of  the  note 
in  suit,  but  the  same  was  handed  over 
to  him  hy  John  Rowley,  the  payee,  for 
the  purpose  of  debarring  the  maker  and 
indorser  thereof  from  a  defense  to  the 
same." 

Compare  the  precedent  in  Hutchinson 
V.  Boggs,  28  Pa.  St.  295. 

1.  The  words  and  figures  enclosed  by 
[  ]  will  not  be  found  in  the  reported 
case,  but  have  been  added  to  render 
the  form  complete. 


119 


Volume  5. 


6095.  CONSIDERATION.  6096. 

e.  Want  of  Title  to  Part  of  Land  Purchased  by  Executory  Contract. 

Form  No.  6095. 

(Bullitt's  Civ.  Code  Ky.  (1895),  p.  636.) 

{^Title  of  court  and  cause  as  in  Form  No.  6091.') 

The  defendant  says  that,  on  the.  first  day  oi  November^  1 8^7,  in 
consideration  oi  Jive  hundred  dollars  which  he  then  paid  to  the  plain- 
tiff, and  of  the  note  in  the  petition  mentioned,  the  plaintiff  signed 
and  delivered  to  the  defendant  a  covenant,  of  the  date  aforesaid, 
which  is  filed  herewith,  marked  Exhibit  A,  and  by  which  he  cove- 
nanted to  convey  to  the  defendant  a  tract  of  land  situate  in  Zee 
county,  and  bounded  as  follows:  (Here  describe  the  land  by  abuttals  or 
by  metes  and  bounds)^  and  containing  two  hundred  and  fifty  acres;  and 
that,  as  the  defendant  has  since  discovered,  the  plaintiff  had  not  then, 
and  has  not  now,  any  title  to  one  hundred  and  fifty  azxes  of  said  land.^ 

Wherefore,  the  defendant  asks  for  a  credit  oi  four  hundred  and 
fifty  dollars  on  the  note  sued  on,  and  for  any  other  relief  he  may 
appear  entitled  to. 

Jeremiah  Mason,  Attorney. 

d.  Failure  to  Procure  Assignment  of  Lease  of  Property  Sold  to 

Defendant. 

Form  No.  6096. 
(Precedent  in  Mann  v.  Smyser,  76  111.  367.)* 

\(Title  of  court  and  cause  as  in  Form  No.  6090. y\^ 

And  for  a  further*  plea  in  this  behalf,  defendant  says  actio  non, 
because  he  says  that  the  plaintiffs  caused  and  procured  the  defendant 
to  enter  into  the  said  agreement,  and  to  promise  as  to  the  said  first 
count  of  said  declaration  alleged,  and  the  defendant  was  induced  to 
enter  into  and  make  the  said  agreement  and  promises  aforesaid 
through  and  by  means  of  fraud,  covin  and  misrepresentation  of  the 
plaintiffs  and  others  in  collusion  with  them,  in  this:  that  on  the  29th 
day  oi  July,  a.  d.  i87^,  plaintiffs  sold  to  defendant  their  warehouse, 
situated  on  the  side  of  the  /.  and  St.  L.  R.  R.  in  the  city  of  Paris^ 

1.  Bescinding   Contract.  —  If   the    de-  him    as    above    stated,    with    interest 

fendant  wishes  to  have  the  contract  re-  thereon  from  theyfrj/  day  of  November , 

scinded,    he   may  state   facts,    if   they  1897,  and  costs,  and  for  a  sale  of  that 

exist,  conducing  to  show  that  he  would  part  of  the  said  land  to  which    plaintiff 

not  have  purchased  the  land  if  he  had  has  title,  to  wit:  {Here  describe  the  lands 

known  that  the  plaintiff  had  no  title  to  by  abuttals  or  by  ntetes  and  bounds),  iovxh& 

the   one   hundred   and    fifty  acres,  and  satisfaction  of  said  jndgment,  and  for 

then  say:  "  and  the  defendant  says  that  any  other  relief  the  defendant  may  ap- 

he  is  ready  and  willing  to  surrender  pear  entitled  to. 

to  the  plaintiff  the  aforesaid  covenant,  feremiak  Mason,  Attorney." 

and  the  possession  of  said  land,  and  to  2.  This   was   held    by   the    supreme 

account  for  such  rents  and  profits  as  he  court  to  be  a  suflScient  plea  of  partial 

may  be  found  chargeable  with.  failure  of  consideration. 

Wherefore,  he  makes  this  answer  and  3.  The  words  and  figures  to  be  sup- 
counterclaim  against  the  plaintiff,  and  plied  within  [  ]  will  not  be  found  in  the 
asks  that  the  note  sued  on  may  be  can-  reported  case. 

celed,  and  for  a  judgment  against  the  4.  The  remaining  pleas  were  not  set 

plaintiff  ioT  five  Aundred dollars,  paid  to  out  in  the  reported  case. 

120  Volume  5. 


6097.  CONSIDERATION.  6098. 

Illinois,  for  the  sum  of  %1,500,  including  one  corn-sheller,  etc.;  that 
said  defendant  was  induced  to  and  did  enter  into  said  contract  by 
representations  of  said  plaintiffs  that  they,  could  and  would  pro- 
cure for  him  an  assignment  of  the  lease  from  said  railroad  company 
of  the  ground  upon  which  said  warehouse  and  appurtenances  were 
situated,  which  said  representations  plaintiffs  knew  to  be  false  and 
fraudulent  at  the  time  and  place  last  aforesaid. 

Defendant  further  avers,  that  plaintiffs  made  said  representations 
to  defendant  as  aforesaid,  knowing  them  to  be  false,  and  that  defend- 
ant, relying  upon  such  representations,  entered  into  said  contract, 
and  in  payment  thereof  executed  his  notes,  as  follows:  for  the  sum 
of  ^00  each,  payable  xn  four,  eight  and  twelve  months,  respectively, 
the  last  of  which  is  the  one  declared  on  in  said  declaration,  the  other 
two  having  been  fully  paid  and  discharged  by  said  defendant. 

And  the  defendant  says  plaintiffs  did  not  and  could  not,  by  the 
terms  of  their  lease  with  said  railroad  company,  procure  an  assign- 
ment of  the  grounds  on  which  the  said  warehouse  and  appurtenances 
were  situated,  but  that  the  said  railroad  company,  after  the  said  sale 
to  defendant,  before  they  would  assign  said  lease  of  plaintiffs  to 
defendant,  took  possession  of  a  portion  of  the  grounds  upon  which 
said  warehouse  and  appurtenances  were  situated,  and  compelled  the 
defendant  to  remove  a  portion  of  said  warehouse,  and  deprived  him 
of  a  portion  of  said  ground  to  his  great  damage,  to  wit:  the  sum  of 
$5^(?,  of  all  which  the  plaintiffs  then  and  there  had  notice  and  this 
he  is  ready  to  verify,  [(concluding  as  in  Form  No.  dOSOyY" 

2.  Total  Failure, 
a.  Defeasance. 
Form  No.  6097. 

(Bullitt's  Civ.  Code  Ky.  (1895),  p.  635., 

(Title  of  court  and  cause  as  in  Form  No.  6091.') 

The  defendant,  Richard  Roe,  says  that,  by  a  written  agreement 
executed  simultaneously  with  the  note  sued  on,  and  which  is  filed 
herewith,  the  plaintiff  agreed  that,  unless  he  should  deliver  a  certain 
jackass  therein  mentioned  to  the  defendant  within  ten  days  there- 
after, said  note  should  be  given  up  to  the  defendant;  and  that  said 
jackass  was  not  delivered  to  the  defendant  within  said  ten  days,  nor 
afterwards. 

Jeremiah  Mason,  Attorney. 

b.  Fraud  in  Selling  Horse  of  No  Value. 
Form  No.  6098. 

(Bullitt's  Civ.  Code  Ky.  (1895),  p.  635.)» 
(  Title  of  court  and  cause  as  in  Form  No.  6091. ) 
The  defendant,  Richard  Roe,  says  that  the  note  sued  on  was  given 

•V 

1.  The  words  and  figures  to  be  sup-  sideration  through  fraud  in  selling 
plied  within  [  ]  will  not  be  found  in  the  personal  property  to  the  defendant, 
reported  case.  and  an  offer  to  return  the  property,  in 

2.  See  another  plea  of  failure  of  con-  Bullitt's  Civ.  Code   Ky.  (1895),  p.  636. 

121  Volume  5. 


6099.  CONSIDERATION.  6100. 

in  consideration  of  a  horse  sold  by  the  plaintiff  to  the  defendant,  and 
which  the  plaintiff  falsely  and  fraudulently  represented  to  the  defend- 
ant as  being  sound,  though,  as  the  plaintiff  knew,  it  was  unsound  and 
had  a  disease  of  which  it  died,  and  which  made  it  of  no  value. 

Jeremiah  Mason,  Attorney. 
(  Verification  as  in  Form  No.  6091.) 

e.  Breach  of  Warranty  in  Sale  of  Chattel.' 

Form  No.  6099. 

{Commencing  as  in  Form  No.  6092,  and  continuing  down  to  *.) 

II.  That,  as  the  plaintiff  then  well  knew,  said  goods  were  purchased 
by  the  defendant  for  {tiaming  the  purpose  for  which  they  were  bought), 
and  the  plaintiff,  as  part  of  the  contract  of  sale  and  consideration 
of  said  note,  warranted  and  represented  that  said  goods  were  fit  and 
proper  and  suitable  for  such  purpose. 

III.  That,  as  the  plaintiff  well  knew,  the  defendant  accepted  and 
purchased  said  goods  for  {naming  the  purpose  for  which  they  were  bought), 
trusting  in  the  said  representations  and  warranty  of  the  plaintiff. 

IV.  That  the  said  goods  were  not  fit  or  proper  for  said  purpose, 
for  the  reason  that  {Here  state  wherein  the  goods  were  defective),  and 
have  always  been  and  are  altogether  useless  to  the  defendant. 

V.  That  as  soon  as  the  defendant  learned  the  character  of  said 
goods  he  notified  the  plaintiff  thereof  and  offered  to  return  them, 
which  he  is  still  ready  and  willing  to  do. 

Wherefore  {concluding  as  in  Form  No.  6092). 

d.  Failure  to  Make  Good  Title  to  Real  Estate.* 

Form  No.  6100. 
(Precedent  in  Hulshizer  v.  Lamoreux,  58  111.  73.)' 

1.  Precedent.  —  In  Beers  v.  Williams,  balance;  and  the  said  defendant  avers 

16  111.   69,   the  plea  was  held  to  be  a  that  said  boiler  and  fireplace   were  not 

good  plea  of  failure  of  consideration,  reasonably  fit  and  proper  for  the  place 

Omitting   formal   parts  it  was  as  fol-  they  were  intended  as  aforesaid,  but, 

lows:  on   the  contrary,  they   were  unfit  and 

"  And  the  said  defendant,  by  leave  improper  in  this,  that  they  were  un- 
of  the  court,  etc.,  comes  and  defends,  sound  and  defective;  in  consequence  of 
etc.,  and  to  the  first  count  of  the  said  which  unsoundness  and  defectiveness, 
declaration  says  rtf/it?  «<?«,  because  they  upon  full  and  proper  trial  thereof  by 
say,  that  the  consideration  for  which  said  defendant,  the  said  boiler  and 
the  said  note  sued  on  was  given  was  a  fireplace  exploded,  and  they  conse- 
boiler  and  fireplace  manufactured  by  quently  failed  to  answer  the  purpose 
the  said  plaintiff,  and  the  warranty  for  which  they  were  intended  and  war- 
that  the  said  boiler  and  fireplace  were  ranted  as  aforesaid;  wherefore,  he  says 
reasonably  fit  and  proper  for  the  pur-  that  the  consideration  of  said  note  has 
pose  they  were  intended,  and   for  no  wholly  failed." 

other  consideration.     And  the  defend-        2.  Precedents.  —  See   also    forms   of 

ant  avers  that  they  were  intended  for  affidavits    of    defense    in    Bronson    v. 

driving   the  machinery  of  a  grist  and  Silverman,    77    Pa.    St.  95;   Garrett   v. 

saw    mill    at    Virginia,     Cass    county,  Crosson,  32  Pa.  St.  374. 
Illinois,  for  which  boiler  and  fireplace,         8.  This   plea  was   held   to   set  up  a 

and  the  warranty  thereof,  the  defend-  good  defense,  since  no  right  of  action 

ant   paid   three   hundred  dollars   cash,  accrued  on  the  note  until  the  title  to 

and  executed  the  note  sued  on  for  the  the  land  was  conveyed. 

122  Volume  5. 


6100.  CONSIDER  A  TION.  6 1 00. 

[(7>'//?  of  court  and  cause  as  in  Form  No.  6090.  y^ 

And  for  a  further  ^  plea  in  this  behalf  to  the  said  declaration,  the 
defendant  says  actio  non,  because,  he  says,  the  only  cause  of  action 
sued  on  in  said  declaration  is  said  note  described  in  the  first  count 
thereof,  and  the  said  declaration  avers  that  the  sole  and  only  con 
sideration  for  said  note  was  the  following  described  real  estate,  sold 
by  William  Lamoreux,  deceased,  in  his  lifetime,  to  said  defendant, 
to  wit:  Lots  Nos.  5  and  6,  in  block  No.  6,  in  the  town  of  Mason 
City,  Illinois,  which  said  sale  of  lots  was  evidenced  by  a  certain 
bond  executed  by  the  said  William  Lamoreux,  deceased,  in  his  life- 
time in  substance,  as  follows:  That  is  to  say,  William  Lamoreux 
acknowledged  himself  to  be  held  and  firmly  bound  unto  the  said 
defendant  in  the  penal  sum  of  ^1,000,  to  be  paid  unto  the  said 
defendant,  his  heirs,  executors,  administrators  or  assigns,  to  whom 
payment  was  well  and  truly  to  be  made,  he  bound  himself,  heirs, 
executors  and  administrators,  and  every  one  of  them,  firmly  by 
these  presents,  sealed  with  the  seal  of  said  William  Lamoreux, 
deceased,  and  dated  November  28th,  iS67.  The  condition  written 
under  said  bond  was,  after  reciting  that  the  said  William  Lamoreux 
had  that  day  sold  to  said  defendant  the  said  lots  above  described, 
for  the  sum  of  %1,200,  of  which  said  sum  ^00  was  to  be  paid  down 
at  the  ensealing  and  delivering  of  said  bond,  and  the  balance,  %900^ 
on  the  1st  day  of  June,  1868,  with  ten  per  cent,  interest  from  date; 
that  upon  payment  of  said  sum  being  made  at  the  time  and  in  the 
manner  aforesaid,  the  said  William  Lamoreux,  for  himself,  his  heirs, 
executors  and  assigns,  covenanted  and  agreed  to  and  with  the  said 
defendant,  his  heirs,  executors,  administrators  and  assigns,  to 
execute  a  good  and  sufficient  deed  of  conveyance  in  fee  simple,  free 
from  all  incumbrances,  with  full  and  proper  covenants  of  warranty 
for  the  above  described  premises. 

Now  if  the  said  William  Lamoreux  shall  well  and  truly  keep, 
observe  and  perform  his  said  covenants  and  agreements  herein  con- 
tained, on  his  part,  then  the  above  obligation  to  be  void,  otherwise 
to  remain  in  full  force  and  virtue,  which  said  bond  was  duly  signed 
and  sealed  by  the  said  William  Lamoreux,  and  the  said  defendant 
avers  that  the  said  note  set  out  in  the  first  count  is  the  only  remain- 
ing note  or  amount  yet  unpaid  on  said  note  due  or  to  become  due, 
and  the  defendant  avers  that  the  said  William  Lamoreux,  deceased, 
in  his  lifetime,  nor  his  heirs,  executors,  administrators  or  assigns, 
since  his  decease,  at  any  time  before  the  commencement  of  this  said 
suit,  nor  at  any  time  since,  executed  or  offered  to  execute  or  tender 
to  the  said  defendant  upon  the  payment  of  the  balance  due  on  said 
note,  a  good  and  sufficient  deed  of  conveyance  in  fee  simple,  free 
from  all  incumbrances,  with  full  and  proper  covenants  of  warranty 
for  the  above  described  town  lots,  all  of  which  the  said  defendant  is 
ready  to  verify,  [(^concluding  as  in  Form  No.  6090).^ 

1.  The  words  and  figures  to  be  sup-        2.  A   plea   of   the    general    issue   is 
plied  within  [  ]  will  not  be  found  in  the     omitted  from  the  reported  case, 
reported  case. 

128  Volume  5. 


6101.  CONSIDERATION.  6102. 

e.  Nonperformance  of  Condition  upon  which  Subscription  for 
Stock  was  Made. 

Form  No.  6 1  o  i  .> 

State  of  Indiana, )  In  the  Johnson  Circuit  Court, 
Johnson  Connty.   \  October  Term,  i2>97, 
John  Fletcher  ) 

against        > 
David  Taylor.  ) 

The  above  named  defendant,  in  answer  to  the  plaintiff's  complaint 
herein,  alleges,  that  on  the  first  day  of  July.,  i897,  the  Evansville, 
Indianapolis  and  Cleveland  Straight-Line  Railroad  Company  proposed 
to  build  a  railroad  from  Evansville  in  this  state,  to  Indianapolis,  the 
capital  thereof,  and  to  run  the  line  thereof  on  the  east  side  of  White 
river,  in  Johnson  county,  by  doing  which  the  said  road  would  have 
run  near  the  lands  of  defendant,  and  materially  enhanced  the  value 
thereof;  that  in  consideration  of  the  premises,  the  defendant  sub- 
scribed to  the  construction  of  said  road  the  sum  of  one  hundred  dol- 
lars, to  be  paid  when  the  work  should  be  commenced  on  the  end  of 
the  road  south  from  Indianapolis;  that  on  the  first  day  of  September, 
1 897,  on  the  representation  of  said  railroad  company  by  its  agents 
that  the  work  had  been  commenced  on  said  road  on  its  northern  end 
and  immediately  south  of  Indianapolis,  the  defendant  executed  the 
note  sued  on  as  and  for  his  subscription  aforesaid,  and  because  of 
said  representations;  and  the  defendant  avers  the  fact  to  be  that  said 
company  never  did  commence  any  work  upon  the  northern  end  of 
said  road  and  immediately  south  of  Indianapolis,  or  elsewhere,  except 
on  the  southern  and  middle  portions  of  the  line.  And  so  the  defend- 
ant says,  that  the  note  was  obtained  from  him  by  the  fraud  and  false 
representations  of  the  payee  thereof,  and  is  without  consideration 
and  void. 

F.  M.  Finch,  Attorney  for  Defendant. 

(  Verification.  )2 

III.  ILLEGAL  CONSIDERATION.3 

1.  Note  Given  to  Compound  Offense. 

Form  No.  6102. 

(Conn.  Prac.  Act,  p.  211,  No.  387.) 

John  Doe     )      Superior  Court, 

vs.  >  New  Haven  County, 

Richard  Roe.  )  January  Texvix,  1S8O. 

1.  The  above  answer  contains  the  3.  How  Pleaded.  —  In  pleading  an  il- 
statement  of  facts  which  was  held  to  legal  consideration,  all  the  facts  which 
constitute  a  good  defense  in  Taylor  v.  constituted  the  consideration  and  which 
Fletcher,  15  Ind.  80.  rendered   it   illegal    must   be    pleaded. 

2.  Verification.  —  For  the  form  of  veri-  Fisher  v.  Fisher,  113  Ind.  474;  4  Encycl. 
fication  in  a  particular  jurisdiction  con-  of  PI.  and  Pr.  953;  i  Encycl.  of  PI.  and 
suit  the  title  Verifications.  Pr.  144. 

124  Volume  5. 


6103.  CONSIDERATION.  6104. 

Answer. 

1.  On  May  first,  iS79,  at  Hartford,  one  James  Roe,  the  son  of  the 
defendant,  had  feloniously  stolen  and  led  away  a  horse,  the  property 
of  the  plaintiff. 

2.  The  defendant,  in  order  to  compound  and  settle  said  felony, 
gave  the  note  mentioned  in  the  complaint,  upon  the  agreement  of 
the  plaintiff ^to  desist  from  giving  any  information  of  said  felony. 

Richard  Roe, 
By  Jeremiah  Mason,  his  Attorney. 

Form  No.  6103. 
(Bullitt's  Civ.  Code  Ky.  (1895),  p.  639.) 

(  Title  of  court  and  cause  as  in  Form  No.  6091. ) 

The  defendant,  Richard  Roe,  says  that  the  consideration  of  the 
note  sued  on  was  (or  was  to  the  extent  of  one  hundred  dollars)  the  plain- 
tiff's agreement  to  compound  a  felony  alleged  to  have  been  committed 
by  the  defendant  in  the  state  of  Kentucky. 

Jeremiah  Mason,  Attorney. 

(^Verification  as  in  Form  No.  6091.) 

Form  No.  6104. 

Supreme  Court,  Suffolk  County. 

John  Doe,  plaintiff,      ) 

against  >•  Answer. 

Richard  Roe,  defendant.  ) 

The  above  named  defendant  for  answer  to  the  plaintiff's  complaint 
herein  alleges:* 

I.  That  on  or  about  \.\ie  first  day  of  August,  iS97,  at  the  village  of 
Northport,  in  said  county  of  Suffolk,  Robert  Roe,  a  son  of  this  defend- 
ant, feloniously  took,  stole  and  carried  away  from  the  store  of  said 
John  Doe,  in  said  village  of  Northport,  two  gold  watches,  of  the  value 
oi  fifty  dollars  each.^ 

II.  That  the  said  promissory  note  for  one  hundred  dollars,  upon 
which  this  action  was  brought,  was  made  and  delivered  by  this 
defendant  to  the  saidy<?//«  Doe  on  the  fifth  day  of  September,  i897, 
in  consideration  that  he,  the  said  John  Doe,  would  not  institute  any 
criminal  prosecution  against  said  Robert  Roe  for  said  offense,  and 
would  furnish  no  evidence  tending  to  prove  the  same  against  him,^ 

1.  In  a  plea  that  the  consideration  it  is  necessary  to  show  that  there  was 
for  a  note  was  the  compounding  of  an  some  agreement  or  promise  on  the  part 
offense,  it  is  not  necessary  to  allege  of  the  obligee  to  forbear  prosecution 
that  an  offense  has  been  committed,  if  for  the  crime,  or  to  suppress  evidence 
a  prosecution  has  been  commenced,  that  would  tend  to  prove  it.  Barrett  z/. 
but  it  is  otherwise  if  no  prosecution  Weber,  125  N.  Y.  18.  But  it  is  not 
has  been  instituted.  Cheltenham  Fire-  necessary  to  allege  in  express  terms 
Brick  Co.  v.  Cook,  44  Mo.  29;  McCoy  that  the  maker  of  a  note  agreed  to  com- 
V.  Green,  83  Mo.  631;  Steuben  Bank  z/.  pound  a  crime.  It  is  sufficient  if  such 
Mathewson,  5  Hill  (N.  Y.)  249;  Portner  was  the  intention  of  the  parties  and  the 
V.  Kirschner,  169  Pa.  St.  472.  agreement  was  such   as  to  carry   out 

2.  To  avoid  a  contract  on  the  ground  that  intent.  Conderman  v.  Trenchard, 
that  it  was  made  to  compound  a  felony  58  Barb.  (N.  Y.)  165. 

126  Volume  5. 


6105. 


CON  SID  ERA  TION. 


6105. 


and  for  no  other  consideration  whatever.     That  said  note  is  there- 
fore without  consideration,  and  is  illegal  and  void. 

Benjamin  F.  Butler^  Attorney  for  Defendant. 
{Verification.y- 

2.  Note  Given  for  Money  Used  or  Lost  in  Gaming.^ 

Form  No.  6105. 

(Conn.  Prac.  Act,  p.  211,  No.  386.) 

(  Title  of  court  and  cause  as  in  Form  No.  6102.') 

1.  Or^  May  1st,  iS79,  the  defendant  and  the  plaintiff  played  together 
at  a  game  of  chance,  called  euchre.,  for  stakes,  and,  at  said  gaming,  the 
plaintiff  won  %250  of  the  defendant. 

2.  The  defendant  gave  the  plaintiff  the  note  mentioned  in  the  com- 
plaint for  said  money  so  staked  and  lost. 

Richard  Roe., 
By  Jeremiah  Mason.,  his  Attorney. 


1.  For  the  form  of  verification  in  a 
particular  jurisdiction  consult  the  title 
Verifications. 

2.  Koney  Used  in  Speculating  in 
Futures.  —  In  Benson  i/.  Dublin  Ware- 
house Co.,  99  Ga.  304,  it  was  held  that 
a  promissory  note  given  for  money 
advanced  by  the  payee  to  the  maker  to 
be  used  "as  margins  in  speculating  in 
cotton  futures,"  and  which  the  lender 
had,  in  the  maker's  behalf,  in  fact 
"  placed  "  for  this  purpose,  is  void,  and 
that  the  court  erred  in  striking  out  the 
defendant's  plea  setting  up  this  defense. 
The  plea  in  question,  omitting  the 
formal  parts,  was  as  follows: 

"  For  further  plea  defendant  says 
that  the  consideration  of  said  notes  was 
in  whole  or  in  part  money  advanced  by 
said  Dublin  Warehouse  Company,  to  be 
used  as  margins  in  speculating  in  cot- 
ton futures,  or  options  and  loans  on 
same;  that  said  company  made  such 
advances  with  full  knowledge  that  the 
money  was  to  be  used  by  Fortson  &> 
Co.,  as  margins  in  speculating  in  cot- 
ton futures;  and  in  fact  said  company 
placed  the  margins  for  Fortson  &•  Co. 
Said  transaction  was  a  gaming  con- 
tract, and  the  promise  founded  thereon 
is  founded  on  an  illegal  consideration, 
and  is  not  binding  on  defendant.  For 
further  plea  defendant  says,  without 
admitting  that  any  partnership  existed 
between  defendant  and  Thomas  E.  Fort- 
son in  the  transactions  out  of  which  the 
debt  sued  on  arose,  if  it  should  be  held 
that  they  were  partners,  this  defend- 
ant says  that  speculating  in  cotton  fu- 
tures was  entirely  outside  the  scope  of 


the  partnership  business,  and  this 
was  well  known  to  plaintitf.  The  ad- 
vances for  speculative  purposes  were 
made  to  Thomas  E.  Fortson,  and  this 
defendant,  when  he  signed  the  notes 
sued  on,  had  no  notice  or  knowledge 
of  the  fact  that  any  portion  of  the  debt 
for  which  said  notes  were  given  was 
for  such  advances.  For  further  plea 
defendant  says,  all  transactions  be- 
tween Fortson  dr"  Co.  and  plaintiff  out 
of  which  the  debt  sued  on  arose  were 
carried  on  by  said  company  with 
Thomas  E.  Fortson,  this  defendant  hav- 
ing no  personal  connection  with  or 
knowledge  of  them.  All  advances 
made  by  said  company  to  Thomas  E. 
Fortson  in  his  dealings  with  it  were 
charged  on  the  books  of  said  company 
Xo  Fortson  ^  Co .,  d^nA  when  defendant 
signed  said  notes  he  did  so  relying  upon 
the  correctness  of  said  books  and  believ- 
ing that  they  were  proper  charges 
against  Fortson  6^  Co.  Since  signing 
said  notes  he  has  ascertained,  and  now 
charges,  that  a  considerable  portion  of 
said  debt,  to  wit,  one  thousand  dollars 
or  other  large  sum,  was  for  advances 
made  Thomas  E.  Fortson  individually 
as  margins  in  buying  and  selling  cot- 
ton futures,  and  defendant,  when  he 
signed  the  notes, was  entirely  mistaken 
as  to  the  fact,  and  the  mistake  was 
brought  about  by  plaintiff's  conduct  in 
improperly  charging  to  Fortson  6^  Co., 
on  its  books,  money  advanced  to 
Thomas  E.  Fortson  individually. 

And  now  comes yaw^j^.  Benson  and 
says  that  the  notes  sued  on  were  given 
to   close   up    an    account    claimed    by 


126 


Volume  5, 


6106  CON  SID  ERA  TION.  6107. 

Form  No.  6106. 
(Bullitt's  Civ.  Code  Ky.  (1895),  p.  639.) 

(  Title  of  court  and  cause  as  in  Form  No.  6091. ) 

The  defendant,  Richard  Hoe,  says  that  the  consideration  of  the  note 
sued  on  was  (or  was  to  the  extent  of  one  hundred  dollars')  money  lent  by 
the  plaintiff  to  the  defendant  for  the  purpose  of  gaming,  and  that 
said  note  was  executed  in  the  state  of  Kentucky. 

Jeremiah  Mason.,  Attorney. 

(  Verification  as  in  Form  No.  6091. ) 

Form  No.  6107.' 

State  of  Minnesota,  )  District  Court, 

County  oi  Ramsey.    )  Second ]\\6.\c\a.\  District. 

John  Doe,  plaintiff,       ^ 

against  >•  Answer, 

Richard  Roe,  defendant.  ) 

The  above  named  defendant,  for  answer  to  the  plaintiff's  com- 
plaint herein,  alleges: 

I.  That  on  they^rj/ day  oi  September,  iS97,  in  the  city  of  St.  Raul, 
in  said  county  of  Ramsey,  the  plaintiff  and  defendant  gambled  and 
played  together  with  cards  at  a  certain  game  known  2l%  draw-poker, 
for  divers  sums,  on  credit,  and  not  for  ready  money,  and  that  the 
plaintiff  won  from  the  defendant  and  defendant  lost  to  plaintiff  at 
said  game  the  ^\xvs\  oi  one  hundred  and  twenty-five  dollars,  no  part  of 
which  was  paid  in  money. 

II.  That  the  promissory  note  for  the  sum  oi  one  hundred  and  twenty- 
five  dollars,  upon  which  this  action  was  brought,  was  on  said  day 
made  and  delivered  by  the  defendant  to  said  plaintiff  in  payment  of 
said  sum  of  one  hundred  and  twenty-five  dollars,  so  lost  by  gambling  as 
aforesaid,  and  for  no  other  consideration  whatever. 

plaintiff  to  be  due  it  by  Fortson  6r*  Co.,  under  the  purchase,  no  skill  or  labor  or 
a  firm  of  which  it  was  claimed  and  expense  entered  into  the  consideration, 
alleged  he  was  a  partner.  He  says  the  but  the  same  was  a  pure  specula- 
account  represented  by  these  notes  was  tion  upon  chances,  when  it  is  a  con- 
the  balance  of  account  claimed  by  tract  for  a  sale  of  goods  to  be  delivered 
plaintiff  2t.gz\n%\.  Fortson  Ss'  Co.,  a  firm  a  future  day,  and  where  both  parties 
composed  of  T.  E.  Fortson  and  /.  A.  are  aware  that  the  seller  expected  to 
Benson,  and  was  given  to  close  up  said  purchase  himself  to  fulfill  his  contract, 
account.  He  further  says  the  said  Defendant  further  says,  that  had  he 
balance  of  account  was  the  sole  and  known  at  the  time  of  indorsing  said 
only  consideration  of  said  notes.  He  notes  that  the  consideration,  in  whole 
further  says,  that  under  the  allegations  or  in  part,  was  for  gambling  in  future 
in  his  original  plea  and  this  amend-  operations  of  cotton,  as  alleged,  he 
ment,  the  taking  of  these  notes  as  would  never  have  indorsed  the  same, 
above  set  forth  was  a  fraud  upon  him.  and  that  he  signed  or  indorsed  the 
He  further  says  that  the  whole  of  said  same  believing  it  represented  a  legiti- 
notes  was  for  money  advanced  to  Fort-  mate  debt  due  by  Fortson  ^  Co.  to 
son  iSr"  Co.,  for  margins  and  losses  put  up  plaintiff." 

in  cotton  speculations  or  futures,  as  set  For  a  plea   in  an  action  on  an    in- 

forth  in  the  original  plea.    These  specu-  dorsed  note  under  the  statute  9  Ann.  c. 

lations  and  dealings  in   futures  being  14,  against  gaming,  see  3  Went.  PI.  103. 

gambling  operations  when  cotton    was  1.  Minnesota.  —  Stat.  (1894),  §  6594. 

ostensibly  bought  where  there  was  no  New  York.  —  Birds.  Rev.  Stat.  (1896), 

expectation     of   delivery     of   property  p.  270,  §  4. 

127  Volume  5. 


6108.  CONSIDERATION.  6109. 

Wherefore  the  defendant  demands  judgment  that  said  complaint  be 
dismissed,  that  said  promissory  note  be  delivered  up  and  canceled, 
and  for  his  costs  and  disbursements  herein,  and  for  such  other  and 
further  relief  as  to  the  court  may  seem  just. 

Gordon  E.  Cole, 

Attorney  for  Defendant. 
{Verification.y- 

3.  Note  Given  for  Liquors  Sold  Without  License. 

Form  No.  6  i  o  8 . 

(Conn.  Prac.  Act,  p.  2ii,  No.  388.) 

(JTitle  of  court  and  cause  as  in  Form  No.  6102.') 

1.  The  only  consideration  for  the  note,  mentioned  in  the  com- 
plaint, was  the  illegal  sale  of  intoxicating  liquors,  sold  by  the 
(payee)  to  said  defendant  in  New  Haven. 

2.  Said  (seller),  at  the  time  of  such  sale,  had  no  license  for  the 
sale  thereof,  as  required  by  law. 

Richard  Roe, 
By  Jeremiah  Mason,  his  Attorney. 

4.  Contract  Against  Public  Policy. 

Form  No.  6109. 

(Precedent  in  Board  of  Education  v.  Thompson,  33  Ohio  St.  322.)' 

[  The  Board  of  Education  of  Hartford'^ 
Township,  plaintiff, 

against  \  Trumbull  County. 

H.  B.  Thompson,  A.  O.  Woodford  and    Answer. 
Asa  Newman,  defendants.  J 

The  defendants  above  named,  answering  the  plaintiff's  petition 
herein,  allege:]^ 

1.  That  they  are  sureties  merely  of  Thompson,  for  his  accommo- 
dation, without  their  understanding  what  was  the  consideration, 
supposing  it  was  for  a  lawful  purpose;  but  they  have  since  learned, 
and  so  aver  the  fact  to  be,  that  there  was  no  legal  or  valid  con- 
sideration therefor. 

2.  The  said  defendants  say  for  a  second  defense  that  they  signed 
said  paper  writing  as  sureties  merely  of  said  Thompson,  and  without 
any  consideration,  under  the  circumstances  and  suppositions  herein- 
before stated,  and  not  otherwise;    and  that  they   have   now  learned 

1.  For  the  form  of  verification  in  a  legally  taken  from  the  treasury,  yet 
particular  jurisdiction  consult  the  title  they  could  not,  in  the  absence  of  statu- 
Vf.rifications.  tory  authority,  adopt  a  contract  made  in 

2.  In  this  case  it  was  held  that  the  violation  of  law. 

sureties  were  not  estopped  to  set  up  the        3.  The    words    enclosed    by   [  ]  will 
illegality  of  the  transaction;  and  that     not   be    found    in    the    reported    case, 
although  the  plaintiflfs  might  do  any     but  have  been  added  to  render  the  form 
act  in  disaffirmance  of  such  illegal  con-     complete, 
tract  and  recover  back  the  money  il- 

128  Volume  5. 


Court    of    Common    Pleas  — 


6110.  CONSIDER  A  TION.  6110. 

and  here  aver  the  facts  and  circumstances  of  the  making  of  said 
paper  to  have  been  as  follows,  and  not  otherwise:  That  on  the  first 
Monday  oi  April,  i871,  the  said  Thompson  was  duly  elected  treasurer 
of  said  township  of  Hartford,  and  was  then  duly  qualified  and  entered 
upon  the  duties  of  his  said  office,  and  continued  to  be  and  was  the 
treasurer  of  said  township  until  \\i^  first  Monday  oi  April,  i872,  when 
one  Elwin  Bennett  was  duly  elected  and  qualified  treasurer  of  said 
Hartford  township,  as  his  successor,  and  entered  upon  the  duties  of 
his  office,  and  was  and  continued  to  be  the  treasurer  of  said  Hartford 
township  until  the  first  Monday  in  April,  i873,  and  at  the  expiration 
of  his  said  office  the  said  Thompson  had  in  his  hands  about  eight 
hundred  dollars  of  school  funds  for  school  purposes,  which,  accord- 
ing to  the  statutes  in  such  case  made  and  provided,  it  was  the  duty 
of  said  Thompson  to  have  then,  at  the  expiration  of  his  term  of  service 
as  such  treasurer,  to  have  delivered  over  to  his  successor  in  office, 
the  said  Bennett,  as  plaintiffs  well  knew,  yet  the  plaintiffs,  in  contra- 
vention of  the  requirements  and  provisions  of  the  statutes  in  such 
case  made  and  provided,  in  utter  disregard  of  their  own  duties,  and 
thereby  enticing  and  persuading  and  aiding  and  inducing  the  said 
Thompson  to  disregard  his  duty,  and  contemptuously  disobey  said 
statutes,  made  and  induced  him,  the  said  Thompson,  to  withhold  the 
delivery  of  said  moneys,  so  then  in  his  hands  as  treasurer,  to  his 
successor  in  office,  by  making  and  delivering  to  them,  the  plaintiffs, 
said  writing  set  forth  in  said  petition,  all  which  was  done  by  the 
plaintiffs  as  well  as  said  Thompson  in  their  own  wrong,  in  contra- 
vention of  the  statutes,  against  public  policy  and  good  morals,  and 
without  any  authority;  whereupon  these  defendants  submit  that  said 
writing  is  utterly  void,  and  no  just  right  of  action  hath  accrued 
thereon  and  thereby  to  said  plaintiffs. 

{^Joseph  Story,  Defendants'  Attorney.]^ 

IV.  Consideration  tainted  with  usury. 

Form  No.  6  1 1 o. 

{^Commencing  as  in  Form  No.  SlOJf.,  and  continuing  do7vn  to  *.) 
I.  That  the  promissory  note  mentioned  in  plaintiff's  complaint  was 
made  and  delivered  to  plaintiff  upon  the  usurious  agreement  between 
defendant  and  plaintiff,  that  defendant  should  pay  plaintiff,  and  that 
plaintiff  should  reserve  and  secure  to  himself  for  the  loan  of  money, 
a  greater  sum  than  at  the  rate  of  six  per  cent,  per  annum,^  to  wit,  at 
the  rate  of  twelve  ^  per  cent,  per  annum. 

1.  The  words  enclosed  by  [  ]  will  sets  up  that  the  contract  sued  on  is 
not  be  found  in  the  reported  case,  usurious  according  to  the  laws  of  a 
but  have  been  added  to  render  the  form  foreign  state,  the  answer  should  first 
complete.  state  what  those  laws  were^t  the  time 

2.  The  answer  should  state  what  the  of  the  transaction  and  then  set  out 
usurious  agreement  was,  between  facts  showing  that  the  contract  was 
whom'  made,  and  the  amount  of  the  void  according  to  those  laws.  Mayer 
usury;  and  a  general  allegation  of  usury  v.  Louis,  12  Abb.  Pr.  N.  S.  (N.  Y.  Su- 
is  not  sufficient.  Griggs  v.  Howe,  31  preme  Ct.)  5;  Curtis  v.  Masten,  il 
Barb.   (N.  Y.)  100;  Manning  t:  Tyler,  Paige  (N.  Y.)  15. 

21  N.  Y.  567.     And  where  the  answer        3.  Amount    of  ITsttry.  —  A  statement 
5  E.  of  F.  P.— 9.  129  '  Volume  5. 


6110.  CON  SID  ERA  TION.  6110. 

II.  That  said  sum  was  deducted  and  reserved  from  the  amount  of 
said  note  by  plaintiff,  and  the  balance  only  paid  to  this  defendant; 
that  is  to  say,  that  this  defendant  agreed  to  pay,  and  the  plaintiff 
agreed  to  receive,  one  hundred  and  twenty  dollars  for  said  loan,  the  plain- 
tiff reserving  and  securing  to  himself  for  the  loan  of  money  on  said  note, 
until  the  maturity  thereof,  one  hundred  and  twenty  dollars. 

(^Signature  and  verification  as  in  Form  No.  610Jf.^ 

that  the  amount  of  usury  exacted  was  ant  believes  was  about  seven  or  eight 
"about  enough,  as  he  said,  to  get  him  dollars,"  was  held  sufficient.  Dagal  v. 
a  barrel  of  flour,  which  amount  defend-     Simmons,  23  N.  Y.  491. 

130  Volume  5. 


CONSOLIDATION   OF  ACTIONS.^ 


I.  By  plaintiff,  132. 

II.  BY  MOTION  AND  ORDER,  132. 
1.    The  Application^  132. 

a.  Notice  of  Motion,  132. 

b.  Affidavit  in  Support  of  Motion^  133. 

c.  Motion,  134.  - 
8.    The  Order,  134. 

a.  Consolidating  Actions,  134. 

(i)  Generally,  134. 

(2)  And  Removing  Cause  from  Another  Court,  135. 

(3)  And  Enjoining  Further  Proceedings  at  Law,  135. 

b.  Directing  One  Action  to  Abide  the  Event  of  Another^  136. 

III.  BY  CONSENT  OF  PARTIES,  136. 
1.    The  Stipulation,  136. 
8.    The  Order,  137. 


1.  For  statutes  relating  to  the  subject  Minnesota.  —  Stat.    (1894),    §§    5271, 

of  consolidation  of  actions  see  as  fol-  6238. 

lows:  Missouri.  —  Rev.  Stat.  (1889),  §§  2189, 

Alabama.  —  Code   Civ.    Proc.    (1886),  2190,6221-6224. 

§2742.  Montana.  —  Code   Civ.    Proc.    (1895), 

Arizona.  —  Rev.  Stat.  (18S7),  §  918.  §  1894. 

Arkansas.  — Sand.  &  H.  Dig.  (1894),  Nebraska.  —  Comp.    Stat.    (1S97),    §§ 

^§  5707,  5708.  5741,  5742. 

California.  — Code  Civ.  Proc.  (1897),  Nevada.  —  Gen.  Slat.  (1885),  §  3524. 

§§1048,1195.  New  fersey.  —  Gen.    Stat.    (1895),    p. 

Colorado.  —  Mills'  Anno.  Stat.  (1891),  2554,  §  121;  p.  25S1,  §  289. 


§§  2888,  2890. 

Florida.  —  Rev.  Stat.  (1892),  S  1003. 
Georgia.  —  2    Code    (1895),    §§   4846, 

4943. 

/</rt/4£7.  —  Rev.  Stat.  (1887),  §4926. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  2423,  par.  53. 

Indiana.  —  Burns'  Anno.  Stat.  (1894), 
§§  7251,  7260. 

Iowa.  — Anno.  Code  (1897),  §  3644. 

Kansas.  — G&n.  Stat.  (1889),  g§  4228, 
4229. 

Louisiana.  —  Garland's  Rev.  Code 
(1894),  §§  442,  443. 

Maryland.  — "Pvih.  Gen.  Laws  (1888), 
art.  50,  §§  7,  8. 


New  Mexico.  —  Laws  (1897),  p.  73,  § 
117. 

New  York.  —  Code  Civ.  Proc,  §§ 
817-810,  1989  (Birds.  Rev.  Stat.  (1896), 
p.  19,  IS  34-36;  p.  27,  §  77). 

North  Dakota.  —  Rev.  Codes  (1895), 
§  5738. 

C/n'tf.  —  Bates'  Anno.  Stat.  (1897),  § 
5120. 

Oklahoma. — Stat.  (1893),  §§  4023,  4024. 

Oregon.  —  Hill's  Anno.  Laws   (1892), 

§  514." 

Rhode  Island. — Gen.  Laws  (1896),  c. 
233,  §  21. 

Utah.  —  Yi^v.  Stat.  (1898),  g  34S9. 
Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
Michigan.  —  How.  Anno.  Stat.  (1882),     (1889),  §  2792. 
§§  7375.  7376.  Wyoming.  —  Rev.  Stat.  (1887),  §  2507. 

131  Volume  5. 


6111.  CON  SO  LI  DA  TION  OF  ACTIONS.  6112. 

I.  BY  PLAINTIFF. 

Form  No.  6  1 1 1 .' 

Supreme  Court,  Suffolk  County. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

Supreme  Court,  Suffolk  County. 
John  Doe,  plaintiff, 
against 
Samuel  Short,  defendant. 

You  will  please  take  notice  that  the  above  entitled  actions  have 
been  consolidated  into  one  action  by  the  plaintiff,  and  are  hereafter 
for  all  purposes  to  be  considered  as  one  action. 
May  10,  i897. 

Jeremiah  Mason,  Attorney  for  the  Plaintiff, 
Northport,  N.  Y. 
To  Joseph  Story,  Esq. , 

Defendant's  Attorney. 

II.  BY  MOTION  AND  ORDER. 

1.  The  Application, 
a.  Notice  of  Motion.* 

Form  No.  6 1 1 2  .^ 

Supreme  Court,  Suffolk  County. 

John  Doe,  plaintiff,      ) 

against  >■ 

Richard  Roe,  defendant.  ) 

County  Court,  Suffolk  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

You  will  please  take  notice  that  upon  the  annexed  affidavit  and  the 
pleadings  in  the  above  entitled  actions  the  undersigned  will  move 
the  court,  at  a  special  term  thereof,  to  be  held  at  the  county  court- 
house, in  the  town  of  Riverhead,^  on  the  tenth  day  of  May,  i897,  at 
ten  o'clock  in  the  forenoon  of  that  day,  or  as  soon  thereafter  ascoun- 

1.  7^670  York.  —  Code  Civ.  Proc,  §  at  one  time  and  against  the  same  de- 
819  (Birds.  Rev.  Stat.  (1896),  p.  19,  §  36).  fendants  brought  a  separate  action  in 

2.  For  forms  of  notices  of  motion,  each  of  the  counties  of  the  state  for  one 
generally,  consult  the  title  Motions.  and  the  same  libel,  it  was  held  that  the 

3.  N^ew  York,  —  Code  Civ.  Proc,  §  motion  to  consolidate  was  properly 
817  (Birds.  Rev.  Stat.  N.  Y.  (1896),  p.  made  in  the  county  in  which  all  the 
19.  §  34)-  parties   resided.     Percy   v.    Seward,   6 

4.  Where  Made.  — Where  the  plaintiff  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  326. 

132  Volume  5. 


6113.  CON  SO  LI  DA  TION  OF  A  CTIONS.  6113. 

sel  can  be  hearci,  that  these  two  actions  be  consolidated  into  one, 
[and  that  for  that  purpose  the  above  entitled  action  in  the  County 
Court  be  removed  into  the  Supreme  Court  and  so  there  consoli- 
dated.]! 

May  1,  1 857.  Joseph  Story,  Attorney  for  Defendant, 

Northport,  N,  Y. 
To  Jeremiah  Mason,  Esq., 

Attorney  for  Plaintiff. 

b.  Affidavit  in  Support  of  Motion.' 

Form  No.  6i  13.* 

(^Title  of  the  several  causes  as  in  Form  No.  6112.) 
State  of  New  York,  ) 
County  of  Suffolk.     \     ' 

Richard  Roe,  hemg  first  duly  sworn,  says  that  he  is  the  defendant 
in  all  the  above  entitled  actions,  which  are  pending  in  the  courts 
above  named,  and  in  all  of  which  the  parties,  plaintiffs  and  defend- 
ants, are  the  same;  that  each  of  said  actions  is  brought  upon  a 
promissory  note  alleged  to  have  been  made  by  defendant;*  that  the 
defense  in  all  these  actions  is  the  same,  to  wit,  payment,  as  appears 
from  copies  of  the  answers  hereto  annexed,  and  that  deponent  is 
advised  and  believes  that  the  questions  which  will  arise  and  are  to 
be  tried  are  substantially  the  same  in  all  of  said  actions  (or  that 
defendant  does  not  intend  to  interpose  any  defense  to  said  actions);^  that 
the  summons  and  complaint  in  said  actions  were  served  on  this 
defendant  respectively  on  the  fifteenth  and  seventeenth  days  of  March, 
iS97,  and  that  the  said  causes  are  at  issue  by  the  service  of  his 
answer  to  the  said  complaint  on  the^r^^  day  oi  April,  iS97;  that 
plaintiff  has  refused  to  consent  to  the  consolidation  of  said  actions, 
although  requested  by  this  deponent. 

Richard  Roe. 

Subscribed  and  sworn  to  before  me  this  ffteenth  day  of  April,  i897. 
Norton  Porter,  Notary  Public  Suffolk  County. 

1.  Semoval  of  Cause.  —  The  removal  5.  It  must  be  made  to  appear  that  the 
of  a  cause  pending  in  another  court  defense  to  all  the  notes  or  demands  is 
into  the  supreme  court  for  the  purpose  the  same,  or  that  there  is  no  defense, 
of  consolidation  is  authorized  by  N.  Y.  Gerding  v.  Anderson,  64  Ga.  304  ; 
Code  Civ.  Proc,  §  818  (Birds.  Rev.  Logan  z/.  Mechanics' Bank,  13  Ga.  201; 
Stat.  N.  Y.  (1896),  p.  19,  §  35).  Where  Worley  v.  Glentworth,  10  N.  J.  L. 
both  causes  are  pending  in  the  same  241;  Boyle  v.  Staten  Island,  etc..  Land 
court,  the  words  enclosed  by  []  should  Co..  87  Hun  (N.  Y.),  233;  Campbell 
be  omitted.  Printing  Press,   etc.,  Co.   v.  Lyddy,   i 

2.  For  forms  of  affidavits,  generally.  Civ.  Proc.  Rep.  (N.  Y.  Marine  Ct.)364; 
consult  the  title  Affidavits,  vol.  i,  p.  Wilkinson  v.  Johnson,  4  Hill  (N.  Y.) 
548.  46;     Dunning    v.    Auburn     Bank,    19 

3.  New  York.  —  Code  Civ.  Proc,  §  Wend.  (N.  Y.)  23.  And  where  there  is 
817  (Birds.  Rev.  Stat.  (1896),  p.  19,  §  34).  a  defense  the  nature  thereof  must  be 

4.  It  must  appear  that  the  causes  of  stated.  Dunn  v.  Mason,  7  Hill  (N.  Y.) 
action  are  such  as  may  be  joined  in  the  154;  Crane  v.  Koehler  (N.  Y.  Com.  PI. 
same  declaration.  Dunning  v.  Auburn  1858),  cited  in  Percy  v.  Seward,  6  Abb. 
Bank,  19  Wend.  (N.  Y.)  23.  Pr.  (N.  Y.  Supreme  Ct.)  326. 

183  Volume  5. 


6114.  CON  SO  LI  DA  TION  OF  A  CTIONS.  6115. 

e.  Motion.' 

Form  No.  6114.^ 

r  /^       ^ '         S-  Court  of  Common  Pleas. 

Lucas  County,  ss.  j  -^  . 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

And  now  comes  the  above  named  defendant,  by  Joseph  Story,  his 
attorney,  and  moves  the  court  here  (Or  and  tnoves  the  Honorable  John 
Marshall,  one  of  the  judges  of  said  courf)  to  consolidate  into  one  action 
the  three  several  actions  now  pending  in  said  court,  in  each  of  which 
said  actions  the  above  named  John  Doe  is  plaintiff  and  the  above 
named  Richard  Roe  is  defendant,  and  which  said  actions  could  have 
been  joined  in  one  action. 

Dated  the  tenth  day  of  May,  i897. 

Joseph  Story,  Defendant's  Attorney. 

2.  The  Opder.3 

a.  Consolidating  Actions. 
(1)  Generally.'* 

Form  No.  6115.^ 

At  a  Special  Term  of  the  Supreme  Court  held  in  and  for  the 
County  of  Suffolk,  at  the  County  Court-house  in  River  head,  in  said 
County,  on  the  tetith  day  of  May,  iS97. 

Present:     Hon.   Wihnot  M.  Smith,  Justice. 

{Title  of  the  several  causes  as  in  Forfn  No.  Q112^ 

On  reading  and  filing  the  defendant's  affidavits  in  these  actions 
{enumerating  all  the  motion  papers),  and  after  hearing  Joseph  Story, 
Esq.,  for  defendants,  and  Jeremiah  Mason,  Esq.,  for  plaintiff,* 

Ordered,  that  the  f  several  causes  above  entitled  be,  and  hereby 
are,  consolidated  into  one  action  in  this  court,  and  that  the  several 
statements  of  the  causes  of  action  in  the  respective  complaints  stand 
as  the  complaint  in  said  consolidated  action  (or  that  the  plaintiff  have 
leave  or  be  required  to  serve  an  amended  complaint  in  the  consolidated 
action  within  fifteen  days  from  the  service  of  this  order),  and  that  the 
plaintiff  pay  the  costs  of  the  first  action  up  to  the  date  of  this  order, 
and  ten  dollars  costs  of  this  motion.^ 

Enter:  W.  M.  S,  J.  6".  C. 

1.  For  forms  of  motions,  generally,  wards,  77  Wis.  479;  The  Rio  Grande, 
consult  the  title  Motions.  19  Wall.  (U.  S.)  179. 

2.  0/iio.  —  Bates'  Anno.  Stat.  (1897),  5.  A^ew  York.  —  Code  Civ.  Proc,  § 
§  5120.  817  (Birds.  Rev.  Stat.  (1896),  p.  19,  §  34). 

3.  For  forms  of  orders,  generally,  6.  Costs.  —  Where  the  court  directs  a 
consult  the  title  Orders.  consolidation    of    suits,    it     can     only 

4.  Precedents.  —  See  also  orders  in  direct  the  costs  of  the  rule  to  be  paid 
Dupignac  v.  Dupignac,  12  Civ.  Proc.  by  plaintiff  and  should  leave  the  gen- 
Rep.  (N.  Y.  Supreme  Ct.)  351;  Den  v.  eral  costs  to  abide  the  result.  Buie  v. 
Kimble,  9  N.  J.  L.  338;  Biron  v.  Ed-  Kelly,  7  Jones  L.  (52  N.  Car.)  266. 

134  Volume  5. 


6116.  CON  SO  LI  DA  TION  OF  A  CTIONS.  6117. 

(2)  ANt)  Removing  Cause  from  Another  Court.^ 

Form  No.  6  1 1  6 .« 

{Comineming  as  in  Form  No.  6115,  and  continuing  down  to  f)  above 
entitled  action  pending  in  the  County  Court  be  and  hereby  is 
removed  to  the  Supreme  Court,  and  that  the  several  causes  of  action 
above  entitled  be  and  hereby  are  consolidated  {conducing  as  in  Form 
No.  6115). 

(3)  And  Enjoining  Further  Proceedings  at  Law. 

Form  No.  6  1 1  7 . 

(Precedent  in  Furman  v.  Greenville,  etc.,  R.  Co.,  3  S.  Car.  432.) 

Isaac  IV.  Hayne,  Atfy  Gen  I  South  Carolina, 

vs. 

The  Greenville  e^  Columbia  Railroad  Company. 

Upon  hearing  the  information  filed  by  Isaac  W.  Hayne,  Attorney 
General,  on  behalf  of  the  State  in  the  above  case,  on  motion  of  said 
Attorney  General,  It  is  ordered,  that  Thomas  C.  Perrin,  of  Abbroille 
District,  the  Executor  of  James  M.  Perrin,  Jolm  B.  Earle,  of  Green- 
ville District,  and  George  Sims,  of  Richland  District,  parties  who  are 
represented  as  having  commenced  suit  at  law  in  the  Court  of  Common 
Pleas,  sitting  for  their  districts  respectively,  against  the  Greemnlle 
df  Columbia  Railroad  Company,  be  and  they  are  hereby  enjoined  and 
restrained  from  the  further  prosecution  of  said  suits  at  law,  without 
leave  had  and  obtained  from  this  court;  and  writs  of  injunction  are 
hereby  ordered  to  issue  from  the  Register  of  this  court,  against  the 
said  Thomas  C.  Perrin,  John  B.  Earle  and  George  Sims,  requiring  their 
observance  of  the  above  order. 

It  is  further  ordered,  that  all  separate  proceedings  in  the  cases  in 
equity  of  Charles  M.  Furman,  Trustee,  against  the  Greemnlle  and 
Columbia  Railroad  Company,  instituted  in  the  District  of  Richland,  and 
of  Benjamin  F.  Hugcr  and  John  E.  Phillips,  Trustee,  against  the 
Greemnlle  and  Columbia  Railroad  Company,  instituted  in  the  District 
of  Charleston,  be  stayed;  that  the  said  cases  from  the  date  of  this 
order  be  considered  as  consolidated  with  the  above  case,  and  that  all 
future  orders  and  proceedings  in  any  of  these  cases  be  taken  as  in 
the  case  of  The  Attorney  General  against  The  Greemnlle  and  Columbia 
Railroad  Company,  C.  M.  Furman,  Trustee,  et  al.,  and  that  parties  to 
to  the  two  first  named  cases  be  notified  of  this  order. 

It  is  further  ordered,  that  all  persons  whatever,  having  claims 
against  the  Greenville  and  Columbia  Railroad  Company,  be  and  they  are 
hereby  stayed,  restrained  and  enjoined  from  instituting  and  carrying 
on  any  suit  or  suits,  or  proceeding  or  proceedings,  in  any  court  in 
this  State,  against  the  Greenville  and  Columbia  Railroad  Company,  ex- 
cept by  proceedings  in  this  case,  or  by  leave  of  this  court  first  obtained, 
and   that  this  order  be  published  by  James  Tupper,  Esquire,  one  of 

1.  Precedent.  —  See  Solomon  v.  Bel-  2.  New  York. — Code  Civ.  Proc,  § 
den.  12  Abb.  N.  Cas.  (N.  Y.  Supreme  818  (Birds.  Rev.  Stat.  (1896),  p.  19,  §35)- 
Ct.)  63. 

135  Volume  5. 


6118.  CON  SO  LI  DA  TION  OF  A  CTIONS.  6119. 

the  Masters  of  this  court,  in  at  least  one  paper  each  in  Charlestom 
Columbia  and  Greenville. 

It  is  further  ordered,  that  the  above  orders  are  without  prejudice 
to  the  equities  of  the  parties  concerned,  and  that  upon  the  coming  in 
of  the  answers,  and  due  notice  given,  application  may  be  made  to 
annul  or  modify  the  same. 

April  i,  \Z68.  Henry  D.  Lesesne. 

b.  Directing  One  Action  to  Abide  the  Event  of  Another. 

Form  No.  6i  i8.> 

{Commencing  as  in  Form  No.  6115,  and  continuing  down  to  *.) 
Ordered,  that  all  the  causes  abide  the  event  and  final  determina- 
tion of  one  of  them,  which  the  plaintiff  may  select  and  notice  for 
trial,  and  that  proceedings  in  all  the  remaining  actions  be  stayed 
until  the  trial  of  such  selected  action,  and  that  whatever  judgment 
may  be  finally  rendered  in  the  cause  noticed  for  trial  shall  be  entered 
in  all  the  other  causes,^  unless  the  defendant  consent  that  such 
remaining  actions  abide  the  event  of  the  action  tried,  in  case  the 
defendant  should  appeal  from  any  judgment  recovered  against  him. 
Enter.  W.  M.  S.,  J.  S.  C. 

III.  BY  CONSENT  OF  PARTIES. 

1.  The  Stipulation.  3 

Form  No.  6  1 1 9 . 

(Precedent  in  Pons  v.  Hart,  5  Fla.  458.) 

William  Proctor  ) 

vs.  |-  Replevin  for  Slaves. 

Isaiah  D.  Hart.  ) 

It  is  agreed  between  the  counsel  in  this  cause  that  the  jury  now 
impaneled  in  the  case  of  Isaiah  D.  Hart  vs.  John  Pons,  be  also  sworn 
in  this  cause,  and  that  the  same  be  submitted  to  them,  and  that  the 
court  render  such  judgment  in  both  causes  as  may  seem  right  and 
proper  from  the  finding  of  the  jury. 

Sanderson  &r'  Call, 

For  Isaiah  D.  Hart. 
Philip  Fraser, 

For  Proctor  6^  Pons. 

1.  See,  as  authorizing  this  order  un-  like  liberty  to  the  plaintiff  to  apply  then 
der  2  N.  Y.  Rev.  Stat.  480,  §  38  (now     for  a  consolidation." 

Birds.  Rev.  Stat.  N.  Y.  (1896),  p.  19,  §  3.  That    One    Cause    Abide    Event   of 

34),    Clark  V.    Metropolitan    Bank,    5  Another.  —  In   Gillmore    v.   American 

Sandf.  (N.  Y.)  665.  Central  Ins.  Co.,  65  Cal.  64,  it  was  held 

2.  Liberty  to  Consolidate  after  Trial.  —  that  where  two  causes  alike  in  every 
If  liberty  to  the  defendant  to  move  for  material  respect,  and  having  the  samie 
a  consolidation  after  trial  is  reserved,  attorneys  on  both  sides,  are  pending 
the  following  words  should  be  here  in-  in  the  same  court,  astipulation  that  one 
serted:  "with  liberty  to  the  defendant  of  them  shall  abide  the  determination 
after  such  trial  to  move  for  a  consoli-  of  the  other,  and  that  final  judgment 
dation  of  the  remaining  suits,  and  with  may  be  entered  in  accordance  with  such 

136  Volume  5. 


6120.  CONSOLIDATION  OF  ACTIONS.  6120. 

2.  The  Qpdep.i 

Form  No.  6120. 
(Precedent  in  Morgan  County  v.  Thomas,  76  111.  136.) 

[State  of  Illinois,        )  In  the  Circuit  Court. 

County  of  Morgan.  \     '        To  the  Special  September  Term,  i875. 
William  Thomas  et  al.        ) 

against  >■  In  Chancery.]^ 

TAe  County  of  Morgan  et  al.  ) 

It  is  ordered,  by  consent,  that  the  case  of  William  Thomas  against 
the  County  of  Morgan  and  others,  be  tried  with  the  case  of  the  County 
of  Morgan  against  The  Peoria,  Pekin  and  Jacksonville  Railroad  Com- 
pany and  others,  as  one  suit. 

2d.  That  the  depositions  taken  in  the  case  of  the  County  of  Morgan 
against  the  Peoria,  Pekin  and  Jacksonville  Railroad  Company,  may  be 
read  on  the  trial  of  said  cases  as  so  tried. 

The  foregoing  stipulations  shall  in  no  respect  diminish  the  rights  of 
said  Thomas,  but  he  shall  have  and  may  exercise  all  the  rights  of 
which  he  would  be  possessed  if  his  case  were  tried  separately. 

The  foregoing  stipulations  shall  extend  to  the  cases  of  M.  H.  L. 
Schooley  against  Morgan  County  and  others,  zn^.  B.  S.  West  against  the 
same. 

The  foregoing  stipulations  shall  in  no  respect  diminish  the  rights 
of  the  Peoria,  Pekin  and  Jacksonville  Railroad  Company,  or  the  rights 
of  Isaac  L.  Morrison,  or  the  County  of  Morgan,  but  each  and  all  of  said 
parties  shall  have  and  may  exercise  all  the  rights  of  which  he  or  they 
would  be  possessed  if  the  cases  were  tried  separately. 

determination,  does  not  lose  its  effect  mination  of  such  appeal,  and  upon  such 

for  the  reason  that  a  judgment  rendered  final     determination,     judgment     and 

in    the   other  case   is  reversed   on  the  decision   in  said   action    wherein   said 

ground     of    error     in      overruling     a  7"//^  Zvr<7wt«f,  etc.,  is  defendant,  either 

demurrer  to  the  complaint,  the  plead-  party,   without  notice,  shall  and   may 

ings     in   that    case     being    thereupon  cause  to  be  entered  a  judgment  in  this 

amended    without    making   any    sub-  action   corresponding  to   and   like  the 

stantial  change  in  the  issues  and  final  said   final  judgment,  and  of  the  same 

judgment  obtained  on  the  merits.    The  date  in  said  other  action;  and  if  such 

stipulation  in  the  case,  omitting  formal  judgment  shall  be  for  the  plaintiff,  the 

parts,  was  as  follows:  amount  for  which   the  same  shall   be 

"This  cause  being  regularly  called  entered   shall  be  six  hutidred  and  fifty 

for  trial,  the  parties  appearing  by  their  dollars    and   costs;  and   if  for  the  de- 

respective  attorneys,  and   both  parties  fendant,  then  for  its  costs  allowed  by 

consenting  in  open  court  that  the  issues  law. 

in  this  cause  are  identical  with  those  of  An  order  pursuant  to  this  stipulation 
the  other  action  pending  in  this  court,  shall  be  entered  in  the  minutes  of  this 
No.  4,7gg,  entitled  Lucy  Gilmore  v.  The  court,  12th  May,  jS^q." 
Lycoming  Fire  Insurance  Company  of  Consolidation  of  Appeals.  —  For  form  of 
Muncy,  Pa.  stipulation  to  consolidate  appeals  con- 
It  is  stipulated  and  agreed  that  all  suit  the  title  Appeals,  vol.  i.  Form  No. 
proceedings  herein  shall  be  stayed  until  1931. 

final    judgment   and    decision   in   said  1.  For   forms   of    orders,   generally, 

action     wherein     the     Lycoming    Fire  consult  the  title  Orders. 

Insurance   Company  of  Muncy,   Pa.,    is  2.   The  words  and  figures  enclosed  by 

defendant,  and  in  case  of  an  appeal  in  [  ]  will  not  be   found   in  the  reported 

said  last  named  action,  then  said  pro-  case,   but  have  been  added  to  render 

ceedings  are  stayed  until  the  final  deter-  the  form  complete. 

137  Volume  5. 


CONSOLIDATION  OF  CORPORATIONS. 

See  the  title  CORPORA  TIONS. 


CONSPIRACY. 

By  Jos.  R.  Long. 

I.  Criminal  prosecution  for  conspiracy,  140. 

1.   Falsely  to  Charge  One  with  Criminal  Offense^  142, 

a.  Of  Adultery^  143. 

b.  Of  Attempt  at  Murder^  145. 

c.  Of  Being  the  Father  of  a  Bastard,  146. 

d.  Of  Larceny,  148. 

a.    To  Cheat  or  Defraud,  149. 

a.  A  Bank,  152. 

b.  A  County,  158. 

c.  An  Individual,  159. 

(i)   Generally,  159. 

(2)  By  Inducing    Surrender  of  Bond  on   Pretended 

Conveyance,  163. 

(3)  By  Making  One  Drunk  and  Playing  Falsely  at 

Cards,  164. 

d.  The  Public,  by  Uttering  False  Bank  Notes,  165. 

e.  The  State,  166. 

3,    To  Commit  Certain  Crimes,  167. 

a.  Abduction  of  Child,  167. 

b.  Abortion,  168. 

c.  Assault  and  Battery,  169. 

d.  Breaking  Jail,  170. 

(i)   To  Escape,  170. 

(2)   To  Injure  or  Kill  Prisoner,  171. 

e.  Burglary,  171. 

f.  Destroying  Property,  172. 

(i)  Dwelling-house,  172. 
(2)  Railroad  Tracks,  173. 

g.  Murder,  173. 

h.  Procuring  Defilement  of  Young  Female,  174. 
/.    Procuring  Elopement  of  a  Minor  Daughter,  \'](i. 
j.    Procuring  Marriage  Falsely  to  Appear  of  Record,  177. 
k.  Robbery,  179. 

/.    Seduction  by  Sham  Marriage,  181. 
m.   Soliciting  Bribes,  182. 

138  Volume  5. 


CONSPIRACY. 

4.    To  Hinder  Trade  or  Commerce,  184. 

a.  By  Formation  of  Trust,  184. 

b.  By  Obstructing  Business  of  a  Corporation,  186. 

c.  By   Preventing    Corporation  from    Employing    Certain 

Workmen,  187. 

d.  By  Preventing  Workmen  from  Obtaining  Employment, 

190. 
6.    To  Obstruct  Justice  and  the  Due  Administration  of  Law,  193. 

a.  By  Assaulting  a  Public  Officer,  194. 

b.  By   Giving  False  Evidence  and  Suppressing  Facts  on 

Trial,  194. 

c.  By  Unlawfully  Obtaining  a  Decree  of  Divorce,  196. 

d.  By  Unlawfully  Taking  Intoxicating  Liquors  Held  under 

La7cful  Seizure,  197. 

e.  By  Securing  Appointment  to  Public  Office,  198. 
6.    Under  Federal  Statutes,  200. 

a.  To  Cast  Away  Vessel  with  Intent  to  Injure  Underwriters^ 

202. 

b.  To  Defraud  the  United  States,  203. 

(i)  By  Mea/is  of  Pretended  Entry  of  Public  Lands, 

204. 
(2)  By  Renioving  Distilled  Liquors  to  Evade  Internal 
Revenue  Tax,  205. 

c.  To  Make  Fictitious  Census  Returns,  207. 

d.  To  Plunder  a  Wrecked  Steamboat,  210. 

e.  To  Prevent  Enjoyment  of  Elective  Franchise  and  Civil 

Rights  of  Citizens,  210. 

(i)  By  Prroenting  Homestead  Entry,  210. 

(2)  By  Preventing  Exercise  of  Right  of  Suffrage^ 

211. 

(3)  By  Procuring  Inspector  of  Elections  to  Neglect 

his  Duty,  213. 

II.  Civil  actions  for  conspiracy,  216. 

1.  Falsely  to  Accuse  Plaintiff  of  Criminal  Offense,  217. 

2.  To  Cheat  and  Defraud,  219. 

3.  To  Hinder  Trade  or  Cofnmerce,  220. 

a.  By  Boycotting  Manufacturer,  220. 

b.  By  Extorting  Money  from  Employer  by  Threatening  to 

Induce  Workmen  to  Leave  his  Employ,  223. 

c.  By  Injuring  Credit  of  Retail  Dealer  and  Preventing  his 

Obtaining  Supplies,  224. 

CROSS-REFERENCES. 

For  Forms  of  Indictments  for  Conspiracy  to  Import  Chinese  Laborers^ 
see  the  title  EXCLUSION  OF  CHINESE  LABORERS. 

For  Forms  of  Indictments  for  Riotous  Conspiracy,  see  the  title  RIO  T, 
ROUT,  UNLAWFUL  ASSEMBLY. 

For  matters  of  Practice,  see  the  title  CONSPIRACY,  4  Encyclop/EDIa 
OF  Pleading  and  Practice,  p.  706. 

For  matters  of  Substantive  Law,  see  the  title  CONSPIRACY,  6  Ameri- 
can AND  English  Encyclopaedia  of  Law  (2d  ed.),  p.  830. 

139  Volume  5. 


6121. 


CONSPIRACY. 


6121. 


I.  Criminal  prosecution  for  conspiracy^ 


1,  For  formal  parts  of  an  indictment, 
information  or  criminal  complaint 
consult  the  titles  Indictments;  Infor- 
mations: Criminal  Complaints. 

Conspirators,  How  Described.  —  An  in- 
dictment charging  the  defendant  with 
conspiring  with  divers  others  to  the  jury 
unknown,  is  good  though  the  other 
conspirators  were  known  to  the  jury 
and  their  names  might  have  been  set 
forth.  People  v.  Mather,  4  Wend.  (N. 
Y.)  229,  21  Am.  Dec.  122. 

Charge  of  Conspiracy.  —  Each  count  in 
an  indictment  for  conspiracy  must  con- 
tain an  express  charge  in  itself  of  the 
conspiracy.  Merely  charging  an  overt 
act  done  in  pursuance  of  a  conspiracy 
set  forth  in  a  previous  count,  without 
any  direct  charge  of  a  conspiracy,  is 
not  sufficient.  State  v.  Norton,  23  N.  J. 
L.  33.  Thus  where  the  fourth  count  in 
an  indictment  alleged  the  performance 
of  an  act  in  pursuance  of  "  the  said  un- 
lawful and  corrupt  conspiracy,"  but  did 
not  set  forth  what  the  said  conspiracy 
was,  the  count  was  held  bad.  U.  S.  v. 
Reichert,  32  Fed.  Rep.  142. 

"  TTnlawfolly."  —  The  use  of  the  word 
"unlawfully"  is  unnecessary,  though 
usual.  The  term  "conspiracy"  of  it- 
self implies  illegality.  Scholtz's  Case, 
5  C.  H.  Rec.  (N.  Y.)  112. 

"  Did  conspire,  combine,  confederate  and 
agree  together"  is  the  most  approved 
manner  of  charging  the  conspiracy,  and 
while  undoubtedly  not  absolutely  es- 
sential this  form  should  be  observed 
unless  the  indictment  be  drawn  under 
a  statute  using  other  language.  3  Rus- 
sell on  Crimes  159;   3  Chit.  Cr.  L.  143. 

Object  of  Conspiracy.  —  To  constitute  a 
conspiracy  the  purpose  to  be  effected 
by  it  must  be  unlawful,  either  in  respect 
of  its  nature  or  in  respect  of  the  means 
to  be  employed  for  its  accomplishment, 
and  the  intended  act,  where  it  has  not  a 
common-law  name  to  import  its  nature, 
must,  in  order  to  show  its  illegality,  be 
set  forth  in  an  indictment  for  conspiracy 
with  as  much  certainty  as  would  be 
necessary  in  an  indictment  for  the  per- 
petration of  it,  otherwise  it  would  not 
be  shown  to  be  criminal,  nor  would  the 
confederates  be  shown  to  be  guilty. 
Hartmann  v.  Com.  ,5  Pa.  St.  60;  State  v. 
Crowley,  41  Wis.  271. 

It  is  never  enough  that  the  purpose 
or  the  means  are  so  described  that  they 
may  be  unlawful.  If  that  is  left  uncer- 
tain, the  indictment  is  fatally  defective. 


It  must  appear  to  the  court  that,  if  the 
facts  alleged  are  proved  as  they  are 
stated,  without  any  additional  fact  or 
circumstance,  there  can  be  no  doubt  of 
the  illegality  of  the  conduct  charged, 
nor  of  its  criminality.  States.  Parker, 
43  N.  H.  83.  If  the  facts  averred  in 
an  indictment  for  conspiracy  do  not 
amount  to  the  crime,  the  indictment  is 
not  aided  by  matter  preceding  or  fol- 
lowing the  direct  averments,  as  that  the 
defendants  acted  unlawfully,  deceit- 
fully, unjustly,  to  the  great  damage, 
etc.     Com.  V.  Hunt,  4  Met.  (Mass.)  iii. 

Alleging  Means.  —  It  is  well  settled 
that  where  the  conspiracy  is  to  do  an 
act  in  itself  unlawful  it  is  not  necessary 
to  set  forth  the  particular  means  by 
which  the  conspirators  intended  to  effect 
the  illegal  object.  It  is  sufficient  to  aver 
the  act  of  conspiring  and  the  illegal  ob- 
ject of  the  conspiracy.  But  where  the 
object  of  the  conspiracy  is  lawful  or  in- 
different, and  the  act  of  conspiring  be- 
comes indictable  only  because  of  the 
illegal  means  intended  to  be  employed, 
the  means  must  be  fully  alleged.  3 
Russell  on  Crimes,  148,  149. 

Iowa.  —  State  v.  Jones,  13  Iowa  269; 
State  V.  Potter,  28  Iowa  554;  State  v. 
Stevens,  30  Iowa  391;  State  t^.  Harris, 
38  Iowa  242;  State  v.  Savoye,  48  Iowa 
562;  State  V.  Grant,  86  Iowa  216. 

Maine.  —  State  v.  Ripley,  31  Me.  386; 
State  V,  Roberts,  34  Me.  320;  State  v. 
Mayberry,  48  Me.  218. 

Massachusetts.  —  Com.  v.  Hunt,  4 
Met.  (Mass.)  in;  Com.  v.  Shedd,  7 
Cush.  (Mass.)  514. 

Michigan.  —  People  v.  Richards,  I 
Mich.  216;  Alderman  v.  People,  4  Mich. 
414;  People  V.  Clark,  10  Mich.  310;  Peo- 
ple V.  Arnold,  46  Mich.  268;  People  v. 
Petheram,  64  Mich.  252. 

Ne7v  Hampshire.  — State  v,  Burnham, 
15  N.H.  396;  State  z/.  Parker,  43  N.H.  83. 

New  York.  —  People  v.  Everest,  51 
Hun  (N.  Y.)  19;  Cromwell's  Case,  3 
C.  H.  Rec.  (N.  Y.)  35. 

Vermont.  —  State  v.  Noyes,  25  Vt.  415; 
State  V.  Keach,  40  Vt.  113. 

Wisconsin.  —  State  v.  Crowley,  41 
Wis.  271. 

United  States.  —  Pettibone  v.  U.  S., 
148  U.  S.  197. 

England.  —  Reg.  v.  Seward,  3  N.  & 
M.  557,  I  Ad.  &  El.  706,  28  E.  C.  L.  185; 
Rex  V.  Fowler,  i  East  P.  C.  461,  note. 
See  also  Rex  v.  Tanner,  i  Esp.  N.  P.  306; 
Rex  V.  Edwards,  8  Mod.  320. 


140 


Volume  5. 


6121. 


CONSPIRACY. 


6121. 


An  elaborate  review  of  the  general 
doctrine  as  to  alleging  the  means  in- 
tended to  be  employed  in  efifecting  the 
object  of  a  conspiracy  is  to  be  found  in 
Com.  V.  Barger,  14  Phila.  (Pa.)  368.  In 
this  case  Hare,  P.  J.,  said:  "The  subject 
*  *  *  may  be  considered  under  the 
following  heads:  ist.  Where  the  end 
which  the  alleged  conspirators  have  in 
view  is  criminal  and  punishable  as 
such  at  common  law.  2d.  Where  it  is 
innocent,  and  the  offense  consists  in  an 
agreement  to  accomplish  it  by  unlaw- 
ful means.  3d.  Where,  though  not 
criminal  at  common  law,  it  is  made 
punishable  by  statute.  4th.  Where  the 
accused  are  charged  with  combining  to 
effect  an  end,  which,  though  unlawful, 
would  not  have  been  criminal  had  it 
been  the  act  of  one  —  as  where  it  is 
agreed  that  A  shall  tell  a  falsehood 
with  intent  to  cheat,  and  B  corroborate 
it.  5th.  Where  combining  to  effect  an 
unlawful  purpose  has  been  made  pun- 
ishable by  statute,  without  regard  to 
the  means  employed,  if  they  are  such 
as  tend  to  the  accomplishment  of  the 
end.  All  the  authorities  concur  that 
where  the  offense  charged  is  an  agree- 
ment to  commit  a  crime,  it  is  not  neces- 
sary to  set  forth  the  intended  means, 
because  these  may  be  known  only  to 
the  guilty  parties,  and  may  vary  with 
time,  or  as  opportunity  offers.  *  *  * 
It  is  not  less  clear  under  the  authorities, 
and  on  principle,  that  an  indictment  for 
a  conspiracy  to  effect  a  lawful  object  is 
demurrable  unless  it  avers  that  the  par- 
ties agreed  to  use  some  unlawful  means, 
which  must  be  described  with  certainty 
as  being  the  gist  of  the  offense.  The 
question  which  arises  under  the  third 
head  is  more  complicated,  but  seem- 
ingly depends  on  whether  the  statute 
makes  the  act  punishable  at  all  events, 
or  only  when  it  is  accomplished  by  cer- 
tain means;  for  in  the  latter  case  what 
is  really  forbidden  is  the  means,  and 
these  must  be  set  forth  in  order  to  show 
that  the  defendants  designed  to  violate 
the  statute.  The  fourth  head  presents 
the  following  question  :  Is  a  joint 
scheme  to  defraud  punishable  at  com- 
mon law,  irrespective  of  the  means  by 
which  the  parties  intend  to  carry  it 
into  effect  ?  *  *  *  The  better  opinion 
would  seem  to  be  that  such  a  conspiracy 
is  criminal  per  se,  and  if  so,  nothing 
more  is  requisite  than  to  allege  and 
prove  that  it  exists.  *  *  *  Where  a 
statute  declares  that  it  shall  be  criminal 
to  conspire  for  the  attainment  of  a  cer- 


tain end,  it  will  be  enough  to  aver  that 
the  parties  so  combined,  contrary  to  the 
statute,  and  the  pleader  need  not  set 
forth  the  means  by  which  they  proposed 
to  make  their  intent  effectual." 

This  opinion  was  referred  to  with 
approval  in  2  Whart.  Cr.  L.  (9th  ed.) 
190,  note.  The  particular  conspiracy 
before  the  court  fell  under  the  fifth  class 
and  the  indictment  was  held  sufficient 
without  alleging  the  specific  means 
{overruling  Com.  v.  Bracken,  14  Phila. 
(Pa.)  342). 

Allegation  of  Overt  Acts.  — Where  the 
conspiracy  is  itself  unlawful,  it  is  not 
necessary  to  set  forth  in  the  indictment 
acts  done  by  the  conspirators  in  pur- 
suance of  the  unlawful  agreement;  the 
gist  of  the  offense  is  the  conspiracy. 
2  Whart.  Cr.  L.,  §  2335. 

Michigan.  —  People  v.  Richards,  I 
Mich.  216;  Alderman  v.  People,  4  Mich. 
414;  People  V.  Saunders,  25  Mich.  119; 
People  V.  Arnold,  46  Mich.  268;  People 
V.  Dyer,  79  Mich.  480. 

New  York. — Lambert  v.  People,  9 
Cow.  (N.  Y.)  578  ;  People  v.  Chase,  16 
Barb.  (N.  Y.)  495;  People  v.  Mather,  4 
Wend.  (N.  Y.)  229,  21  Am.  Dec.  122; 
contra  now  in  New  York  by  statute,  ex- 
cept in  certain  cases. 

Vermont.  —  State  v.  Noyes,  25  Vt.  415. 

England.  —  Rex  z/.  Eccles,  I  Leach,  C. 
C.  274;  Reg.  V.  Best,  i  Salk.  174;  Rex  v. 
Seward,  i  Ad.  &  El.  706,  28  E.  C.  L. 
185,  3  N.  &  M.  557.  Rex  V.  Kinnersley, 
I  Stra.  193. 

But  in  several  states  it  is  provided  by 
statute  that  no  agreement.except  to  com- 
mit a  felony  upon  the  person  of  another, 
or  to  commit  arson  or  burglary,  shall 
be  deemed  a  conspiracy,  unless  some 
act  besides  such  agreement  be  done  to 
effect  the  object  thereof,  by  one  or  more 
of  the  parties  to  such  agreement. 

California.  —  Pen.  Code  (iS97).§  184. 

Minnesota.  — Stat.  (1894),  §  6425 

Missouri.  — Rev.  Stat.  (18S9),  §  37S1. 

Montana.  —  Pen.  Code  (1895),  §  323. 

New  Jersey.  —  Gen.  Stat.  (1895),  p. 
1093;  Wood  V.  State,  47  N.  J.  L.  180. 

New  York.  —  Pen.  Code,  §  171;  Peo- 
ple V.  Chase,  16  Barb.  (N.  Y.)  495. 

North  Dakota.  —  Rev.  Codes  (1895), 
§§  7040,  8194. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §§  6427.  7383. 

Tennessee.  — Code  (1896),  §  6695. 

67a/4.  — Rev.  Stat.  (1898),  §  4158. 

Wisconsin.  —  Anno.  Stat.  (1889), 
§  4568. 

See  also 


141 


Volume  5. 


6121. 


CONSPIRACY. 


6121. 


1.  Falsely  to  Charge  One  with  Criminal  Offense. 


Arkansas.  —  Sand.  &  H.  Dig.  (1894), 

§§  1505-1509. 

Kansas.  — Gen.  Stat.  (1889),  §  5277. 

The  New  Jersey  statute,  in  requiring 
an  overt  act,  does  not  exact  a  full 
execution  of  the  conspiracy  to  render  it 
indictable.  State  v.  Hickling,  41  N.  J. 
L.  208,  32  Am.  Rep.  198;  Madden  v. 
State,  57  N.  J.  L.  324.  Nor  must  it  be 
understood  that  the  acts  set  out  consti- 
tute all  the  means  used  to  accomplish 
the  object  of  the  conspiracy.  Madden 
V.  State,  57  N.  J.  L.  324;  State  v.  Young, 
37  N.  J.  L.  184. 

An  indictment  charging  a  conspiracy 
to  do  an  act  in  itself  criminal,  and  also 
the  commission  of  such  act,  is  not  bad 
for  duplicity,  where  no  conviction  is 
sought  on  account  of  the  overt  acts. 
State  V.  Grant,  86  Iowa  216.  See  also 
State  V.  Kennedy,  63  Iowa  197. 

If  an  indictment  for  conspiracy  is  in- 
sufficient, the  defective  allegations  are 
not  aided  by  averments  of  overt  acts 
done  in  pursuance  of  the  conspiracy. 
Reg.  V.  King,  7  Q.  B.  7S2,  53  E.  C.  L. 
782;  U.  S.  V.  Britton,  108  U.  S.  199; 
U.  S.  V.  Walsh,  5  Dill.  (U.  S.)  58;  Com. 
V.  Shedd,  7  Gush.  (Mass.)  514;  Com.  v. 
Wallace,  16  Gray  (Mass.)  221;  People 
V.  Arnold,  46  Mich.  268.  But  see  Reg. 
V.  Wright,  2  Cox  C.  C.  336. 

An  indictment  failing  to  aver  the 
venue  of  the  overt  acts  done  in  pur- 
suance of  the  conspiracy  is  bad. 
People  V.  Barrett,  i  Johns.  (N.  Y.)  66. 

For  other  forms  of  indictments  for  con- 
spiracy see  as  follows: 

To  steal  title  deeds.  4  Cox  C.  C.  Ap- 
pendix xviii. 

To  solicit  tenants  to  break  their  con- 
tracts with  their  landlords,  and  to  re- 
fuse to  pay  their  rent.  Reg.  v,  Parnell, 
14  Cox  C.  C.  508. 

Wrongfully  to  charge  the  inhabitants 
of  a  parish  with  the  maintenance  of  a 
child.     I  Cox  C.  C.  Appendix  xi. 

To  extort  a  deed  by  arresting  and 
imprisoning  the  prosecutor  under  color 
and  pretense  of  legal  process.  State  v. 
Shooter,  8  Rich.  L.  (S.  Car.)  72. 

By  the  employees  of  a  dyer  to  use  the 
vats  and  dyes  of  their  employer  for  their 
own  profit,  in  violation  of  their  duty. 
Reg.  V.  Button,  3  Cox  C.  C.  229. 

To  convey,  possess  and  settle  public 
lands  under  a  pretended  title  not  de- 
rived from  the  state.  Com.  v.  Franklin, 
4  Dall.  (Pa.)  255. 

To  sell  lottery  tickets.     Com.  v.  Gil- 


lespie, 7    S.  &   R.    (Pa.)   469;   Com.  v. 
Sylvester,  6  Pa.  L.  J.  283. 

To  enter  upon  lands  and  hold  same. 
Wilson  V.  Com.,  96  Pa.  St.  56. 

To  prevent  use  of  English  language 
in  a  German  church.  Com.  v.  Eberle, 
3  S.  &  R.  (Pa.)  9. 

To  remove  goods  in  contemplation  of 
bankruptcy.  Heymann  v.  Reg.,  12 
Cox  C.  C.  383. 

To  abduct  a  young  girl  of  property 
and  cause  her  to  be  married  without  the 
consent  or  knowledge  of  her  parents 
in  order  to  secure  her  estate.  Wake- 
field's Case,  2  Lew.  C.  C.  i. 

To  marry  a  young  man  of  fortune  to 
a  woman  of  inferior  character  and  con- 
dition. Rex  V.  Thorp,  5  Mod.  218; 
Rex  V.  Serjeant,  R.  &  M.  352,  21  E.  C. 
L-  453- 

1.  For  the  formal  parts  of  an  indict- 
ment, information  or  criminal  com- 
plaint in  a  particular  jurisdiction 
consult  the  titles  Indictments;  In- 
formations; Criminal  Complaints. 

Averment  of  Overt  Acts.  —  In  several 
states  it  is  made  a  misdemeanor  for 
two  or  more  persons  to  conspire  falsely 
and  maliciously  to  indict  another  for 
any  offense,  or  to  procure  another  to 
be  charged  or  arrested  for  any  such 
offense,  or  falsely  to  move  or  maintain 
any  suit;  but  no  such  agreement  shall 
be  deemed  a  conspiracy  unless  some 
act  besides  such  agreement  be  done  to 
effect  the  object  thereof,  by  one  or  more 
of  the  parties  thereto;  and  in  the  follow- 
ing states  the  indictment  must  aver 
some  overt  act  done  in  pursuance  of 
the  conspiracy. 

California.  —  Pen.  Code  (1897),  §§ 
182,  184. 

Minnesota.  —  Stat.  (1894),  §§  37S0, 
3781. 

Montana.  —  Pen.  Code  (1895),  ^^  320- 
325. 

New  Jersey. — Gen.  Stat.  (1895),  p. 
1093,  j^  236. 

New  York.  —  Pen.  Code,  §  171;  Birds. 
Rev.  Stat.  (1S96),  p.  5S8,  §  4. 

North  Dakota.  —  Rev.  Codes  (1895), 
§§  7037-  7040,  8194. 

South  Dakota. — Dak.  Comp.  Laws 
(1887),  §§  6425,  6427,  7383. 

Tennessee.  — Code  (1896),  §  6695. 

Utah.  —Rev.  Stat.  (1898),  §  4158. 

In  other  states,  however,  an  aver- 
ment of  overt  acts  is  not  necessary. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  1294. 


142 


Volume  5, 


6121. 


CONSPIRACY. 


6121. 


a.  Of  Adultery. 
Form  No,  6  i  2  i .' 


Commonwealth  of  Massachusetts,  \  At   the  Superior  Court  begun 

County  of  Suffolk.  \      '     and    holden   at  Boston   within 

and  for  the  county  of  Suffolk.,  on  the  first  Monday  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight.* 

The  jurors  for  the  commo7iiuealth  of  Massachusetts  upon  their  oath 
present: 

That  Michael  O'Brien,  William  Clark,  and  Jane  Harper,  all  of  said 
Bostott,    on    the   seventh   day    of  January,   in    the   year  of  our  Lord 


Idaho.— Rev.  Stat.  (1887),  §  6540. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  c.  38,  §  45. 

Mississippi. — Anno.  Code  (1892),  § 
1006. 

Nebraska. — Comp,  Stat.  (1897),  §  6842. 

New  Mexico.  — Comp.  Laws,  §  845. 

Wyoming.  —  Rev.  Stat.  (18S7),  §  960. 

And  where  the  statute  requires  an 
overt  act  it  does  not  exact  a  full  exe- 
cution of  the  conspiracy  to  render  it 
indictable.  Thus,  where  in  an  indict- 
ment for  conspiracy  to  slander  a  per- 
son by  accusing  him  of  theft,  the  overt 
acts  laid  were  in  substance  that  the 
defendants  "reported  to  and  among 
his  neighbors  that  the  said  Dringer 
was  a  thief;  and  had  dishonestly  ob- 
tained certain  brass,  copper,  etc.,  from, 
etc.;  that  they  made  false  affidavits 
that  said  Dringer  was  a  dishonest  man, 
and  had  obtained  fraudulently  from 
the  Erie  company  a  large  amount  of 
copper,  brass,  etc.,  and  other  things 
fraudulently  and  in  such  a  manner  as 
to  make  it  stealing  by  said  Dringer 
from  said  company,"  it  was  con- 
tended that  the  allegation  was  of 
nothing  more  than  a  conspiracy  to  de- 
fame a  person  by  the  propagation  of 
slander,  and  that  the  wrong  was  a 
civil  injury  and  not  a  criminal  offense. 
The  court  held  otherwise,  and  that  it 
was  only  necessary  to  allege  that  some 
act  was  done  to  effect  the  object  of  the 
conspiracy.  State  v.  Hickling,  41  N.  J. 
L.  208,  32  Am.  Rep.  198. 

The  gist  of  the  offense  is  the  con- 
spiracy, and  acts  done  in  pursuance  of 
it  being  only  matter  of  aggravation, 
any  informality  or  uncertainty  in  al- 
leging such  acts  will  not  vitiate  the 
indictment.  Com.  v.  Knowlton,  2 
Mass.  530;   Rex  v.  Rispal,  3  Burr.  1320. 

Innocence  of  Prosecutor.  —  If  the  con- 
spiracy be  laid  falsely,  it  is  not  neces- 
sary to  aver  the  innocence  of  the 
prosecutor.     Reg.  v.  Best,  i  Salk.  174, 


Holt  151,  2  Ld.  Raym.  1167,  Reg.  v. 
Hollingberry,  6  D.  &  R.  345,  16  E.  C. 
L.  262;  State  V.  Locklin,  8i  Me.  251; 
Johnson  v.  State,  26  N.  J.  L.313.  And 
an  indictment  for  a  conspiracy  to  in- 
dict for  a  capital  offense  is  good 
although  the  word  falsely  is  not 
added  to  the  first  charge  of  the  con- 
spiracy, nor  the  particular  crime  there 
specified,  and  although  it  is  not  alleged 
that  the  person  charged  was  acquitted. 
Rex  V.  Spragg,  2  Burr.  993. 

For  other  forms  of  indictments  for  con- 
spiracy falsely  to  charge  one  with  a 
criminal  offense  see  as  follows. 

Arson. —  People  v.  Dyer,  79  Mich.  480. 

Corruption  of  Public  Officer.  —  Rex  v. 
Fowke,  20  How.  St.  Tr.  1185;  Rex  v. 
Fowle,  20  How.  St.  Tr.  1077. 

Forgery.  — 4  Wentw.  PI.  86. 

Keeping  Bawdy-house.  —  2  Cox  C.  C. 
Appendix  xxv. 

Keeping  Gaming-house.  —  Reg.  v.  Hol- 
lingberry, 6  D.  &  R.  345,  16  E.  C.  L.  262. 

Poisoning  Horse. — 4   Wentw.    PI.  98. 

Receiving  Stolen  Goods.  —  Davis'  Prec. 
100. 

Sodofny.  —  Rex  v.  Kinnersley,  i  Stra. 

193- 

1.  This  form  is  substantially  the  sec- 
ond count  of  the  indictment  in  Com.  v. 
O'Brien,  12  Cush.  (Mass.)  85,  in  which 
case  the  defendants  having  been  con- 
victed, moved  in  arrest  of  judgment 
for  the  reasons  that  the  count  was  bad 
in  that  it  set  forth  an  executed  con- 
spiracy to  commit  a  felony  and  the 
misdemeanor  was  merged  in  the  felony, 
also  because  it  was  double,  vague,  un- 
certain and  contradictory,  and  did  not 
set  forth  the  offense  with  sufficient  cer- 
tainty and  precision;  but  the  motion 
was  overruled.  See  also  as  to  merger 
Johnson  v.  State,  26  N.  J.  L.  313. 

Sufficient  Indictment.  —  Where  an  in- 
dictment charged  that  a  man  and  a 
woman  falsely  and  maliciously  con- 
spired "  to  charge  and  accuse  "  one  F, 


143 


Volume  5. 


6121.  CONSPIRACY.  6121. 

eighteen  hundred  and  ninety-seven,  at  Boston,  aforesaid,  being  evil- 
disposed  persons,  devising  and  intending  unjustly,  fraudulently  and 
maliciously  to  deprive  the  said  Samuel  Bigelow  of  his  good  name 
and  character,  and  to  subject  him,  without  any  just  cause,  to  the 
punishment  prescribed  by  law  for  the  crime  of  fornication  and 
adultery,  and  to  extort  from  him,  the  said  Bigelow,^  money;  to  wit, 
the  sum  of  one  thousand  dollars,  did  falsely,  unlawfully,  wickedly  and 
maliciously,  combine,  conspire,  confederate,  and  agree  together,  to 
entrap,  seduce,  and  insnare,  and  falsely  to  charge  and  accuse  him, 
the  said  Bigelow,  of  the  crime  of  adultery,  and  thereby,  by  the  means 
aforesaid,^  to  extort  from  him,  the  said  Bigelow,  money,  to  wit,  one 
ihousarid  dollars,  and  in  pursuance  of  said  agreement,  conspiracy, 
combination,  and  confederacy,  she,  the  said  Jane  Harper,  did  invite, 
entice,  allure,  and  attempt  to  seduce  the  said  Bigelow  to  visit  her  at 
the  house  of  said  O'Brien  and  Clark,  being  a  house  in  the  rear  of  the 
house  numbered  fifteen  in  Bedford  street  in  said  Boston,  on  said 
seventh  day  of  January,  in  the  evening  of  that  day,  and  in  further 
pursuance  of  said  unlawful  and  fraudulent  conspiracy,  combination, 
and  confederacy,  they,  the  said  Michael  O'Brien  and  William  Clark, 
at  Boston  aforesaid,  on  the  fifteenth  day  of  January,  in  the  year  of 
our  Lord  eighteen  hundred  and  ninety-seven,  and  on  divers  other 
days,  did  maliciously  threaten  to  accuse  him,  the  said  Bigelow,  of  the 
crime  of  fornication  and  adultery  with  the  said  Jane  Harper,  he,  the 
said  Bigelow,  then  and  there  being  a  married  man,  and  having  a 
lawful  wife  alive,  to  wit,  one  Mary  Ann  Bigelow,  with  intent  then 
and  there  unjustly,  fraudulently,  and  unlawfully  to  obtain  and  extort 
from  the  said  Bigelow,  by  the  means  aforesaid,  and  thereby,  his 
money  and  property,  to  wit,  the  sum  of  one  thousand  dollars,  for  com- 
pounding and  settling  for  the  said  pretended  crime  of  adultery;  and 
in  further  pursuance  of  said  unlawful  and  fraudulent  conspiracy, 
combination,  and  confederacy,  they,  the  said  O'Brien  and  Clark,  on 

that   he  had  committed   the   crime  of  ^(7r,^z«^//a;«,  in  the  state  aforesaid,  felo- 

adultery  with  the  woman  "with  intent  niously  to   ravish  and  carnally  know, 

thereby  then  and  there  unjustly  and  by  force  and  against  her  will,  with  in- 

unlawfully   to   obtain   and    acquire   to  tent  unjustly  to  obtain  and  acquire  to 

them"   divers   sums  of  money  of  the  them,    the    said   Albert  Hadley,    Abbie 

said   F.,    "for   compounding    the    said  Hadley   and    George   T.    Wentworth,    of 

pretended  adultery  so  falsely  and  mali-  and  from  him,  the  said  Bernhard Baer, 

ciously  charged  on  him  as  aforesaid,"  divers  sums  of  money  for  compounding 

it  was  held  that  the  indictment  charged  the    said   pretended    felonious   assault 

an    offense    with    sufficient    certainty,  so    falsely,   wickedly   and    maliciously 

Com.  V.  Andrews,  132  Mass.  263.  charged   on   him    as  aforesaid,   to   the 

insufficient    Indictment.  —  Where,    the  great  damage  of  him  the  said  Bernhard 

proof  was  that  the  defendants  conspired  Baer"    the    variance   was   held  to  be 

to  charge   Baer  with   having   seduced  fatal  to  a  conviction  under  the  indict- 

and  committed  adultery  with  one  Abbie  ment.     State  v.  Hadley,  54  N.  H.  224. 

Hadley,  and   the   indictment   charged  1.  A  charge  of  a  conspiracy  to  extort, 

that  the  defendants  "  did  conspire,  com-  money  without  saying  from  whom  is 

bine,   confederate   and   agree  together  too  general   and  cannot  be  sustained, 

to  charge   and    accuse    one    Bet-nhard  Com.  v.  Andrews,  132  Mass.  263. 

Baer  that   he   had   then    lately   before  2.  It  is  not  necessary  to  set  out  the 

made  a  felonious  assault  upon  the  said  means   in    the   charge   of    conspiracy. 

Abbie  Hadley,  with  intent  the  said  Abbie  Com.  v.  O'Brien,  12  Cush.  (Mass.)  84. 
Hadley,  at  Newmarket,  in  the  county  of 

144  Volume  5. 


6122.  CONSPIRACY.  6122. 

the  day  last  aforesaid,  at  Boston  aforesaid,  did  unjustly  and  mali- 
ciously threaten  to  injure  the  name  and  reputation  of  the  sa\6.Bigelow, 
and  to  begin  a  prosecution  against  said  Bigelow  for  the  pretended 
crime  of  adultery  and  fornication  with  said  Jane  Harper,  with  intent 
by  such  unjust  and  malicious  threats,  to  extort  money  from  the  said 
Bigelow,  against  the  law,  peace  and  dignity  of  this  commonwealth. 

Daniel  Webster,  District  Attorney. 

b.  Of  Attempt  at  Murder. 

Form  No.  6122. 

(Precedent  in  State  v.  Locklin,  81  Me.  251.)! 

[State  of  Maine. 

Franklin,  ss.  At  the  Supreme  Judicial  Court  begun  and  held  at 
Farfnington  within  and  for  said  county  of  Franklin,  on  the  second 
Tuesday  of  November  in  the  year  of  our  Lord  eighteen  hundred  and 
eighty -eight.^  ^ 

The  jurors  for  the  said  state,  upon  their  oath  present,*  that  Abner 
Searles  and  Elijah  W.  Locklin,  both  of  Rangely  in  said  county  of 
Franklin,  at  Rangely  in  said  county  of  Franklin,  on  the  fourteenth 
day  of  August,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  eighty-seven,  did  unlawfully  conspire,  confederate  and 
agree  together  with  intent  falsely,  fraudulently  and  maliciously 
to  accuse  one  J.  Wesley  Dunha?n,  that  he,  the  said  J.  Wesley  Dunham, 
then  and  there  attempted  to  kill  and  murder  the  said  Elijah 
W.  Locklin  by  then  and  there  attempting  to  administer  a  deadly 
poison  to  the  said  Elijah  W.  Locklin,  with  intent  then  and  there 
falsely,  fraudulently  and  maliciously  to  cause  the  said  y^.  Wesley  Dun- 
ham to  be  prosecuted  for  attempt  to  murder  and  kill,  of  which  crime 
the  said  J.  Wesley  Dunham  was  then  and  there  innocent,^  against  the 
peace  of  the  state,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

And  the  jurors  aforesaid  upon  their  oath  aforesaid  do  further 
present,  that  Abner  Searles  and  Elijah  W.  Lockliti,  both  of  Rangely,  in 
said  county  ol  Franklin,  at  said  Rangely,  on  the  fourteenth  day  of 
August  in  the  year  before  written,  did  unlawfully  and  maliciously 
conspire,  combine,  confederate  and  agree  together  falsely  to  charge 
and  accuse  one  J.  Wesley  Dunham  that  he  the  said  J.  Wesley  Dunham, 
did  maliciously  and  feloniously  incite,  move,  procure,  aid,  counsel, 
hire  and  command  the  said  Abner  Searles  to  attempt  to  kill  and 
murder    the    said  Elijah  W.   Locklin    by    depositing    in    the    food 

1,  This  indictment  is  sufficient  under  been  added  to  render  the  form  com- 
Me.  Rev.  Stat.  (1883),  c.  126,  §  17.     See     plete. 

also  similar  statutes  as  follows:  3.  It  was  held  in  this  case  not  to  be 

Indiana.  —  Horner's    Stat.  ^I896),  §  necessary  to  aver  that  the  defendants 

2140.  knew  or  had    reasonable  cause  for  be- 

lo-iva.  —  Code  (1897),  §  5058.  lieving  that  the  party  conspired  against 

2.  The  words  enclosed  by  [  ]  will  not  was  innocent, 
be  found  in  the  reported  case,  but  have 

5  E.  of  F.  P.  —  10.  145  Volume  5. 


6123.  CONSPIRACY.  6123. 

of  him,  the  said  Elijah  W.  Locklin,  for  said  Locklin  to  eat,  a  cer- 
tain deadly  poison,  to  wit:  one  ounce  of  paris  green,  with  intent 
then  and  there  falsely,  fraudulently  and  maliciously  to  cause  the  said 
J.  Wesley  Dunham  to  be  prosecuted  for  said  crime,  of  which  crime 
the  said  J.  Wesley  Dunham  was  then  and  there  innocent,  against  the 
peace  of  the  state,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  Abner  Searles  and  Elijah  W.  Locklin^  both  of  Rangely  in 
the  county  of  Franklin,  at  Rangely  in  the  county  of  Franklin,  on  the 
fourteenth  day  of  August,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  eighty-seven,  did  unlawfully  and  maliciously  conspire, 
combine,  confederate,  and  agree  together  falsely  to  charge  and 
accuse  one  J.  Wesley  Dunham  with  having  feloniously  and  of  his 
malice  aforethought  attempted  to  kill  and  murder  the  said  Elijah  W. 
Locklin,  with  intent  then  and  there  falsely,  fraudulently  and  mali- 
ciously to  cause  the  said  J.  Wesley  Dunham  to  be  prosecuted  for  the 
offense  aforesaid  of  which  crime  the  said  y^.  Wesley  Dunham  v^z.'s,  then 
and  there  innocent. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present,  that  in  pursuance  of  the  said  unlawful  and  malicious  combi- 
nation and  conspiracy,  the  said  Elijah  W.  Locklin  did  afterwards,  to 
wit,  on  the  twenty-second  day  of  August,  in  the  year  aforesaid,  accuse 
the  said  J.  Wesley  Dunham  of  the  crime  aforesaid,  by  procuring  and 
causing  complaint  to  be  made  before  a  trial  justice  in  and  for  said 
county,  upon  which  complaint  made  then  and  there  by  said  Locklin, 
warrant  was  issued  and  the  said  J.  Wesley  Dunham  was  arrested  on 
said  warrant,  as  then  and  there  issued,  and  taken  before  said  justice 
to  answer  to  said  complaint.  And  the  jurors  do  further  present, 
that  at  a  hearing  on  said  complaint  issued  and  procured  as  afore- 
said, held  on  the  twenty -third  day  of  said  August,  and  in  further 
pursuance  of  said  unlawful  and  malicious  combination  and  conspiracy^ 
said  Abner  Searles  and  Elijah  W.  Locklin  did  state  and  testify  under 
oath  that  said  Dunham  did  commit  the  crime  as  aforesaid,  against 
the  peace  of  the  state,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

[Andrew  Johnson,  Foreman. 

F,E.  Timberlake,  County  Attorney.]^ 

e.  Of  Being  the  Father  of  a  Bastard." 
Form  No.  6123. 

(Precedent  in  Johnson  v.  State,  26  N.  J.  L.  314.)' 
Bergen  Oyer  and  Terminer  and  General  Jail  Delivery, 

December  Term,  a.  d.  iSJ^- 
Bergen  county,  to  wit:    The  grand   inquest  of  the  State  oi  Nem 
Jersey  in  and  for  the  body  of  the  county  of  Bergen,  upon  their  oaths 

1.  The  words  enclosed  by  [  ]  will  not        2.  For  an   indictment  for   a  similar 
be  found  in  the  reported  case,  but  have     conspiracy  at  common  law  see  Reg.  v. 
been   added   to  render  the  form  com-     Best,  2  Ld.  Raym.  1167,  i  Salk.  174. 
plete.  3.  The    indictment    contained    two- 

146  Volume  5. 


6123.  CONSPIRACY.  6123. 

present,  that  Susan  Ann  Smith,  Albert  Smith,  'Maria  Smith,  Joel  M. 
Johnson,  and  Richard  Van  Winkle,  late  of  the  township  of  Franklin,  in 
the  said  county  of  Bergen,  wickedly  devising  and  intending  one  Will- 
iam W.  Packer,  not  only  of  his  credit  and  good  name  unjustly  to 
deprive,  but  also  to  obtain  and  acquire  to  themselves  of  and  from  the 
said  W.  W.  P.  divers  sums  of  money,  and  large  amoQnts  of  property 
and  other  valuable  things,  on  Xh^  fifth  day  oi  October,  in  the  year  one 
thousand  eight  hundred  and  fifty-four,  with  force  and  arms,  at  the 
township  aforesaid,  and  within  the  jurisdiction  of  this  court,  did 
amongst  themselves  unlawfully  conspire,  combine,  confederate,  and 
agree  to  extort,  obtain  and  procure,  of  and  from  the  said  W.  W.  P. 
large  sums  of  money,  and  a  large  amount  of  property,  and  security  for 
a  large  sum  of  money,  for  their  own  use;  and  in  order  to  extort,  obtain, 
and  procure  the  same,  did  corruptly  and  unlawfully  conspire  and  agree 
together  falsely  to  charge  and  cause  to  have  falsely  charged,  the  said 
W.  W.  P.  before  one  of  the  justices  of  the  peace  of  the  said  county, 
on  and  by  the  oath  of  the  said  Susan  Ann  Smith,  with  having  got  the 
said  S.  A.  S.,  she  then  being  a  single  woman,  with  child  of  a  bastard, 
and  to  procure  the  issuing  of  a  warrant  thereupon  by  such  justice  of 
the  peace  for  the  arrest  of  the  said  W.  W.  P.,  and  when  the  said  W. 
W.  P.  should  be  so  arrested  and  under  duress  of  imprisonment,  to 
extort,  obtain  and  procure  from  the  said  W.  W.  P.  said  money,  prop- 
erty, and  security  for  money  for  their  use,  by  offering  to  receive  the 
same  for  the  suppression  and  compromise  of  the  said  charge,  and  for 
the  liberation  of  the  said  W.  W.  P.  from  arrest  and  imprisonment 
under  such  warrant.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said say,  that  the  said  S.  A.  S.,  A.  S.,  J.  M.  J.,  M.  S.  and  R.  V.  W.,  the 
defendants,  in  furtherance  of  their  conspiracy,  afterwards,  to  wit,  on 
the  day  and  year  aforesaid,  at  the  township  and  in  the  county  afore- 
said, did,  before  one  James  V.  Jeralemoti,  then  being  one  of  the  justices 
of  the  peace  in  and  for  the  said  county,  falsely  charge,  and  cause  and 

counts,  both  of  which  were  sustained,  secure  and  indemnify  the  township  for 

It  was  objected  to  the  first  count  (given  the  support  of  such  bastard  child,  when 

in  the  text)  that  it  contained  no  charge  born,  and  to  extort  and  obtain  money 

of  conspiracy,  because  the  averments  andsecuritiesfor  the  payment  of  money 

show  a  felony,  i.  e.,  perjury  and  subor-  of  the  said  prosecutor,  by  offering  to 

nation  of  perjury,  in  which  the  offense  receive  the  same  as  the  consideration 

of  conspiracy  is  merged.   The  court  held  and  price  of  suppressing  such  charge, 

that  there  was  no  merger,  the  making  and  liberating  him  from  arrest  and  in- 

the  false   accusation,    etc.,    being    the  demnifying   him    from   the   pretended 

means  of  accomplishing  the  conspiracy  liability,    and   further,    that    they   did 

and  not  the  same  act.  cause  the  prosecutor  to  be  so  charged 

In  the  second  count  it  was  averred  and  arrested,  and  that   they  obtained 

that  the  defendants,  in  order  to  extort  from  him  a  bond  and  mortgage  for  the 

from  the  prosecutor  money  and  securi-  payment  of  one  thousand  dollars.     It 

ties,    did    corruptly,     unlawfully    and  was  contended  that  this  count  charged 

fraudulently    conspire    and    agree    to  no  crime,  but  merely  an  agreement  to 

charge,  and  cause  to  be  charged,  the  procure  a  settlement  or  compounding 

said  W.  W.  P.,  on  the  oath  of  S.  A.  S.,  of  a  charge  of  bastardy,  not  alleging  it 

with   having   begotten    her  with  child  to  be  false,  but  the  court  held  that  the 

of  a  bastard,  which  would,  when  born,  count  clearly  showed  a  combination  to 

be  chargeable  to  the  township,  and  to  make  a  false  charge  for  corrupt  and  un- 

procure  his  arrest,  and  thereby  to  put  lawful  purposes,  as  fully  as  if  it  were 

him  in  constraint  and  fear  of  public  in-  averred  that  the  defendants  conspired 

famy  and  disgrace,  and  of  liability  to  to  make  a  false  charge. 

147  Volume  5. 


6124.  CONSPIRACY.  6124. 

procure  the  said  S.  A.  S.  upon  and  by  her  oath,  falsely  to  charge,  that 
the  said  W.  IV.  P.  was  the  father  of  the  bastard  of  which  she  then 
alleged  herself  to  be  with  child,  and  which  she  then  alleged  was  to  be 
born  a  bastard,  and  chargeable  upon  the  township  oi  Pranklhi,  in  the 
said  county,  and  that  upon  the  said  charge  the  said  defendants  pro- 
cured a  warrant  to  be  issued  by  the  said  /.  V.  /.,  justice  of  the  peace 
as  aforesaid,  by  virtue  of  which  said  warrant  the  said  defendants  after- 
wards arrested,  and  caused  and  procured  to  be  arrested,  the  body  of 
the  said  IV.  IV.  P.,  and  him  held  in  custody,  and  while  so  under  arrest 
and  in  custody,  then  and  there  did  unlawfully,  wilfully  and  deceitfully 
endeavor  to  obtain,  extort,  and  procure  of  and  from  the  said  IV.  IV.  P. 
a  large  sum  of  money,  security  for  a  large  sum  of  money,  and  property 
and  things  of  great  value,  as  and  for  a  consideration  or  recompense  to 
them  for  compromising  and  suppressing  said  charge,  giving  up  the 
further  prosecution  thereof,  and  releasing  the  said  IV  IV.  P.,  and  then 
and  there  the  said  defendants  did,  unlawfully,  wilfully  and  fraudulently 
obtain,  extort,  and  procure  from  the  said  W.  IV.  P.,  and  cause  him  to 
make,  execute  and  deliver  a  bond  or  obligation,  under  the  hand  and 
seal  of  the  said  W.  W.  P.,  bearing  date  the  fifth  day  of  October  in  the 
year  last  aforesaid,  to  the  said  A.  S.,  in  the  penal  sum  of  two  thousand 
dollars,  upon  condition  that  the  said  W.  W.  P.  should  pay  to  the  said 
A.  S.  on  t\\Q.  first  day  oi  May  next  ensuing  the  date  thereof,  the  sum 
of  one  thousand (\o\\2lX?>\  also  a  certain  mortgage  dated  the  day  and  year 
last  aforesaid,  executed  and  given  by  the  said  W.  W.  P.  on  lands  of 
him,  the  said  W.  W.  Z'.,  situate  in  the  township  of  jFra^Zy^/zVz  aforesaid, 
to  the  saidyi.  6".,  to  secure  the  payment  of  the  said  bond,  which  bond 
and  mortgage  were  given  as  the  consideration  or  price  for  suppress- 
ing and  compromising  said  charge  and  releasing  said  W.  W.  P.  from 
arrest;  that  the  said  bond  and  mortgage  were  taken  and  received  by 
the  said  defendants  from  the  said  W.  W.  P.  for  their  use,  to  the  great 
perversion  and  obstruction  of  justice  and  the  due  administration  of 
the  laws,  to  the  evil  example  of  all  others  in  like  cases  offending, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  of  this  state,  the  government  and  dignity  of  the 
same. 

d.  Of  Larceny.' 

Form  No.  6124. 

(Precedent  in  Jones  v.  Com.,  31  Gratt.  (Va.)  837.) 

\City  of  Manchester,  to  wit. 

In  the  Hustings  Court  of  the  said  City. 

The  jurors  of  the  commonwealth  of  Virginia  in  and  for  the  body  of 

the  city  of  Manchester.,  and  now  attending  the  said  court,  upon  their 

1.  In  State  v.  Cawood,  2  Stew.  (Ala.)  and    Taylor     Brown    "  wickedly    and 

360,  the  indictment  was  sustained   as  maliciously    devising    and     intending 

being  in  conformity  to  the  precedent  in  unjustly  to  vex,  oppress yi7/i«  Self,  and 

3    Chit.  Cr.  L.   1 175,  which   was   held  to  deprive  him  of  his  good  name,  fame, 

good   in    3    Burr.  993.      Omitting  the  credit  and  reputation,  etc.,  on,  etc.,  at, 

formal  parts,  the    indictment   charged  etc.,  wickedly  and  unlawfully  among 

that  Thomas  Cawood,  Franklin  Brown  themselves,  did  combine,  conspire,  con- 

148  Volume  5. 


6125. 


CONSPIRACY. 


6125, 


oath  present,  that  Junius  E.  Jones  and  Royall  Haxall,  late  of  said 
city,  on  the  eighteenth  day  of  March  in  the  year  one  thousand  eight 
hundred  and  sroenty-eight,  and  in  the  said  city  of  Manchester  and 
within  the  jurisdiction  oi  the  Hustings  Court  of  said  city,]^  unlaw- 
fully devising  and  intending  one  Sally  Cousins  to  charge  and  convict 
of  the  larceny  of  a  certain  lot  of  railroad  iron,  the  property  of  The 
Richmond  and  Danville  Railroad  Company^  and  to  subject  (and  did 
subject)  the  said  Sally  Cousins  to  a  criminal  prosecution  (wherein  the 
said  Sally  Cousins  was  duly  acquitted),  did  unlawfully  conspire,  com- 
bine, confederate  and  agree  among  themselves,  and  that  in  pur- 
suance of  and  according  to  the  conspiracy,  combination,  confederacy 
and  agreement  aforesaid,  so  as  aforesaid  had,  they,  the  said  Juiiius 
E.  Jones  and  Royall  Haxall,  did  falsely  accuse  the  said  Sally  Cousins 
of  the  larceny  of  certain  railroad  iron  as  aforesaid,  and  did  undertake 
to  make  and  fabricate  certain  signs  and  evidences  by  which  to  con- 
vict the  said  Sally  Cousins  of  the  larceny  aforesaid,  and  did  then  and 
there  introduce  said  false  evidence  before  his  honor,  the  mayor  of 
the  city  of  Manchester^  upon  the  trial  of  Sally  Cousins  for  the  larceny 
as  aforesaid,  on  a  warrant  sworn  out  by  said  J.  E.  Jones  in  further- 
ance and  pursuance  of  the  conspiracy,  etc.,  aforesaid,  against  the 
peace  and  dignity  of  the  commonwealth  of  Virginia. 


2.  To  Cheat  or  Defraud.^ 


federate  and  agree,  falsely  and  without 
any  reasonable  or  probable  cause  what- 
soever, to  charge  and  accuse  the  said 
John  Self  with  having  stolen,  taken 
and  carried  away,  feloniously,  a  cer- 
tain bank  note,  for  the  payment  of  one 
dollar,  of  the  value  of  one  dollar,  on 
the  Augusta  Insurance  Company";  and 
"  that  the  said  Franklin  Brown,  on,  etc. , 
at.  etc. , in  pursuance  of  and  according  to 
said  conspiracy,  combination,  confeder- 
acy and  agreement,  between  them  so 
had  as  aforesaid,  did  say  to  the  said 
John  Self,  that  he,  the  saXd  John  Self, 
was  a  man  of  credit,  and  that  he,  the 
saidyi?^«  Self,  had  better  make  it  up 
than  have  his  credit  blasted.  And  that 
the  said  Franklin  Brown,  in  [further] 
pursuance  of  said  combination,  con- 
spiracy, [confederation  and  agreement 
so  had  as  aforesaid,]  did  on,  etc.,  at. 
etc.,  unlawfully  and  wickedly  exact, 
take  and  receive  of  and  from  the  said 
John  Self,  a  sorrel  mare,  of  the  goods 
and  chattels  of  the  saidyt»^«  Self,  of 
the  value  of  fifty  dollars,  for  and  as  a 
compensation  for  the  pretended  offense 
above  mentioned;  whereas,  in  truth 
and  in  fact,  the  said  John  Self  never 
was  guilty  of  any  such  offense,  etc.,  to 
the  great  damage  [of  the  said  John 
Se/f]  and  against  the  peace  and  dignity 
[of  the  state  of  A/adama^." 


See  also  Elkin  v.  People,  28  N.  Y. 
177;  State  t/.  Hickling,  41  N.  J.  L.  208, 
32  Am.  Rep.  198. 

1.  The  words  enclosed  by  [  ]  will  not 
be  found  in  the  reported  case,  but  have 
been  added  to  render  the  form  com- 
plete. 

2.  For  statutes  delaring  it  to  be  a  mis- 
demeanor for  two  or  more  persons  to 
conspire  to  cheat  or  defraud  any  person 
of  property  by  any  means  which  are  in 
themselves  criminal,  or  by  any  means 
which,  if  executed,  would  amount  to  a 
cheat  or  to  obtaining  money  or  property 
by  false  pretenses,  see  as  follows: 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 

§  1507. 

California.  —  Pen.  Code  (1897),  §  182. 

Florida.  —  Rev.  Stat.  (1892),  i^  2593. 

Idaho.  —  Rev.  Stat.  (18B7),  g  6540. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  c.  38,  §  38. 

Minnesota.  —  Stat.  (1894),  §6423. 

Mississippi.  —  Anno.  Code  (1892),  § 
1006. 

Missouri.  —  Rev.  Stat.  (1889),  §  3780. 

Montana.  —  Pen.  Code  (1895),  ^  320. 

New  Jersey.  —  Gen.  Stat.  (1S95),  p. 
1093,  §  236. 

New  York.—V^n.  Code,  §  168  (Birds. 
Rev.  Stat.  (1896),  p.  587,  g  i). 

North  Dakota.  — Rev.  Codes  (1S95), 
§  7037. 


149 


Volume  5. 


6125. 


CONSPIRACY. 


6125. 


Pennsylvania.  —  Bright.  Pur.  Dig. 
(1894),  p.  442,  ^  212. 

South  Dakota.  —  Dak.  Comp.  Laws 
(18S7),  §6425. 

Tennessee.  —  Code  (1896),  §  6693. 

Utah.—Rc\.  Stat.  (189S),  §  4156. 

For  the  formal  parts  of  the  indictment, 
information  or  criminal  complaint  in  a 
particular  jurisdiction  consult  the  titles 
Indictments;  Informations;  Criminal 
Complaints. 

Allegation  of  Means.  —  It  is  well  set- 
tled in  England  that  a  general  charge 
of  a  conspiracy  to  cheat  and  defraud 
without  setting  out  the  contemplated 
means  is  sufiicient.  Rex  z/.  Gill,  2  B.  & 
Aid.  204;  Reg.  V.  Kenrick,  5  Q.  B.  49, 
48  E.  C.  L.  48;  Reg.  V.  Gompertz,  9  Q. 

B.  824,  58  E.  C.  L.  245,  2  Cox  C.  C. 
145;  Reg.  V.  Parker,  3  Q.  B.  292,  43  E. 

C.  L.  741,  2  G.  &  D.  709;  Sydserff  v. 
Reg.,  II  Q.  B.  245,  63  E.  C.  L.  245; 
Reg.  V.  King,  7  Q.  B.  782,  53  E.  C.  L. 
782;  Latham  v.  Reg.,  5  B.  &  S.  635, 
117  E.  C.  L.  635,  9  Cox  C.  C.  516;  Rex 
V.  Eccles.,  I  Leach  C.  C.  274. 

•  Thus  an  indictment  charging  that  the 
defendants  "  unlawfully,  fraudulently 
and  deceitfully  did  conspire,  combine, 
confederate  and  agree  together  to  cheat 
and  defraud"  the  prosecutor  "of  his 
goods  and  chattels"  is  not  too  general, 
and  is  good.     Sydserff  v.  Reg.,  11  Q. 

B.  245,  63  E.  C.  L.  245.  And  an  in- 
dictment charging  that  the  defendants 
conspired  by  divers  false  pretenses  and 
subtle  means  and  devices  "  to  obtain 
from  A.  divers  large  sums  of  money  of 
the  moneys  of  the  said  A.,  and  to  cheat 
and  defraud  him  thereof,"  without  fur- 
ther stating  the  means  of  the  alleged 
conspiracy,  was  held  sufficient.  Reg. 
V.  Kenrick,  5  Q.  B.  49,  48  E.  C.  L.  48. 

For  similar  forms  held  sufficient  see 
Rex   V.  Hamilton,  7  C.  &  P.  448,  32  E. 

C.  L.  579;  Reg.  V.  Bullock,  Dears.  C.  C. 
653;  Reg.  V.  Hudson,  8  Cox  C.  C.  305, 
and  the  precedents  in  4  Cox  C.  C.  Ap- 
pendix xviii;  6  Cox  C.  C.  Appendix  Ixiii, 
Ixv,  clx. 

The  American  decisions  as  to  the 
sufficiency  of  the  form  established  in 
Rex  V.  Gill,  2  B.  &  Aid.  204,  have  not 
been  uniform.  It  is  now  settled  in  the 
majority  of  states,  however,  that,  in  the 
absence  of  statutes  affecting  the  case, 
a  general  allegation  of  a  conspiracy  to 
cheat  and  defraud  by  means  of  false 
pretenses  and  indirect  means  is  insuffi- 
cient, and  the  indictment  must  set  forth 
the  particular  means  by  which  the  ob- 
ject of  the  conspiracy  was  to  be  effected. 


since  the  words  "  to  cheat  and  defraud  ' 
do  not  necessarily  in  themselves  import 
an  act  criminal  or  unlawful.  It  is  so 
held  in  the  following  states: 

Iowa.  —  State  v.  Jones,  13  Iowa  273. 

Ketitucky.  —  Com.  v.  Ward,  92  Ky, 
158. 

Maine.  —  State  v.  Roberts,  34  Me.  320. 

Massachusetts.  —  Com.  v.  Prius,  9 
Gray  (Mass.)  127;  Com.  v.  Wallace,  16 
Gray  (Mass.)  221;  Com.  v.  Eastman,  i 
Cush.  (Mass.)  189,  48  Am.  Dec.  596; 
Com.  V.  Shedd,  7  Cush.  (Mass.)  515; 
Com.  V.  Meserve,  154  Mass.  64. 

N'ew  Hampshire.  —  State  v.  Parker, 
43  N.  H.  83. 

New  Jersey.  —  State  v.  Norton,  23  N. 
J.  L.  33. 

New  York.  —  People  v.  Eckford,  7 
Cow.  (N.  Y.)  535;  Lambert  v.  People,  9 
Cow.  (N.  Y.)  578;  March  v.  People,  7 
Barb.  (N.  Y.)39i;  People  v.  Brady,  56 
N.  Y.  182.  Compare  Scholtz's  Case,  5 
C.  H.  Rec.  (N.  Y.)  112. 

Vermont.  —  State  v.  Keach,4oVt.  113. 

But  the  contrary  view  has  been  held 
in  the  following  states: 

Illinois. — Thomas  v.  People,  113  111. 
531,  5  Am.  Crim.  Rep.  127. 

Maryland.  —  State  v.  Buchanan,  5 
Har.  &  J.  (Md.)  317. 

Michigan.  —  People  v.  Butler,  (Mich. 
1897)  69  N.  W.  Rep.  734;  People  v.  Ar- 
nold, 46  Mich.  268;  People  v.  Winslow, 
39  Mich.  505;  People  v.  Clark,  10  Mich. 
310;  People  V.  Richards,  i  Mich.  216. 

New  Jersey. —  State  v.  Young,  37  N. 
J.  L.  184. 

North  Carolina.  —  State  v.  Brady,  ,107 
N.  Car.  822. 

Wisconsin.  —  State  v.  Crowley,  41 
Wis.  271. 

It  has  been  considered  that  the  au- 
thority of  Rex  V.  Gill,  2  B.  &  Aid. 
204,  has  been  shaken  in  Pennsylvania, 
notably  by  the  case  of  Hartmann  v. 
Com.,  5  Pa.  St.  60;  but  Mr.  Wharton 
concludes  that  in  view  of  the  exceeding 
liberality  of  pleading  which  was  recog- 
nized in  Com.  v.  Eberle,  3  S.  &  R.  (Pa.) 
9;  Com.  V.  McKisson,  8  S.  &  R.  (Pa.) 
420;  Com.  V.  Gillespie,  7  S.  &  R. 
(Pa.)  469;  Collins  v.  Com.,  3  S.  &  R. 
(Pa.)  220;  Clary  v.  Com.,  4  Pa.  St.  210; 
Mifflin  V.  Com.,  5  W.  &  S.  (Pa.)  461, 
the  precedent  given  in  Rex  v.  Gill 
must  be  treated  as  if  of  unimpaired 
validity  in  Pennsylvania.  Whart.  Cr. 
L.,  §  2304;  Whart.  Prec.  (2d  ed.)  440. 

In  Com.  V.  Bracken,  14  Phila.  (Pa.) 
342,  Briggs,  J.,  said: 

"  Rex    V.    Gill   is   now   as   certainly 


150 


Volume  5. 


6125. 


CONSPIRACY. 


6125. 


settled  as  authority  in  this  state  as  a 
legal  form  for  an  unexecuted  conspiracy 
as  it  is  in  England.  But  it  has  never 
been  the  law  of  this  state  as  applicable 
to  an  executed  conspiracy,  without  the 
addition  of  the  overt  acts  by  means  of 
which  the  confederacy  was  carried  into 
effect.  Even  where  that  form  is  relied 
on  in  an  unexecuted  conspiracy,  if  it 
does  not  state  the  confederation  in  a 
manner  sufficiently  specific  to  enable 
the  defendants  to  comprehend  its  scope 
they  may,  of  right,  demand  a  bill  of  par- 
ticulars." See  also  Com.  v.  Goldsmith, 
12  Phila.  (Pa.)  632;  Com.  v.  Wilson,  4 
Crim.  L.  Mag.  249. 

In  order  to  give  needed  information 
to  the  court  and  to  the  accused,  where 
there  is  merely  a  general  charge  of  a 
conspiracy  to  obtain  property  by  false 
pretenses,  a  specification  of  particulars 
will  be  ordered  by  the  court  on  motion. 
Reg.  V.  Kenrick,  5  Q.  B.  49,  48  E.  C.  L. 
48;  Rex  V.  Hamilton,  7  C.  &  P.  448,  32 
E.  C.  L.  579;  Reg.  V.  Brown,  8  Cox  C. 
C.  69;  Reg.  V.  Rycroft,  6  Cox  C.  C.  76; 
Com.  V.  Meserve,  154  Mass.  64;  State 
V.  Brady,  107  N.  Car.  822. 

Allegation  of  Overt  Acts.  —  Under  the 
statutes  of  several  states,  the  indict- 
ment must  charge  the  performance  of 
some  overt  act  toward  effecting  the 
object  of  the  conspiracy.  See  list  of 
statutes  cited  supra,  this  note.  But  in 
other  cases  it  has  been  held  not  neces- 
sary, in  an  indictment  for  conspiracy  to 
cheat  or  defraud,  to  allege  overt  acts 
done  in  pursuance  of  the  conspiracy. 
See  for  example  Com.  v.  Fuller,  132 
Mass.  566;  Com.  v.  Eastman,  i  Cush. 
(Mass.)  189,  48  Am.  Dec.  596;  Com,  v. 
Shedd,   7   Cush.   (Mass.)  514;    Com.   v. 

iudd,  2  Mass.  329;  Com.  v.  Ward.  2 
lass.  397;  Collins  v.  Com.,  3  S.  &  R. 
(Pa.)  220;  Com.  V.  McKisson,  8  S.  &  R. 
(Pa.)  420,  II  Am.  Dec.  630;  Clary  v. 
Com.  4  Pa.  St.  210;  Heine  v.  Com.,  91 
Pa.  St.  145;  Qovs\.v,  Hadley,  13  Pa.  Co. 
Ct.  Rep.  188;  Com.  v.  Wilson,  4  Crim. 
L.  Mag.  249. 

In  Com.  V.  Bracken,  14  Phila.  (Pa.) 
342,  the  Pennsylvania  cases  are  re- 
viewed and  the  doctrine  of  these  cases 
stated  to  be,  that  where  the  indict- 
ment charges  merely  an  unexecuted 
conspiracy,  as  in  Rex  v.  Gill,  2  B.  «& 
Aid.  204,  no  overt  act  by  which  the  con- 
spiracy is  to  be  executed  by  the  con- 
federates need  be  set  out,  and  even  if 
the  overt  act  be  laid,  it  may  be  treated 
as  aggravation  merely  and  surplusage. 
But  where  the  indictment  lays  the  con- 


spiracy as  having  been  executed  the 
overt  acts  must  be  set  forth  so  speci- 
fically as  to  enable  an  innocent  defend- 
ant to  comprehend  exactly  the  nature 
of  the  offense  the  commonwealth  calls 
him  to  answer,  and  which  will  protect 
him  against  a  second  prosecution  for 
the  same  offense.  And  when  the  overt 
act  is  set  out  it  must  be  averred  to  be 
within  the  object  of  the  conspiracy  as 
stated  in  the  indictment.  Thus,  where 
a  count  in  an  indictment  charged  the 
defendants  with  a  conspiracy  to  defraud 
such  persons  as  might  be  desirous  of 
purchasing  a  certain  horse,  by  means 
of  false  pretenses  as  to  the  said  horse, 
and  charged  that  they,  in  pursuance  of 
said  conspiracy,  did  obtain  money  from 
a  certain  person,  without  alleging  that 
he  was  such  a  person  as  might  be  de- 
sirous, etc.,  the  count  was  held  insuffi- 
cient.    Reg.  V.  Henry,  i  Cox  C.  C.  loi. 

Accomplishment  of  Pnrpose.  —  The 
offense  charged  consists  in  the  con- 
spiracy to  defraud  by  false  pretenses, 
and  whether  the  object  of  the  con- 
spiracy was  successfully  accomplished 
or  not  is  immaterial.  But  if  the  con- 
spirators carry  out  or  attempt  to  carry 
out  the  object  of  the  conspiracy,  that 
fact  may  be  alleged  in  aggravation  of 
the  offense.  State  v.  Mayberry,  48  Me. 
21S;  Com.  V.  Tibbetts,  2  Mass.  536. 

Person  to  be  Befranded.  —  In  Reg.  v. 
Peck,  9  Ad.  &  El.  686,  36  E.  C.  L.  240, 
it  was  held  that  it  was  no  objection  to 
the  count  in  the  indictment  that  it  did 
not  name  the  parties  to  be  defrauded. 
See  also  Reg.  v.  Whitehouse,  6  Cox  C.  C. 
38.  But  in  Reg.  v.  King,  7  Q.  B.  782, 
53  E.  C.  L.  7S2,  an  indictment  charging 
that  defendants  conspired  to  cheat  and 
defraud  "certain  liege  subjects  of  the 
Queen  being  tradesmen,"  etc.,  was  held 
bad,  for  the  words  alleging  conspiracy 
showed  a  design  to  injure,  not  trades- 
men indefinitely,  but  individuals,  and 
therefore  either  the  persons  should 
have  been  named  or  an  excuse  stated 
for  not  naming  them.  Similarly  a 
charge  of  conspiracy  to  defraud  "the 
creditors  of  W.  E."  was  held  too  gen- 
eral. Rex  V.  Fowle,  4  C.  &  P.  592,  19 
E.  C.  L.  540. 

Description  of  Goods.  —  An  indictment 
for  a  conspiracy  "  to  defraud  J.  W. 
of  divers  goods,  and  in  pursuance  of 
that  conspiracy  defrauding  him  of 
divers  goods,  to  wit,  of  the  value  of  one 
hundred  pounds,"  cannot  be  quashed 
for  not  specifying  the  particular  goods 
of  which  the  prosecutor  had  been  de- 


151 


Volume  5. 


6125. 


CONSPIRACY. 


6125. 


a.  A  Bank. 

Form  No.  6125. 

(Precedent  in  State  v.  Buchanan,  5  Har.  &  J.  (Md.)  318.)* 


)  The  jurors  for  the  State  of  Marylajid  for 


State  of  Maryland, 

City  of  Baltimore,  to  wit :  f  the  body  of  the  City  of  Baltimore,  on  their 

oath  present,  that  by  an  Act  of  Congress  of  the  United  States,  passed 

.  To  obtain  goods  by  false  representa- 
tions as  to  property  and  occupation.  6 
Cox  C.  C.  Appendix  Ixiv, ;  Com.  v. 
Warren,  6  Mass.  74. 

To  defraud  intending  emigrants  of 
their  passage  money  by  pretending  to 
have  an  interest  in  certain  ships.  6 
Cox  C.  C.  Appendix  Ixxxi. 

To  defraud  and  deprive  one  of  her 
leasehold  and  of  the  rents  and  profits 
thereof.  Reg.  v.  Whitehouse,  6  Cox 
C.  C.  38. 

To  cheat  a  vendor  by  procuring  an 
abatement  of  price  by  false  representa- 
tions. Reg.  V.  Carlisle,  6  Cox  C.  C. 
366,  25  Eng.  L.  &  Eq.  577. 

To  defraud  railway  company  by 
reason  of  false  entries  of  stock  in  regis- 
ters of  stockholders.  7  Cox  C.  C.  Ap- 
pendix li.  • 

By  false  representations  to  induce 
the  committee  of  the  stock  exchange  to 
grant  a  settling  day  and  quotation  for 
a  certain  joint  stock  company,  and  for 
a  conspiracy  to  obtain  a  quotation  to 
induce  persons,  who  should  thereafter 
buy  and  sell  the  shares  of  the  company, 
to  believe  that  the  company  was  duly 
formed  and  constituted  and  had  com- 
plied with  the  rules  of  the  stock  ex- 
change so  as  to  entitle  the  company  to 
have  their  shares  quoted  in  the  official 
list.     Reg.  V.  Aspinall,   13  Cox   C.  C. 

230,  563- 

To  defraud  insurance  company  by 
causing  it  to  be  believed  that  one  of 
the  conspirators  had  been  burned  to 
death.  Musgrave  v.  State,  133  Ind. 
297. 

By  fraudulently  selling  property  at 
a  price  greatly  exceeding  its  value. 
State  V.  Parker,  43  N.  H.  83. 

By  inducing  one  to  buy  a  bad  note. 
People  V.  Barrett,  i  Johns.  (N.  Y.) 
66. 

By  inducing  one  to  indorse  a  forged 
note.  Respublica  v.  Ross,  2  Yeates 
(Pa.)  I. 

To  obtain  conveyance  of  real  estate. 
State  V.  Bradley,  48  Conn.  535. 

1.  It  was  contended  in  this  case  that 
as  the  improper  use,  or  embezzlement 
of  the  funds  of  the  bank,  by  either  the 


frauded.     The  gist  of  the  offense  is  the 

conspiracy.      Rex    v.    ,    i    Chit. 

Rep.  698,  18  E.  C.  L.  205;  Com.  v.  Gold- 
smith, 12  Phila.  (Pa.)  632;  Com.  v.  Wil- 
son, 4  Cr.  L.  Mag.  249.  But  in  Com. 
V.  Galbraith,6  Phila.  (Pa.)  281  (decided 
in  1867),  it  was  held  that  an  allegation  of 
a  conspiracy  to  cheat  the  prosecutor  out 
of  "$77,000  in  cash,"  without  specify- 
ing the  kind  of  dollars  meant,  was 
insufficient.  And  an  indictment  for 
conspiracy  to  cheat  and  defraud  a  party 
of  the  fruits  and  advantages  of  a  ver- 
dict obtained  is  bad  for  generality. 
Reg.  V.  Richardson,  i  M.  &  Rob.  402. 

And  an  indictment  for  a  conspiracy 
to  obtain  goods  by  false  pretenses  is 
bad,  unless  it  state  to  whom  the  goods 
belonged.  Reg.  v.  Parker,  3  Q.  B.  292, 
43  E.  C.  L.  741,  2  G.  &  D.  709. 

For  other  forms  of  indictments  for  con- 
spiracies to  cheat  and  defraud  see  as 
follows: 

By  maker  of  two  promissory  notes 
and  two  other  persons  fraudulently  to 
obtain  said  notes  from  the  holder,  i 
Cox  C.  C.  Appendix  xiii. 

To  induce  person  of  unsound  mind 
to  sign  a  paper  authorizing  defendant 
to  take  possession  of  his  goods,  i  Cox 
C.  C.  Appendix  xxvii. 

By  inducing  person  to  advance 
money  on  forged  securities.  2  Cox  C. 
C.  Appendix  vi. 

To  obtain  money  by  pretending  to  be 
desirous  of  employing  clerks  and  de- 
manding security  for  their  good  be- 
havior from  such  persons  as  should 
offer  themselves.  4  Cox  C.  C.  Appen- 
dix xiii. 

By  falsely  and  fraudulently  altering 
the  terms  of  a  lease.  4  Cox  C.  C. 
Appendix  xviii. 

To  obtain  goods  by  false  pretenses 
without  paying  for  same.  4  Cox  C. 
C.  Appendix  xxxv. 

To  defraud  railway  company  by 
traveling  without  a  ticket.  4  Cox  C. 
C.  Appendix  xxxviii. 

To  cheat  tradesmen  generally  of  their 
goods.  6  Cox  C.  C.  Ixiii.;  Com.  v. 
Boyer,  (Pa.  1823)  2  Wheel.  Cr.  Cas. 
140. 


152 


Volume  5. 


6125.  CONSPIRACY.  6125. 

on  the  tenth  day  of  April,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  sixteen,  at  the  City  of  Washington,  entitled,  "An 
Act  to  incorporate  the  subscribers  to  the  Bank  of  the  United  States," 
a  bank  was  established  and  chartered  as  a  corporation  and  body  poli- 
tic, by  the  name  and  style  of  "The  President,  Directors  and  Com- 
pany, of  the  Bank  of  the  United  States,"  with  authority,  power  and 
capacity,  among  other  things,  to  have,  purchase,  receive,  possess, 
enjoy  and  retain,  to  them  and  their  successors,  lands,  rents,  tene- 
ments, hereditaments,  goods,  chattels  and  effects,  of  whatsoever 
kind,  nature  and  quality,  to  an  amount  not  exceeding  in  the  whole, 
fifty-five  millions  of  dollars,  to  deal  and  trade  in  bills  of  exchange, 
gold  and  silver  bullion,  and  to  take  at  the  rate  of  six  per  centum  per 
annum  for  or  upon  its  loans  or  discounts,  and  to  issue  bills  or  notes 
signed  by  the  president,  and  countersigned  by  the  principal  cashier 
or  treasurer  thereof,  promising  the  payment  of  money  to  any  person 
or  persons,  his,  her,  or  their  order,  or  to  bearer,  and  that  under  and 
by  virtue  of  the  power  and  authority  given  to  the  said  directors  by 
the  said  Act  of  Congress,  an  office  of  discount  and  deposit  of  the 
said  corporation  was,  at  the  time  hereinafter  mentioned,  regularly 
and  duly  established  in  pursuance  of  the  power  contained  in  the  said 
Act,  at  the  City  of  Baltimore,  in  the  State  of  Maryland  aforesaid,  and 
that  George  Williams,  late  of  the  City  of  Baltimore,  merchant,  was  at 
the  time  hereinafter  mentioned,  and  before  and  afterwards,  one  of 
the  directors  of  the  said  Bank  of  the  United  States  at  Philadelphia, 
to  wit,  at  the  City  of  Baltimore  aforesaid,  and  that  James  A.  Buchanan, 
late  of  the  City  of  Baltimore,  merchant,  was  at  the  time  hereinafter 
mentioned,  and  before  and  since,  president  of  the  said  office  of  dis- 
count and  deposit  of  the  said  Bank  of  the  United  States  in  the  City 
of  Balti7nore,  and  that  Javies  W.  M'Culloh,  late  of  the  City  of  Balti- 
more, gentleman,  was  at  the  time  hereinafter  mentioned,  and  before 
and  afterwards,  cashier  of  the  said  office  of  discount  and  deposit  of 
the  said  Bank  of  the  United  States  in  the  City  of  Baltimore,  to  wit, 
at  the  City  of  Baltimore  aforesaid.  And  that  the  said  George  Will- 
iams, so  being  one  of  the  directors  of  the  said  Bank  of  the  United 
States,  and  the  said  James  A.  Buchanan,  so  being  president  of  the  said 
office  of  discount  and  deposit  of  the  said  bank  in  the  City  of  Balti- 
more, and  the  said  James  W.  jWCulloh,  so  being  cashier  of  the  said 
office  of  discount  and  deposit  of  the  said  bank  in  the  City  of  Balti- 
more, being  evil  disposed  and  dishonest  persons,  and  wickedly  devis- 
ing, contriving,  and  intending,  falsely,  unlawfully,  fraudulently, 
craftily  and  unjustly,  and  by  indirect  means,  to  cheat  and  impoverish 
the  said  president,  directors,  and  company,  of  the  Bank  of  the  United 
States,  and  to  defraud  them  of  their  moneys,  funds,  and  promissory 

president  or  cashier  of  the  office,  would        Defrauding  Shareholders  of  Bank.  —  For 

in  law  be  only  a  breach  of  trust,  a  com-  substance  of  an  indictment  for  a  con- 

bination  to  effect  the  same  purpose  can-  spiracy  to  defraud  the  shareholders  of 

not  amount   to   an    indictable  offense,  a  bank  by  falsely  representing  the  bank 

But  it  was  held  that  it  was  not  neces-  to  be  in  a  prosperous  condition,  so  as  to 

sary  that  the  act  conspired  to  be  done  induce  them  to  continue  to  hold  shares 

should,  if  effected  by  an  individual,  be  therein  and  to  purchase  other  shares, 

such  as  would  per  se  amount  to  an  in-  see  Reg.  v.  Esdaile,  8  Cox  C.  C.69;  Reg. 

dictable  offense.  v.  Brown,  7  Cox  C.  C.  442. 

153  Volume  5. 


6125.  CONSPIRACY.  6125. 

notes  for  the  payment  of  money,  commonly  called  bank  notes,  and  of 
their  honest  and  fair  gains  to  be  derived  under  and  pursuant  to  the  said 
Act  of  Congress  from  the  use  of  their  said  moneys,  funds,  and  promis- 
sory notes  for  the  payment  of  money,  commonly  called  bank  notes, 
on  the  eighth  day  of  May^  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  nineteen,  at  the  City  of  Baltimo?-e  aforesaid,  with  force  and 
arms,  etc.,  did  wickedly,  falsely,  fraudulently  and  unlawfully  conspire, 
combine,  confederate  and  agree  together,  by  wrongful  and  indirect 
means,  to  cheat,  defraud  and  impoverish  the  said  president,  directors 
and  company  of  the  Bank  of  the  United  States,  and  by  subtle,  fraudu- 
lent, and  indirect  means,  and  divers  artful,  unlawful  and  dishonest 
devices  and  practices,  to  obtain  and  embezzle  a  large  amount  of  money, 
and  promissory  notes  for  the  payment  of  money,  commonly  called 
bank  notes,  to  wit,  of  the  amount  and  value  oi  fifteen  hundred  thousand 
dollars,  current  money  of  the  United  States,  the  same  being  then  and 
there  the  property,  and  part  of  the  proper  funds  of  the  said  president, 
directors  and  company,  of  the  Bank  of  the  United  States,  from  and 
out  of  the  said  office  of  discount  and  deposit  of  the  said  bank  in  the 
City  of  Baltimore,  without  the  knowledge,  privity  or  consent  of  the 
said  president,  directors  and  company  of  the  Bank  of  the  United 
States,  and  also  without  the  privity,  consent  or  knowledge  of  the 
directors  of  the  said  office  of  discount  and  deposit  of  the  said  bank 
in  the  City  of  Baltimore,  for  the  purpose  of  having  and  enjoying  the 
use  thereof  for  a  long  space  of  time,  to  wit,  for  the  space  of  two 
months,  without  paying  any  interest,  discount  or  equivalent  for  the 
use  thereof,  and  without  securing  the  repayment  thereof  to  the  said 
corporation.  And  the  more  effectually  and  securely  to  perpetrate 
and  conceal  the  same,  that  the  said  James  W.  M'Culloh  should,  from 
time  to  time,  falsely  and  fraudulently  state,  allege  and  represent 
to  the  said  directors  of  the  said  office  of  discount  and  deposit  in  the 
City  of  Baltimore,  that  such  moneys  and  promissory  notes,  so  agreed 
to  be  obtained  and  embezzled  as  aforesaid,  were  loaned  on  good, 
sufficient  and  ample  security,  in  capital  stock  of  the  said  bank,  pledged 
and  deposited  therefor;  and  also  should  from  time  to  time  make  and 
fabricate  false  statements  and  vouchers  respecting  the  same,  and 
other  property  and  funds  of  the  said  corporation,  to  be  laid  before 
and  exhibited  to  the  said  bank  in  the  City  of  Baltimore,  and  that  the 
said  George  Williams,  James  A.  Buchanan,  and  James  W.  M'Culloh, 
being  such  officers  of  the  said  corporation  as  aforesaid,  did  then  and 
there,  in  pursuance  of  and  according  to  the  said  unlawful,  false,  and 
wicked  conspiracy  and  confederacy,  combination  and  agreement, 
aforesaid,  by  indirect,  subtle,  wrongful,  fraudulent  and  unlawful 
means,  and  by  divers  artful  and  dishonest  devices  and  practices,  and 
without  the  knowledge,  privity  or  consent  of  the  said  president, 
directors  and  company  of  the  Bank  of  the  United  States,  and  with- 
out the  privity,  knowledge  or  consent  of  the  directors  of  the  said 
office  of  discount  and  deposit  of  the  said  bank  in  the  City  of  Balti- 
more, obtain  and  embezzle  a  large  amount  of  moneys,  and  of  promis- 
sory notes  for  the  payment  of  money,  commonly  called  bank  notes, 
the  same  being  the  property  and  part  of  the  proper  funds  of  the  said 
corporation,  from  and  out  of  their  said  office  of  discount  and  deposit 

154  Volume  5. 


6125.  CONSPIRACY.  6125. 

in  the  City  of  Baltimore,  to  wit,  to  the  amount  and  value  oi  fifteen 
hundred  thousand  diOWax'S)  current  money  of  the  United  States,  for  the 
purpose  of  having  and  enjoying  the  use  thereof,  and  did  have  and 
enjoy  the  use  thereof,  for  a  long  space  of  time,  to  wit,  for  the  space 
of  two  months,  without  paying  any  interest,  discount  or  equivalent 
therefor,  and  without  securing  the  repayment  of  the  said  moneys, 
and  the  said  promissory  notes  for  the  payment  of  money,  commonly 
called  bank  notes;  and  did  then  and  there  fakely,  craftily,  deceitfully, 
fraudulently,  wrongfully  and  unlawfully,  keep  and  convert  the  same 
to  their  own  use  and  benefit  without  the  knowledge,  privity  or  con- 
sent of  the  said  corporation,  and  without  the  knowledge,  privity  or 
consent  of  the  directors  of  the  said  office  of  discount  and  deposit  in 
the  City  of  Baltimore,  and  did  then  and  there,  the  more  effectually  to 
perpetrate  and  conceal  the  said  conspiracy,  confederacy,  fraud  and 
embezzlement,  cause  and  procure  false  and  fraudulent  representa- 
tions, allegations,  statements  and  vouchers,  to  be  made  and  fabri- 
cated, and  the  same  to  be  exhibited  to  and  laid  before  the  directors  of 
the  said  office  of  discount  and  deposit  in  the  City  of  Baltimore,  by 
the  said  James  IV.  M'Culloh,  as  cashier  of  the  said  office  of  discount 
and  deposit,  and  respecting  the  said  moneys,  and  the  said  promissory 
notes  for  the  payment  of  money,  so  obtained  and  embezzled  as  afore- 
said, in  which  said  representations,  allegations,  statements  and 
vouchers,  it  was  then  and  there  falsely  and  fraudulently  represented, 
alleged  and  exhibited,  that  the  said  moneys,  and  promissory  notes 
for  the  payment  of  money,  were  loaned  on  good,  sufficient,  and  ample 
security  in  capital  stock  of  the  said  bank,  pledged  and  deposited 
therefor,  when  in  truth  and  in  fact  no  capital  stock  of  the  said  bank, 
and  no  other  security  was  pledged  or  deposited  therefor,  as  the  said 
George  Williams,  Jajnes  A.  Buchanan,  and  James  W.  M'Culloh,  then 
and  there  well  knew.  And  that  the  said  false,  wicked,  unlawful, 
and  fraudulent  conspiracy,  confederacy  and  agreement,  above  men- 
tioned, and  the  said  false,  wicked,  unlawful,  and  fraudulent  acts,  done 
in  pursuance  thereof  above  set  forth,  were  then  and  there  made,  done 
and  perpetrated,  by  the  said  George  Williams,  James  A.  Buchanan,  and 
James  W.  M'Culloh,  in  abuse  and  violation  of  their  duty,  and  the  trust 
reposed  in  them,  and  the  oaths  taken  and  lawfully  sworn  by  them 
respectively  as  such  officers  of  the  said  corporation  as  aforesaid. 
And  that  the  said  George  Williams,  James  A.  Buchanan,  and  James 
W.  M'Culloh,  did  then  and  there  falsely,wickedly,  fraudulently, wrong- 
fully and  unlawfully,  impoverish,  cheat  and  defraud,  the  said  presi- 
dent, directors  and  company  of  the  Bank  of  the  United  States,  to  the 
great  damage  of  the  said  president,  directors  and  company,  to  the 
evil  example  of  all  others  in  like  manner  offending,  and  against 
the  peace,  government  and  dignity  of  the  State  of  Maryland,  etc. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  present, 
that  the  said  George  Williams,  so  being  one  of  the  directors  of  said 
Bank  of  the  United  States  at  Philadelphia,  to  wit,  at  Baltimore,  afore- 
said, and  the  said  James  A.  Buchanan,  so  being  president  of  the  said 
office  of  discount  and  deposit  of  the  said  bank  in  the  City  of  Balti- 
more, and  the  said  James  W.  M'Culloh,  so  being  cashier  of  the  said 
office  of  discount  and  deposit  of  the  said  bank  in  the  City  of  Balti- 

165  Volume  5. 


6126.  CONSPIRACY.  6126. 

more^  being  evil  disposed  and  dishonest  persons,  and  wickedly  devis- 
ing and  contriving  and  intending,  falsely,  unlawfully,  fraudulently, 
craftily  and  unjustly,  and  by  indirect  means  to  cheat  and  impoverish 
the  said  president,  directors  and  company  of  the  Bank  of  the  United 
States,  and  to  defraud  them  of  their  moneys,  funds  and  promissory 
notes  for  the  payment  of  money,  commonly  called  bank  notes,  and  of 
their  honest  and  fair  gains  to  be  derived  under  and  pursuant  to  the 
said  Act  of  Congress,  from  the  use  of  their  said  moneys,  funds  and 
promissory  notes  for  the  payment  of  money,  commonly  called  bank 
notes,  afterwards,  to  wit,  on  the  eighth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  nineteen,  at  the  City  of  Baltimore 
aforesaid,  with  force  and  arms,  etc.,  did  wickedly,  falsely,  fraudulently 
and  unlawfully  conspire,  combine,  confederate,  and  agree  together 
by  wrongful  and  indirect  means  to  cheat,  defraud  and  impoverish  the 
said  president,  directors  and  company  of  the  Bank  of  the  United 
States,  and  by  subtle,  fraudulent  and  indirect  means,  and  divers  art- 
ful, unlawful  and  dishonest  devices  and  practices,  to  obtain  and  em- 
bezzle a  large  amount  of  money  and  promissory  notes  for  the  payment 
of  money,  commonly  called  bank  notes,  to  wit,  of  the  amount  and 
value  oi  fifteen  hundred  thousand do\\a.rs,  current  money  of  the  United 
States,  the  same  being  then  and  there  the  property  and  part  of  the 
proper  funds  of  the  said  president,  directors  and  company  of  the 
Bank  of  the  United  States,  of  and  out  of  the  said  office  of  discount  and 
deposit  of  the  said  bank  in  the  City  of  Baltimore,  without  the  knowl- 
edge, privity  or  consent  of  the  said  president,  directors  and  company  of 
the  Bank  of  the  United  States,  and  also  without  the  privity,  consent  or 
knowledge  of  the  directors  of  the  said  office  of  discount  and  deposit 
of  said  bank  in  the  City  of  Baltimore,  for  the  purpose  of  having  and 
enjoying  the  use  thereof  for  a  long  space  of  time,  to  wit,  for  the  space 
of  ttvo  months,  without  paying  any  interest,  discount  or  equivalent  for 
the  use  thereof,  and  without  securing  the  repayment  thereof  to  the 
said  corporation;  and  that  the  said  false,  wicked,  unlawful  and  fraudu- 
lent conspiracy,  confederacy  and  agreement  above  mentioned,  were 
then  and  there  made,  done  and  perpetrated  by  the  said  George  Will- 
iams,  James  A.  Buchanan  dt.nd  James  W.  M'Culloh  in  abuse  and  viola- 
tion of  their  duty,  and  the  trust  reposed  in  them,  and  the  oaths  taken 
and  lawfully  sworn  by  them  respectively  as  such  officers  of  the  said 
corporation  as  aforesaid,  to  the  great  damage  of  the  said  president, 
directors  and  company,  to  the  evil  example  of  all  others  in  like  man- 
ner offending,  and  against  the  peace,  government  and  dignity  of  the 
State  of  Maryland,  etc. 

Luther  Martin,  Attorney-General  of  Maryland, 
and  District  Attorney  of  Baltimore  City  Court. 

Form  No.  6126. 

(Precedent  in  State  v.  Norton,  23  N.  J.  L.  34.)' 

\^Morris  Oyer  and  Terminer  and  General  Jail  Delivery. 

Decejnber  Term,  a.  d.  i8^9. ]2 
The  grand  jurors  of  the  state  oi  New  Jersey,  in  and  for  the  body 

1.  This  form  is  the  first  count  of  the        2.  The  words   and    figures    enclosed 
indictment,  which  was  sustained.  by  [  ]  will  not  be  found  in  the  reported 

156  Volume  5. 


6126.  CON SP IRA  CY.  6126. 

of  the  county  of  Morris,  on  their  oaths^  present,  that  Lambert  Nor- 
ton, William  Thompson,  Jacob  M.  King,  Joseph  Cutler,  Samuel  S.  Doty, 
^iVidi  David  Sanderson,  all  late  of  the  township  oi  Morris,  in  the  county 
of  Morris,  and  state  of  New  Jersey,  on  the  30th  day  of  October,  in  the 
year  \Z39,  at  {Morris  aforesaid]^  and  within  the  jurisdiction  of  this 
court,  being  persons  of  evil  name  and  fame,  and  of  dishonest  con- 
versation, and  wickedly  devising  and  intending,  unjustly,  unlawfully, 
and  by  indirect  means,  to  cheat  and  defraud  "the  President,  Direc- 
tors, and  Company  of  the  State  Bank  at  Morris,"  and  other  persons 
to  the  jurors  aforesaid  unknown,  of  their  money,  goods,  chattels, 
promissory  notes,  and  effects,  on  [the  30th  day  of  October,  aforesaid,] ^ 
at  \Morris  aforesaid, ]2  within  [the  jurisdiction  of  this  court,  ]2  with 
force  and  arms,  etc.,  did  fraudulently,  maliciously,  and  unlawfully 
conspire,  combine,  unite,  confederate,  and  agree,  between  and 
among  themselves,  by  wrongful  and  indirect  means,  and  divers  acts, 
unlawful  and  dishonest  devices  and  practices,  to  cheat  and  defraud 
the  said  "  the  President,  Directors,  and  Company  of  the  State  Bank 
at  Morris,"  and  divers  other  persons  to  the  jurors  aforesaid  unknown, 
of  the  money,  goods,  and  chattels,  promissory  notes  and  effects,  of 
and  belonging  to  the  said  "the  President,  Directors,  and  Company 
of  the  State  Bank  at  Morris,"  and  divers  other  persons  to  the  jurors 
aforesaid  unknown;  and  that  in  pursuance  of  the  said  conspiracy, 
combination,  and  agreement,  made  between  and  among  them  as 
aforesaid,  the  said  Lambert  Norton,  William  Thofnpson,  Jacob  M. 
King,  Joseph  Cutler,  Sajnuel  S.  Doty,  and  David  Sanderson,  afterwards, 
to  wit,  on  [the  30th  day  of  October,  in  the  year  i8t?9,]2  at  \Morris 
aforesaid]^  and  within  [the  jurisdiction  of  this  court,  J^  fraudulently, 
maliciously,  and  unlawfully,  and  without  the  said  bank  receiving  any 
consideration  therefor,  suffered,  caused,  and  procured  the  name  of 
David  Sanderson  to  be  stricken  off  and  erased  from  a  certain  promis- 
sory note,  made  by  one  Egbert  A.  Thompson  (by  the  name  and 
description  oiE.A.  Thompson^  for  the  sum  oiten  thousand  and fifty-seve7i 
dollars  and  sixty -eight  cents,  dated  Morristown,  September  If.,  i849,  and 
payable  to  the  order  of  the  said  Egbert  A.  Thompson,  at  six  months 
after  the  date  thereof,  at  the  State  Bank  at  Morris,  for  value  received, 
without  defalcation  or  discount,  and  endorsed  by  said  Egbert  A.  Thomp- 
son and  the  said  David  Sanderson,  with  the  intent  to  release  the  said 
David  Sanderson  from  his  liability  on  said  note,  and  for  which  said 
promissory  note,  so  as  aforesaid  endorsed  by  the  said  David  San- 
derson, the  money  had  been  advanced  and  paid  by  the  said  bank;  and 
which  promissory  note  was  then,  to  wit,  on  the  day  and  year  last 
aforesaid,  the  property,  promissory  note,  and  effects  of  the  said 
"the  President,  Directors,  and  Company  of  the  State  Bank  at 
Morris,"  and  divers  other  persons  to  the  jurors  aforesaid  unknown. 

case,   but  have  been   added  to  render  not  fatal,  it  appearing,  moreover,  from 

the  form  complete.  the  caption  that  the  jurors  were  duly 

1.  An  objection  that  the  indictment  sworn, 

was  presented  on  the   "  oaths"  instead  2.  The    words  and    figures   enclosed 

of  the   "oath"  of  the  jurors  was   not  by  []  will  not  be  found  in  the  reported 

sustained.      The    use    of    the    plural,  case,  but  have   been  added  to  render 

while  unusual  and   untechnical,    was  the  form  complete. 

157  Volume  5. 


6127.  CONSPIRACY  6127. 

By  means  whereof  the  said  David  Sanderson  was  released^  from  his 
liability  to  the  said  "  the  President,  Directors,  and  Company  of  the 
State  Bank  at  Morris,"  and  divers  other  persons  to  the  jurors  afore- 
said unknown,  as  endorser  on  the  said  promissory  note;  and  thereby, 
then  and  there,  by  the  means  last  aforesaid,  the  said  Lambert  Nor- 
ton, William  Thompson,  Jacob  M.  King,  Joseph  Cutler,  Samuel  S.  Doty^ 
and  David  Sanderson,  did  greatly  impoverish  and  injure  the  said  "the 
President,  Directors,  and  Company  of  the  State  Bank  at  Morris," 
and  divers  other  persons  to  the  jurors  aforesaid  unknown,  to  the 
great  damage  of  the  said  "  the  President,  Directors,  and  Company  of 
the  State  Bank  at  Morris,"  and  divers  other  persons  to  the  jurors 
aforesaid  unknown,  against  the  peace  of  this  state,  the  government 
and  dignity  of  the  same.^ 

b.  A  County.  3 
Form  No.  6127. 

(Precedent  in  People  v.  Butler,  (Mich.  1897)  69  N.  W.  Rep.  734.)'* 

\{Commencing  as  in  Form  No.  6130,  and  continuing  donvn  to  *)]* 
that  Daniel  M.  Butler  and  William  H.  Bird,  late  of  said  city  of  De- 
troit, heretofore,  to  wit,  on  iS\^  first  day  of  May,  in  a.  d.  18PJ,  at  the 
said  city  of  Detroit,  in  the  county  aforesaid,  unlawfully,  falsely, 
deceitfully,  and  fraudulently  did  combine,  conspire,  confederate  -and 
agree  together,  by  divers  false  pretenses,  subtle  means  and  devices, 
to  attain  and  acquire  unto  themselves,  of  and  from  the  county  of 
Wayne,  a  sum  of  money,  to  wit,  the  sum  of  fifty  dollars,  of  the  value 

1.  It  was  objected  that  the  indict-  be  executed  should  also  show  it.  Mad- 
ment  disclosed  such  a  state  of  facts  as  den  v.  State,  57  N.  J.  L.  324. 
showed  that  Sanderson  could  not  have  An  indictment  for  a  conspiracy  to 
been  released,  but  the  court  without  cheat  and  defraud  a  city  which  alleges 
passing  upon  this  point  held  that  the  that  the  defendants  conspired  through 
completion  of  the  crime  did  not  depend  a  contract  to  cheat  and  defraud  the  city 
upon  the  success  of  its  object,  but  the  of  its  money  by  making  certain  false 
offense  was  consummated  by  doing  representations,  which  are  set  out,  is 
any  overt  act  in  pursuance  of  the  con-  fatally  defective  if  it  fails  to  state 
spiracy.  To  the  same  effect  see  Mad-  through  or  with  whom  the  alleged  fraud 
den  V.  State,  57  N.  J.  L.  324.  was  to  be  committed,  the  city  having 

2.  Another  count  for  conspiracy  con-  no  power  to  act  except  through  its 
eluded  "contrary  to  the  force  of  the  proper  agency.  Com.  z/.  Ward,  92  Ky. 
statute,"   etc.,    which   it   seems  would  158. 

have  been  the  proper  conclusion  in  the  For  substance  of  indictments  for  con- 
form above,  there  being  a  statute  then  spiracles  to  defraud  a  city  see  State  v. 
in  force  applicable  to  the  case.  Young,  37  N.  J.  L.  184;  People  v.  Olson, 

3.  Conspiracy  to  Cheat  a  City.  —  An  in-  (Buffalo  Super.  Ct.)  15  N.  Y.  Supp.  778; 
dictment  which  sets  out  that  certain  Casper  v.  State,  47  Wis.  535. 
persons,  being  members  of,  composing  4.  It  was  claimed  that  this  informa- 
and  acting  as  a  municipal  board,  con-  tion  should  have  been  quashed,  first, 
spired  to  cheat  the  city  of  its  moneys  because  it  states  no  offense  known  to 
by  corruptly  purchasing  supplies  for  the  law;  second,  because  it  contains  no 
the  city  at  excessive  prices  and  by  pay-  allegations  of  the  means  by  which  the 
ing  salaries  to  persons  who  rendered  defendants  conspired  to  cheat  and  de- 
no  services,  is  good.  After  this  gen-  fraud.  The  court  held  that  the  claim 
eral  allegation  of  a  corrupt  intent  it  is  could  not  be  sustained. 

not  essential  that  the  statement  of  the  5.  The  matter  to  be  supplied  within  [] 
means  by  which  the  conspiracy  was  to     will  not  be  found  in  the  reported  case. 

158  Volume  5. 


6128.  CONSPIRACY.  6129. 

oi  fifty  dollars,  of  the  money  of  it,  the  said  county  of  Wayne,  and  to 
cheat  and  defraud  it,  the  said  county  of  Wayne  thereof,  to  the  great 
damage  of  it,  the  said  county  of  Wayne  {(concluding  as  in  Form  No. 
6130).Y 

e.  An  Individual. 
(1)  Generally. 
Form  No.  6128. 

(Precedent  in  Thomas  v.  People,  113  111.  532.)* 

[State  of  Illinois, )  Of  the  March  Term  of  the  Cook  County  Crim- 

Cook  County.  )  *  inal  Court,  in  the  year  of  our  Lord  18^4.]  ^ 
The  grand  jurors,  chosen,  selected  and  sworn  in  and  for  the  county 
of  Cook  in  the  State  of  Illinois,  in  the  name  and  by  the  authority  of 
the  People  of  the  State  of  Illinois,  upon  their  oaths  present  that  Ed- 
ward F.  Thomas  and  William  G.  Murphy,  late  of  the  county  of  Cook, 
on  the  _;?r.y/ day  of  December,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  eighty-three,  in  said  county  of  Cook,  in  the  State  of 
Illinois  aforesaid,*  feloniously,  fraudulently  and  deceitfully,  did  con- 
spire and  agree  together,  with  the  fraudulent  and  malicious  intent, 
then  and  there,  feloniously,  wrongfully  and  wickedly,  to  obtain  one 
horse  of  the  value  of  %75,  one  wagon  of  the  value  of  $55,  twenty-five 
dozen  canned  goods  of  the  value  of  %50  {and  other  goods  described')^ 
and  divers  and  sundry  groceries,  dry  goods,  notions  and  fixtures  con- 
tained in  her  grocery  store  situated  on  Clark  street,  in  the  city  of 
Chicago,  in  said  county  and  State  (a  more  particular  description  of 
which  said  groceries,  dry  goods,  notions  and  fixtures  is  to  said  grand 
jurors  unknown),  of  the  value  of  %580,  the  personal  goods  and  prop- 
erty of  one  Kate  Carberry,  from  the  said  Kate  Carberry,  by  false  pre- 
tenses, and  to  cheat  and  defraud  her,  the  said  Kate  Carberry^  of  the 
same,  contrary  to  the  statute  and  against  the  peace  and  dignity  of 
the  same  People  of  the  State  of  Illinois. 

\Luther  Laflin  Mills, 
State's  Attorney.]^ 

Form  No.  6129. 

(Precedent  in  Com.  v.  Fuller,  132  Mass.  563.)* 

{{Commencing  as  in  Form  No.  6121,  and  continuing  down  to  *.)]^ 
*  *  *  And  the  jurors  for  the  Commonwealth  of  Massachusetts,  on  their 
aforesaid  oath,  do  further  present,  that  Gardner  F.  Fuller,  otherwise 

1.  The  matter  to  be  supplied  within  90  III.  384;  Johnson  v.  People,  22  III. 
[  ]  will  not  be  found  in  the  reported  314;  State  v.  Grant,  86  Iowa  216;  State 
case.  V.  Crowley,  41  Wis.  271. 

2.  This  form  is  the  first  count  of  the  3.  The  words  and  figures  enclosed 
indictment  and  was  held  good.  The  by  [  ]  will  not  be  found  in  the  reported 
second  count  charged  the  conspiracy  case,  but  have  been  added  to  render 
and  overt  acts  in  pursuance  thereof.  the  form  complete. 

Precedents.  —  See  also  precedents  of  4.  This  form  is  the  second  count  of 
similar  character  in   Evans  v.  People,     the  indictment  upon  which  the  defend- 

159  Volume  5. 


6129.  CONSPIRACY.  6129. 

called  Gardner  A.  Fuller.,  E.  Frank  Mosher  and  Abiel  W.  K.  Newton, 
all  of  said  Boston,  wickedly  devising  and  intending  to  cheat  and 
defraud  one  Daniel  Goodnow,  on  the  eighteenth  day  of  July,  in  the  year 
aforesaid,  at  said  Boston,  did  unlawfully  conspire,  confederate,  com- 
bine and  agree  together,  falsely,  knowingly,  designedly  and  fraudu- 
lently, to  cheat  and  defraud  the  said  Goodnnv  out  of  a  large  quantity 
of  goods,  wares  and  merchandise,  and  one  vessel  called  the  "-Barque 
Western  Sea"  of  the  property  of  him,  said  Goodnow,  that  is  to  say: 
Three  hundred hdA&s  of  cotton,  each  of  the  value  oi  forty  dollars;  one 
hufidred  and  twenty-two  bags  of  wool,  each  of  the  value  of  eighty 
dollars;  eight  hundred  and  seventy-three  pounds  of  tea,  each  of  the 
value  of  fifty  cents;  eight  hundred  and  fifty  gallons  of  punch,  each  of 
the  value  of  two  dollars;  fifty  kegs  of  pickles,  each  keg  the  value  of 
three  dollars;  one  machine,  called  a  "picker,"  of  the  value  of  fifty 
dollars;  sixty  bottles,,  each  of  the  value  of  one  dollar;  twenty-three  Cdise^s 
of  wine,  each  case  of  the  value  of  twenty  dollars;  one  vessel,  called 
the  ^'■Barque  Western  Sea,"  of  the  value  oi  four  thousafid  eight  hundred 
dollars;  by  means  of  false  and  fraudulent  pretenses  thereafter  to  be 
made  to  said  Goodnow  by  him,  said  Fuller,  that  he,  said  Fuller,  had 
lately  theretofore  received  an  order  from  the  Pepperell  Mantifactur- 
ing  Company  in  Biddeford,  in  the  State  of  Maine,  to  buy  for  and  on 
account  of  said  company,  for  its  use  in  its  mills  there  in  said 
Biddeford,  the  cotton  hereinbefore  described;  that  he,  said  Fuller, 
had  lately  theretofore  received  an  order  from  said  company,  and 
said  company  had  given  him,  said  Fuller,  the  authority  to  buy  for 
said  company,  and  on  its  account,  the  wool  hereinbefore  described, 
and  that  said  company  was  in  the  habit  of  using  said  wool  in 
its  mills  in  said  Biddeford,  and  in  the  manufacture  of  cloth  there 
in  its  said  mills;  that  said  company  there  in  said  Biddeford,  had  a 
shop  and  store  in  which  it  commonly  sold  groceries,  teas  and  wines, 
and  that  said  company  had  given  him,  said  Fuller,  an  order  and  the 
authority  to  buy  for  it,  and  on  its  account,  the  tea,  and  wine,  and 
bottles  hereinbefore  described,  for  sale  by  it,  said  company,  then  in 
its  pretended  shop  in  said  Biddeford;  that  said  company  had  given 
him,  said  Fuller,  an  order,  and  the  authority  to  buy  for  it,  and  on  its 
account,  the  machine  and  picker  hereinbefore  described,  for  use  in 
its  mills  there  in  said  Biddeford;  that  said  company,  because  it  was  in 
difficulty  about  the  rates  of  freight  upon  the  railroads  between  said 
Boston  and  said  Biddeford,  and  because  it  needed  for  use  in  its  busi- 

ants  wefe  tried,  the  jury  finding  a  ver-  which    the   fraud   was   to    be    accom- 

dict  of  guilty  against  Fuller  and  Mosher  plished,  are  all  fully  set  forth,  and  the 

and  not  guilty  against  Newton.    Mosher  defendant  is  connected   with  them  all. 

alleged   exceptions,   which   were  over-  A  conspiracy  to  cheat  and  defraud  one 

ruled.     The  court,   by  Allen,  J.,   said:  out  of  his  property  by   means  of  false 

"  The  second  count  of  this  indictment  and  fraudulent  pretenses  is  an  indict- 

contains  everything  necessary  in  an  in-  able  offense  of  itself.     It  is  not  neces- 

dictment  for  conspiracy,  according  to  sary  to  set  out  any  overt  acts,  or  any 

the  strictest  rules.      The   intention    to  actual  injury  to  the  person  intended  to 

cheat  and  defraud  Goodnow,   the  con-  be  defrauded,  or  any  denial  in  detail  of 

spiracy  to  do   so,  the   property  out  of  the  truth  of  the  various  false  pretenses; 

which  he  was  to  be  cheated,  the  false  the  general  statement  that  the  pretenses 

and  fraudulent  pretenses   by  means  of  were  false  and  fraudulent  is  sufficient." 

160  '      Volume  5. 


6130.  CON SP IRA  CY.  6130. 

ness  in  said  Biddeford  a  vessel,  had  authorized  him,  said  Fuller,  to 
buy  for  it,  and  on  its  account,  a  vessel  in  which  to  ship  and  carry 
all  the  goods  and  articles  hereinbefore  described,  from  said  Boston 
to  said  Biddeford,  and  had  given  him,  said  Fuller,  such  authority  to 
buy  for  its  account  the  vessel  there  called  the  '■'•Barque  Western  Sea"; 
that  said  Adi'el  IV.  K.  Neivton,  whom  he,  said  Fuller,  should  introduce 
and  present  to  said  Goodnow,  and  who  said  Newton,  should  in  the 
presence  of  him,  said  Goodnaw  and  said  Fuller,  examine  said  cotton, 
and  said  wool,  and  said  wine,  and  said  punch,  and  said  tea,  and  said 
machine,  was  the  agent  of  'S,z\di  Pepper  ell  Manufacturing  Company,  and 
was  the  person,  on  its  behalf,  who  had  given  him,  said  Fuller,  all  the 
aforesaid  orders  and  authority,  and  was  examining  all  said  articles, 
wares,  and  merchandise  for  the  purpose  of  confirming  such  authority 
and  orders  to  him,  said  Fuller,  so  to  be  falsely  pretended  to  said 
Goodnow;  that  said  E.  Frank  Mosher,  whom  said  i^z/Z/^r  should  take 
to,  and  introduce  and  present  to,  said  Goodnow,  and  who  should  say  to 
said  Goodnow  that  the  statements  of  said  Fuller  to  said  Goodno^v  about 
him,  said  Mosher,  were  true,  was  the  person  who  had  just  then  been 
sent  by  said  company,  from  said  Biddeford,  to  take  command  of  and 
charge  of  said  vessel,  and  all  the  goods  and  articles  aforesaid,  for 
and  on  behalf  of  said  company,  and  that  said  company  had  just  then 
paid  to  ^^\di  Mosher  a  month's  salary  for  such  service,  in  advance,  and 
that  he,  %^\A  Mosher,  had  just  come  in  to  S2\A  Boston  from  sdad  Bidde- 
ford; that  said  company  desired  him,  said  Goodnow,  to  make  a 
delivery  of  all  said  goods,  wares,  and  vessel,  upon  a  credit  of  ten  days, 
and  to  deliver  the  same  to  said  Mosher,  as  and  for  a  delivery  to  said 
company,  by  him,  said  Goodnow,  upon  such  credit  to  it,  said  company; 
to  the  great  damage  of  said  Goodno^v,  and  against  the  law,  peace,  and 
dignity  of  said  Commonwealth. 

[6^.  Marston,  District  Attorney.] 

Form  No.  6130. 

(Precedent  in  People  v.  Clark,  10  Mich.  3iO')' 
State  of  Michigan,  County  of  Wayne:  January  Term,   a.  d.  i^62; 
Recorder  s  Court  of  the  City  of  Detroit. 

In  the  name  of  the  people  of  the  State  of  Michigan,  I,  David  E. 
Harhaugh,  prosecuting  attorney  in  and  for  the  said  county  of  Wayne, 
who  prosecute  for  and  on  behalf  of  the  people  of  the  said  State,  in 
said  court,  come  now  here  and  give  the  court  to  understand  and  be 
informed*  that  one  Charles  Clark,  and  a  certain  other  person,  to  the 
prosecuting  attorney,  aforesaid,  unknown,  late  of  said  city,  on  the  8th 
day  of  January,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixty-two,  at  the  said  city  of  Detroit,  unlawfully,  falsely,  deceit- 
fully, and  fraudulently,  did  combine,  conspire,  confederate,  and  agree 
together,  by  divers  false  pretenses,  subtle  means  and  devices,  to 
obtain  and  acquire  to  themselves,  of  and  from  one  John  M.  Whelpley, 
a  sum  of  money,  to  wit,  the  sum  of  ten  dollars,  of  the  moneys  of  said 
John  M.  Whelpley,  and  to  cheat  and  defraud  him,  the  said  John  M. 

1.  This  information  was  held  sufficient.  See  also  a  form  in  People  v.  Wins- 
low,  39  Mich.  505. 

5  E.  of  F.  P.  —  II.  161  Volume  5. 


6131.  CONSPIRACY.  6131. 

Whelpley,  thereof:  The  said  Charles  Clark  and  the  other  person,  un- 
known as  aforesaid,  in  pursuance  of,  and  according  to  said  com- 
bination, conspiracy,  confederation  and  agreement  between  them,  as 
aforesaid  had,  did  on  the  8th  day  oi  January^  a.  d.  i2)62,  at  the  city 
of  Detroit  aforesaid,  by  said  divers  false  pretenses,  subtle  means  and 
devices,  unlawfully,  falsely,  deceitfully  and  fraudulently,  obtain  and 
acquire  to  themselves,  of  and  from  the  said  John  M.  Whelpley,  and  of 
the  moneys,  goods  and  chattels  of  the  said  John  M.  Whelpley,  two 
pieces  of  current  gold  coin  of  the  United  States  of  America,  each 
piece  of  the  value  of  Jive  dollars,  with  intent  to  cheat  and  defraud 
the  sa.\6.  John  M.  Whelpley  thereof,  to  the  great  damage  of  the  said 
Whelpley^  and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  people  of  the 
State  of  Michigan. 

David  E.  Harbaugh^ 
Prosecuting  Attorney  of  Wayne  County,  Michigan. 

Form  No.  6131. 
(Precedent  in  State  v.  Brady,  107  N.  Car.  823.)' 

f^''  cll^'  }  ^"P'"''  Court,  August  Term,  .89..  J» 

The  jurors  of  the  state  upon  their  oath  present  that  N.  P.  Brady, 
M.  D.  Brady,  R.  D.  Williams  and  J.  W.  H.  Cockerman,  late  of  the 
county  of  Moore,  on  the  10th  day  of  December,  iS87,  at  and  in  the 
county  of  Moore,  with  the  intent  to  defraud,  unlawfully,  wickedly 
and  deceitfully  did  conspire  together  to  cheat  and  defraud  William 
K.  Jackson  of  his  goods  and  chattels,  lands  and  tenements,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  state. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further 
present  that  the  said  N.  P.  Brady,  M.  D.  Brady,  R.  D.  Williams 
and  J.  W.  H.  Cockerman,  late  of  the  county  of  Moore,  at  and  in  the 
said  county,  on  the  10th  day  of  December,  i887,  with  intent  to 
defraud,  unlawfully,  wickedly  and  deceitfully  did  conspire  together 
to  cheat  and  defraud  William  K.  Jackson  of  his  goods  and  chattels, 
lands  and  tenements,  and  that  the  said  defendants,  in  pursuance  of 
said  conspiracy,  did  falsely  and  fraudulently  pretend  to  said  W.  K. 
Jackson  that  two  certain  tracts  of  land  in  Chatham  county,  contained 
gold  mines,  well  knowing  that  neither  of  the  said  tracts  of  land  con- 
tained a  gold  mine;  and  that,  in  pursuance  of  said  conspiracy, 
the  said  M.  D.  Brady  did  then  and  there  in  Moore  county  unlawfully, 
knowingly  and  designedly  obtain  from  the  said  W.  K.  Jackson  $800  in 
money  and  the  said  Jackson's  note  for  $700,  being  then  and  there  the 
property  of  the  said  Jackson,  and  the  said  N.  P.  Brady  did  then  and 

1.  The  defendants  moved  to  quash  indictment  was  held  sufficient  in  both 

this  indictment  as  to  each  count  on  the  respects. 

ground  that  it  charged  no  indictable         2.  The  words  and  figures  enclosed  by 

offense,  and  that  it  did  not  allege  the  [  ]   will  not  be  found  in   the   reported 

means  by  which  the  cheating  and  de-  case,  but  have  been  added  to  render  the 

frauding  were  to  be  effected,  but  the  form  complete. 

162  Volume  5. 


6132.  CONSPIRACY.  6132. 

there  in  said  county  of  Moore,  unlawfully,  knowingly  and  designedly 
obtain  from  the  said  W.  K.  Jackson  a  certain  tract  of  land  on  Deep 
River  in  Moore  county,  of  the  value  of  $3,000,  being  then  and  there 
the  property  of  the  said  Jackson,  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace^and  dignity 
of  the  state. 

[/.  C.  Black,  Solicitor.]! 

(2)  By  Inducing  Surrender  of  Bond  on  Pretended  ConveyaiJce. 

Form  No.  6132.* 

State  of  Maine. 

Cumberland,  ss.  At  the  Supreme  Judicial  Court  begun  and  holden 
at  Port-land  \}\X\i\Xi  and  for  the  county  of  Cumberland,  on  the  last  Tues- 
day of  November,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty-eight. 

The  jurors  for  said  state  upon  their  oath  present,  that  William  May- 
berry  and  Stephen  P.  Mayberry,  both  of  Cape  Elizabeth,  in  the  county 
of  Cumberland,  laborers,  on  the  twenty-ninth  day  of  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  diwd  fifty-eight,  unlawfully, 
fraudulently  and  maliciously,  did  conspire,  combine,  confederate  and 
agree  together,  one  Henry  Pennell  to  cheat  and  defraud,  by  then  and 
there  inducing  him,  the  said  Henry  Pennell,  a  certain  bond,  or  writ- 
ing obligatory,  signed  with  the  signature  and  name  and  sealed  with 
the  seal  of  him,  the  said  William  Mayberry,  whereby  he,  the  said  Will- 
iam Mayberry,  acknowledged  himself  to  be  indebted  to  the  said  Pen- 
nell in  the  sum  of  eighteen  hundred  dollars,  and  also  three  certain 
promissory  notes,  each  and  all  signed  with  the  signature  and  name 
of  him,  the  said  William  Mayberry,  the  tenor  of  which  said  promissory 
notes  is  to  the  jurors  unknown,  which  said  bond  or  writing  obligatory, 
and  promissory  notes,  were  then  and  there  the  property  of  him,  the 
said  Henry  Pennell,  and  were  then  and  there  of  great  value,  to  wit, 
of  the  value  of  o?ie  thousand  dollsLTs,  and  were  then  and  there,  all  and 
singular  in  full  force,  and  not  revoked,  canceled  nor  paid,  to  surren- 

1.  The  words  enclosed  by  [  ]  will  against  the  peace  and  dignfty  of  the 
not  be  found  in  the  reported  case,  state  aforesaid,"  was  held  not  to  charge 
but  have  been  added  to  render  the  form  a  conspiracy  punishable  either  at  corn- 
complete,  mon  law  or   under  the  statute  of  the 

2.  This  form,  save  for  the  omission  state  (Rev.  Stat.  (1883),  c.  126,  §  18), 
of  an  allegation  held  immaterial  by  the  making  it  a  criminal  offense  to  con- 
court,  is  the  second  count  in  the  indict-  spire  to  "  injure  the  person,  character, 
ment  in  State  v.  Mayberry,  48  Me.  218,  business,  or  property  of  another;  or  to 
which  was  held  sufficient.  do  any  illegal  act  injurious  to  the  pub- 

In8ufB.cient    Indictment.  —  An    indict-  lie  trade,  health,  morals,  police  or  ad- 

ment    charging    that    the    defendants  ministration   of   public    justice;   or  to 

"being     evil-disposed     persons,     and  commit  a  crime  punishable  by  impris- 

devising  and  intending  one  Owen  Law-  onment   in  the  state  prison."     In   the 

rence  to  injure  and  defraud,  did  unlaw-  indictment,  if  the  means  by  which  the 

fully    conspire,    combine,    confederate  intended    purpose   was    to  be   accom- 

and  agree  together  the  said  Owen  Law-  plished    be   not   set   out,    the   purpose 

rence  to  injure,  cheat  and  defraud  of  a  itself  should  appear  to  be  illegal.    State 

certain  horse,  the  property  of  the  said  v.  Hewett,  31   Me.  396.     To    the  same 

Owen  La-airence,  of  great  value,  to  wit,  effect  see  State  v.  Clary,  64  Me.  369. 
of   the   value   of  one  hundred  dollars, 

168  Volume  5. 


6133.  CONSPIRACY.  6133. 

der,  cancel  and  discharge  under  and  by  means  of  the  false  and  fraudu- 
lent pretense,  that  he,  the  said  IViliiatn  Mayberry,  was  then  and  there 
seised  and  possessed  of  a  certain  parcel  of  land,  with  the  buildings 
thereon,  situated  in  Gray.,  in  said  county  of  Cu?nberla>id,  and  that  he 
had  good  right  then  and  there  to  sell  and  convey  the  said  land  and 
buildings  to  him,  the  said  Henry  Pennell,  and  that  he,  the  said  William 
Mayberry,  would  then  and  there,  for  the  consideration  of  the  surren- 
der, cancellation  and  discharge  of  the  bond  or  writing  obligatory 
aforesaid,  and  of  the  three  promissory  notes  aforesaid,  so  as  aforesaid 
held  against  him  by  the  said  Fennell,  sell  and  convey  the  land  and 
buildings  aforesaid  in  Gray  aforesaid,  to  him  the  said  Henry  Fennell; 
when,  in  truth  and  in  fact,  he  the  said  Willia?n  Alayberry,  was  not 
then  and  there  seised  and  possessed,  as  aforesaid,  of  such  lands  or 
tenements  in  said  Gray,  and  they,  the  said  William  and  Stephen  P. 
Mayberry,  then  and  there  well  knew  that  he,  the  said  William,  was 
not  then  and  there  seised  and  possessed  of  said  lands  or  tenements  in 
said  Gray,  and  that  he,  the  said  William,  then  and  there  had  not  good 
right  then  and  there  to  sell  and  convey  to  him,  the  said  Henry  Pen- 
nell,  the  said  lands  or  tenements  situated  in  Gray  aforesaid.  And 
then  and  there  knowing,  as  aforesaid,  the  falsity  and  fraud  of  all  and 
singular  the  aforesaid  pretenses,  they,  the  said  William  Mayberry  and 
Stephen  P.  Mayberry ,  then  and  there,  as  aforesaid,  unlawfully,  fraudu- 
lently and  maliciously,  did  conspire,  combine,  confederate  and  agree 
together,  him,  the  said  Henry  Pennell,  then  and  there,  as  aforesaid, 
by  the  false  and  fraudulent  pretenses  aforesaid,  to  defraud  and  cheat, 
against  the  peace  of  the  state  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

Andrew  Johjison,  Foreman. 
James  Smith,  County  Attorney. 

(3)  By  Making  One  Drunk  and  Playing  Falsely  at  Cards.  ^ 

Form  No.  6133. 

(Precedent  in  State  v.  Younger,  i  Dev.  L.  (12  N.  Car.)  357.)' 

{(^Caption  as  in  Form  No.  61S1.)Y 

The  jurors  for  the  state  upon  their  oath  present,  that  William  G. 
Younger  dind  Richard  I.  Cook,  on  [the  tenth  day  of  October,  i8^7,]  at 
[^z////^r/^r^/^«  in  said  county]  did  combine,  conspire,  confederate  and 
agree,  to  and  with  each  other,  to  cheat  and  defraud  one  Peter  Dyer 
out  of  his  goods  and  chattels,  and  in  pursuance  of  the  aforesaid  agree- 
ment, so  as  aforesaid  between  them  had  and  made,  the  said  William  G. 
Younger  and  Richard  I.  Cook  did,  at  \Rutherfordton  aforesaid]  cause 

1.  For  an  indictment  for  a  conspiracy  ant  was  convicted  and  moved  in  arrest 
between  several  persons  to  play  at  a  of  judgment  upon  the  ground  that  the 
game  so  that  one  of  them  should  seem  indictment  did  not  state  an  indictable 
by  his  playing  to  have  much  less  skill  offense  at  common  law.  The  motion 
than  he  really  possessed  so  as  to  induce  was  overruled,  and  upon  appeal  the 
a  looker  on  to  play  with  him  and  there-  judgment  was  affirmed. 

by  lose  to  him  his  money,  see  Reg.  v.  3.  The  matter  to  be  supplied  within 
Bailey,  4  Cox  C.  C.  392.  [  ]   will  not  be  found  in  the  reported 

2.  Upon  this  indictment  the  defend-     case. 

164  Volume  5. 


6134.  CONSPIRACY.  6134. 

and  procure  the  said  Peter  Dyer  to  be  intoxicated,  and  did  then  and 
there  propose  to  him,  the  said  Peter  Dyer  to  play  at  a  game  of  cards 
for  money.  By  means  whereof,  the  said  William  G.  Younger  and  Rich- 
ard I.  Cook,  by  falsely,  fraudulently  and  deceitfully  playing  at  the  game 
of  cards,  with  him,  the  said  Peter  Dyer,  for  money,  they,  the  said  Will- 
iam G.  Younger  and  Richard  I.  Cook,  did  then  and  there  cheat  and 
defraud  him,  the  said  Peter  Dyer,  out  of  the  sum  [of  twenty  dollars,  law- 
ful money  of  the  United  States.]  And  so  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  say,  that  the  aforesaid  William  G.  Younger  diVid 
Richard/.  Cook,  by  means  of  the  aforesaid  combination,  conspiracy,  con- 
federation and  agreement,  so  as  aforesaid,  between  them,  in  manner  and 
form  as  aforesaid  had  and  made,  him,  the  said  Peter  Dyer,  of  the  afore- 
said sum  [of  twenty  dollars]  of  the  goods  and  chattels  of  him,  the  said 
Peter  Dyer,  then  and  there,  in  manner  and  form  aforesaid,  by  falsely, 
corruptly  and  deceitfully  playing  and  gambling  at  the  game  of  cards 
aforesaid,  falsely  and  deceitfully  did  cheat  and  defraud,  to  [the  great 
damage  of  him  the  said  Peter  Dyer'\  and  against  the  peace  and  dignity 
of  the  state. 

[{Signature  as  in  Form  No.  QlSl.^^ 

d.  The  Public,  by  Uttering  False  Bank  Notes.* 

Form  No.  6134. 

(Precedent  in  Collins  v.  Com.,  3.  S.  &  R.  (Pa.)  220.)' 

[In  the  Court  of  Quarter  Sessions  of  the  Peace  for  the  County  of 
Dauphin,  February  Session,  a.  d.  i8i7. 

County  of  Dauphin,  ss.  The  grand  inquest  of  the  commonwealth 
of  Pennsylvania  inquiring  for  the  body  of  the  county  oi  Dauphin  upon 
their  oaths  and  affirmations  do  present*  that  Thomas  Collins,  John 
Doe  and  Samuel  Short,  all  late  of  said  county,  on  the  first  day  of  Jan- 
uary in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seven- 
teen, at  the  county  aforesaid  and  within  the  jurisdiction  of  the  said 
court,]*  falsely,  unlawfully  and  wickedly  did  conspire,  combine,  con- 
federate and  agree  among  themselves  to  deceive  and  defraud,  and  to 
cause  to  be  deceived  and  defrauded,  divers  of  the  citizens  of  the 
Commonwealth  of  Pennsylvania,  of  great  sums  of  money,  by  means  of 
false  pretenses  and  false,  illegal,  and  unauthorized  paper  writings, 
in  the  form  and  similitude  of  bank  notes,  which  said  paper  writings 
were  of  no  value,  and  purported  to  have  been  promissory  notes,  bear- 
ing different  dates,  for  the  payment  of  divers  sums  on  demand,  by 

1.  The  matter  to  be  supplied  within  genuine  indigo  of  the  best  quality,  and 
[  ]  will  not  be  found  in  the  reported  so  to  cheat  and  defraud  the  purchasers, 
case.  Com.  v.  Judd,  2  Mass.  329. 

2.  For  other  forms  of  indictments  for  3.  For  similar  forms  of  indictment 
conspiracy  to  cheat  and  defraud  the  see  Williams  v.  Com.,  34  Pa.  St.  178; 
public  see  as  follows:  Clary  v.  Com.,  4  Pa.  St.  210;  Com.  v. 

By  means  of  the  circulation  of  a  false  Delany,  i  Grant's  Cas.  (Pa.)  224. 
prospectus    to    induce    them    to    take        4.  The  words  and  figures  enclosed  by 

shares  in  a  worthless  company.    Reg.  [  ]  will   not  be  found  in   the  reported 

V.  Gurney,  11  Cox  C.  C.  414.  case,  but  have  been   added  to   render 

By  the  manufacture  of  spurious  in-  the  form  complete, 
digo,   with  intent  to  sell  the  same  as 

165  Volume  5. 


6135.  CONSPIRACY  6135. 

the  Ohio  Exporting  and  Importing  Company,  at  their  bank  in  Ci?icinfiati, 
and  to  have  been  signed  by  Z.  Sharp  as  president,  and  /.  La?ice  as 
cashier,  when,  in  verity  and  truth,  no  such  banking  company  existed, 
and  that  according  to,  and  in  pursuance  of  the  conspiracy,  combina- 
tion, confederacy,  and  agreement  among  themselves,  had  as  afore- 
said, the  said  Thomas  Collins^  afterwards  did  fraudulently,  unlawfully, 
and  deceitfully,  offer,  and  pay,  to  one  Joseph  Preston,  for  the  purpose 
of  deceiving  and  defrauding  him,^  the  sddd  Joseph,  for,  and  as  a  good, 
genuine,  and  lawful  bank  note,  ofie  of  the  aforesaid  false,  illegal, 
and  unauthorized  paper  writings,  in  the  form  and  similitude  of  a  bank 
note,  partly  written  and  partly  printed,  purporting  to  be  a  promissory 
note  for  the  payment  of  ten  dollars,  by  the  Ohio  Exporting  and  Im- 
porting Company,  to  JV.  White,  or  bearer,  on  demand,  at  their  bank  in 
Cincinnati,  bearing  date  t\i%  fifteenth  day  oi  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  sixteen,  and  to  have  been 
signed  by  Z.  Sharp,  as  president,  and  J.  lance,  as  cashier,  he,  the 
said  Thomas  Collins,  did,  then  and  there,  to  wit,  on  [Xht  first  day  of 
January,  aforesaid,  offer  as  aforesaid],^  and  well  knowing  that  no  such 
bank  existed  in  Cincinnati,  or  elsewhere,  as  the  Ohio  Exporting  and 
Importing  Cotnpany,  and,  that  the  said  note,  purporting  to  be  a  bank 
note,  issued  by  the  said  company,  was  of  no  value,  [to  the  evil  exam- 
ple of  all  others  in  like  case  offending  and  against  tne  peace  and  dig- 
nity of  the  commonwealth  of  Pennsylvania. 

Daniel  Webster,  District  Attorney. ]3 

e.  The  State. 

Form  No.  6135.* 

Georgia,  Richmond  County. 

The  grand  jurors  selected,  chosen  and  sworn  for  the  county  of 
Richmond,  to  wit :  {Ilere  insert  names  of  jurors\  in  the   name  and 

1.  An  overt  act  charged  to  be  done  conspiracy  to  cheat  either  an  individual 
by  one  conspirator  in  pursuance  of  the  or  class  of  individuals,  or  the  public 
conspiracy  is  to  be  considered  as  the  generally;  a  general  allegation  of  an 
act  of  all.  Collins  v.  Com.,  3  S.  &  R.  intent  to  cheat  and  defraud  is  bad  for 
(Pa.)  220.  But  an  averment  of  an  uncertainty  and  ambiguity,  and  an  al- 
overt  act  is  not  necessary.  Clary  v.  legation  of  an  overt  act  in  pursuance  of 
Com.,  4  Pa.  St.  210.  the   conspiracy  directed  against  a  par- 

2.  It  is  not  necessary  to  charge  the  ticular  person  will  not  aid  the  defective 
actual  defrauding  of  any  person;  pass-  allegation  of  the  conspiracy.  Peoples/, 
ing,  with  intent  to  defraud,  is  sufficient.  Arnold,  46  Mich.  26S. 

Collins  V.  Com.,  3  S.  &  R.  (Pa.)  220.  3.  The   words   enclosed    by   [  ]  will 

And  the  indictment  may  charge  a  con-  not  be  found  in  the  reported  case,  but 

spiracy  to  cheat  or  defraud  the  public  have  been   added   to   render  the  form 

generally,  without   naming   any   indi-  complete. 

vidual  intended  to  be  defrauded.  Rex  z/.  4,  Georgia. — 3   Code    (1895),    §    287. 

De  Berenger,  3  M.  &  S.  67;  Rexz/.  Gur-  See  also  f|  288,  289. 

ney,  ii  Cox  C.  C.  414;  McKee  v.  State,  Precedent.  —  In   State  v.   Cardoza,  ii 

III    Ind.  378;  Com.   v.  Judd,  2  Mass.  S.  Car.  195,  the  indictment  was  in  four 

329;    People  V.  Arnold,  46  Mich.    268;  counts.     The  first  count   charged  that 

Malone's  Case,  2  C.  H.  Rec.  (N.  Y.)  22;  the    defendants    were    officers    of   the 

Clary  v.  Com.,  4  Pa.  St.  210;  Collins  t/.  state  and  then  charged  the  conspiracy, 

Com.,  3  S.  &  R.  (Pa.)  220.  setting  forth  the  means  in  detail.     The 

But   the   indictment   must  charge  a  second  and  third  counts  were  substan- 

166  Volume  5. 


6136.  CONSPIRACY.  6136. 

behalf  of  the  citizens  of  Georgia,  charge  and  accuse  John  Doe,  Samuel 
Short  and  William  Rufus,  of  the  county  and  state  aforesaid,  with  the 
offense  of  conspiracy,  for  that  the  said  John  Doe,  Samuel  Short  and 
William  Ru/us,  on  the  first  day  oi  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-seven,  at  the  county  aforesaid, 
did  unlawfully  and  wickedly  conspire  and  agree  to  -defraud,  cheat 
and  illegally  obtain  from  the  state  of  Georgia  a  large  sum  of  money, 
to  wit,  the  sum  of  five  thousand  dollars  of  the  property  and  moneys 
of  the  said  state,  contrary  to  the  laws  of  said  state,  the  good  order, 
peace  and  dignity  thereof. 

Superior  Court,  a.  d.  i897,  )         Daniel  Webster,  Solicitor  General. 
October  Term.  \        Richard  Roe,  Prosecutor, 

3.  To  Commit  Certain  Crimes.^ 

a.  Abduction  of  Child. 

Form  No.  6136.' 

^ake  cZnt^'  \  ^''P''''''-  Court,  February  Term,  i8P7. 

The  jurors  for  the  state  upon  their  oaths  present,*  that  on  the 
first  day  oi  January,  A,  D.  i897,  in  the  county  of  Wake,  on^  Jane 
White  then  and  there  being  the  child  of  one  John  White,  was  residing 
with  her  said  father,  John  White,  and  that  then  and  there,  while  the 
said  Jane  White  was  so  residing  with  her  said  father,  John  Doe  and 
Richard  Roe,  both  late  of  said  county,  wilfully,  unlawfully  and  wick- 
edly did  conspire,  combine,  confederate  and  agree  together  to  abduct 
the  said  Jane  White  from,  and  induce  her  the  said  Jane  White  to 
leave,  her  father  aforesaid,  the  said  John  White,  she  the  said  Jane 

tially  the  same  as  the  first.  These  January,  in  the  year  of  our  Lord  one 
counts  were  objected  to,  but  were  sus-  thousand  eight  hundred  and  seventy- 
tained  as  sufficient.  The  fourth  count  four,  with  force  and  arms,  at  Columbia, 
was  excepted  to  on  the  ground  that  the  in  the  county  and  state  aforesaid, 
statement  of  the  means  to  be  employed  unlawfully,  falsely,  fraudulently  and 
was  insufficient,  but  the  exceptions  corruptly  did  conspire,  combine,  con- 
were  overruled.  The  court,  upon  a  federate  and  agree  together,  by  divers 
careful  review  of  the  authorities,  dis-  false  pretenses  and  indirect  means,  to 
tinguished  clearly  between  conspiracies  cheat  and  defraud  the  said  state  of 
to  defraud  a  private  person  and  those  &'«M  Car^/zwa  of  alarge  sum  of  money, 
formed  for  the  purpose  of  defrauding  to  wit,  of  the  sum  oi  four  thousand  iol- 
the  public.  Conspiracies  of  the  latter  lars,  to  the  great  damage  of  the  said 
class  are  indictable  in  themselves,  and  state  of  South  Carolina,  to  the  evil  ex- 
hence  no  allegation  of  the  means  to  be  ample  of  all  others  in  like  case  offend- 
employed  is  necessary,  the  rule  being  ing,  and  against  the  peace  and  dignity 
otherwise  in  respect  to  conspiracies  to  of  the  state." 

defraud   a   private    person.      See  also  1.  For  requisites  of  indictment  gener- 

State  V.  Rickey,  9  N.  J.  L.  293.  ally  see  supra,  note  i,  p.  140. 

The  fourth  count  was  as  follows,  to  2., North    Carolina.  —  Code   (1883),  § 

wit:  974.     Under  this  statute  it  is  not  neces- 

"  And  the  jurors  aforesaid,  upon  their  sary  to  aver   that   the  defendant  was 

oaths    aforesaid,    do    further    present:  not  a  nearer  relation  to  the  child  than 

1\i2X  Richard  H.  Cleaves,  Samuel  J.  Lee,  the   person   from   whose   custody    she 

Josephus    Woodruff,    A.    O.  Jones    and  was  abducted.     State  v.  George,  93  N. 

Francis  L.  Cardoza,  late   of  the  county  Car.  567. 
and  state  aforesaid,  on  the  tenth  day  of 

167  Volume  5.. 


6137.  CON SP IRA  CY.  6137. 

White  then  and  there  being  under  the  age  of  fourteen  years,  to  wit, 
of  the  age  of  ten  years,  against  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the  state, 

Daniel  Webster,  SoUcitor. 

b.  Abortion. 

Form  No.  6137.' 

In  the  Court  of  Quarter  Sessions  of  the  Peace  for  the  County  of  Dela- 
ware, February  Session,  a.  d.  i857. 
County  of  Delaware,  ss. 

The  grand  inquest  of  the  commonwealth  of  Pennsylvania,  inquiring 
for  the  body  of  the  county  of  Delaware,  upon  their  respective  oaths 
and  affirmations,  do  present  that  John  Doe,  Samuel  Short  and  Peter 
Sharp,  all  late  of  said  county,  being  persons  of  evil  minds  and  dis- 
positions, on  the.  first  day  of  January,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-seven,  at  the  county  of  Delaware 
aforesaid,  and  within  the  jurisdiction  of  the  said  court,  unlawfully 
and  wickedly  did  conspire,  combine,  confederate  and  agree  together, 
in  and  upon  the  body  of  one  Rachel  Roe  an  assault  to  make,  with  a 
wicked  intent,  to  wit,  to  cause  and  procure  the  said  Rachel  Roe  to 
miscarry  and  to  bring  forth  a  certain  child  with  which  she  was  then 
big  and  pregnant,  dead,  to  the  great  damage  of  the  said  Rachel  Roe, 
to  the  evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace  and  dignity  of  the  comtnonwealth  oi  Pennsylvania. 

And  the  jurors  aforesaid,  upon  their  oaths  and  affirmations  afore- 
said, do  further  present  that  the  said  John  Doe,  Samuel  Short  and 
Peter  Sharp,  being  such  persons  as  aforesaid,  on  the  day  and  year  afore- 
said, and  within  the  jurisdiction  of  the  said  court,  unlawfully  and 
wickedly  did  conspire,  combine,  confederate  and  agree  together,  to 
cause  and  procure  the  said  Rachel  Roe  to  miscarry  and  to  bring 
forth  a  certain  child,  with  which  she  was  then  big  and  pregnant,  dead, 
to  the  great  damage  of  the  said  Rachel  Roe.  And  the  jurors  aforesaid, 
upon  their  oaths  and  affirmations  aforesaid,  do  further  present  that  the 

1.  This  form,  from  Whart.  Prec.  (2d  Elizabeth  Cross  was  then  pregnant  and 

ed.),  p.  470,  is  based  on  the  counts  in  that  in  due  course  of  nature  she  would 

Com.  V.  Demain,  6  Pa.  L.  J.  29,  Bright,  be  delivered  of  a  child  begotten  by  the 

(Pa.)  441,  which  were  sustained  on  spe-  saXdi  John  Howe.,  and  wickedly  intend- 

cial  demurrer  by  the  supreme  court  of  ing    and    contriving    to   conceal   such 

Pennsylvania.  pregnancy    and   to    prevent   such    her 

Woman  not  Pregnant. — A  woman  who  delivery  in  due  course  of  nature,  on 
believes  herself  to  be  with  child  but  not  June  i,  i8<?9,  did  amongst  themselves 
being  with  child  conspires  with  other  unlawfully,  knowingly,  and  wickedly 
persons  to  administer  drugs  to  herself  conspire,  combine,  confederate,  and 
or  to  use  instruments  on  herself  with  agree  together  feloniously  and  unlaw- 
intent  to  procure  abortion  is  liable  to  fully  to  procure  the  miscarriage  of  the 
be  convicted  of  conspiracy  to  procure  said  Elizabeth  Cross  by  unlawfully  ad- 
abortion.  Reg.  V.  Whitchurch,  24  Q.  ministering  to  and  causing  to  be  taken 
B.  D.  420,  8  Am.  Cr.  Rep.  i.  The  in-  by  her  certain  noxious  things,  and  by 
dictment  in  this  case  was  as  follows:  unlawfully  using  certain  instruments 
"The  jurors,  etc.,  present  that  Thomas  and  other  means,  with  intent  to  procure 
William  Whitchurch,  John  Howe,  and  the  miscarriage  of  the  said  Elizabeth- 
Elizabeth  Cross,  believing  that  the  said  Cross."    -The  indictment  also  set  out  a 

168  Volume  5. 


6138.  CONSPIRACY.  6138. 

said  defendants,  in  pursuance  of  and  according  to  the  said  conspiracy, 
combination,  confederacy  and  agreement  between  them,  the  said 
defendants  as  aforesaid,  had,  on  the  day  and  year  aforesaid,  in  the 
county  aforesaid,  and  within  the  jurisdiction  of  the  said  court,  in  and 
upon  the  body  of  the  said  Rachel  Roe,  then  and  there  being  pregnant 
and  big  with  a  certain  other  child,  did  make  an  assault,  and  her  the 
said  Rachel  Roe  then  and  there  did  bruise,  wound  and  \\\  treat,  so  that 
her  Hfe  was  thereby  greatly  despaired  of,  and  a  certain  instrument 
made  of  silver  or  other  metal,  in  the  shape  and  form  of  a  hook,  up 
and  into  the  womb  and  body  of  the  said  Rachel  Roe  then  and  there 
wickedly,  violently  and  inhumanly,  did  force  and  thrust,  with  a 
wicked  intent  to  cause  and  procure  the  said  Rachel  Roe,  as  aforesaid, 
to  miscarry  and  abort  as  aforesaid,  and  to  kill  and  murder  the  said 
child,  by  reason  whereof,  and  by  means  of  which  the  said  last-men- 
tioned premises,  the  said  child  was  killed,  and  its  life  destroyed  and 
taken  away  in  its  mother's  womb ;  and  the  said  Rachel  Roe,  after- 
wards, to  wit,  on  the  tenth  day  ol  January,  xn  the  year  aforesaid,  mis- 
carried and  was  aborted  of  the  said  child,  being  di  female  child,  to  the 
great  injury  of  the  said  Rachel  Roe,  to  the  evil  example  of  all  others 
in  the  like  case  offending,  and  against  the  peace  and  dignity  of  the 
commonwealth  of  Pennsylvania. 

Daniel  Webster,  District  Attorney. 

c.  Assault  and  Battery.' 
Form  No.  6138. 

(Precedent  in  Com.  v.  Putnam,  29  Pa.  St.  296.)' 

[In  the  Court  of  Quarter  Sessions  of  the  Peace  for  the  County  of  Erie, 
February  Sessions,  a.  d.  i857. 
County  of  Erie,  ss.  The  grand  inquest  of  the  commonwealth  of  Penn- 
sylvania inquiring  for  the  county  of  Erie  upon  their  respective  oaths 
and  affirmations  do  present  that  Francis  Putnam  and  Samuel  Short, 
late  of  said  county,  on  the  second  day  of  January  in  the  year  of  our 

number  of  acts  done  in  pursuance  of  him  a  great  bodily  injury,  in  violation 
the  conspiracy,  which  are  not  set  forth  of  law;  and  in  pursuance  of  said  con- 
in  the  case  as  reported.  spiring  together  said    defendants  did, 

1.    Precedents.  —  See    also   forms    in  in    the   night-time,    feloniously    decoy 

State    V.  Ripley,   31    Me.  386;  State  v.  said  Charles  B  lane  hard  a.yia.y  from   his 

Pulle,  12  Minn.  164;  Reg.  v.  Denew,  14  home  and   family,  and  into  the  public 

How.  St.  Tr.  895.  highway,  and  did  then  and  there  felo- 

In  State  v.  Ormiston,  66  Iowa  143,  5  niously  assault,  ill  treat,  and  tar  and 
Am.  Cr.  Rep.  113,  an  indictment  drawn  feather  the  said  Charles  Blanchard." 
under  Iowa  Code  (1897),  §  5059,  was  2.  On  trial  the  jury  found  the  de- 
held  not  bad  for  duplicity  when  the  fendants  "  guilty  in  manner  and  form 
charging  par  was  in  the  words  follow-  as  they  stand  indicted,"  but  the  court, 
ing,  to  wit:  on  motion  of  defendant's  counsel,  ar- 

"  Calvin    Ormiston,    David   Ormiston  rested    the   judgment   on    the    ground 

and  Charles  Bramer  did  wickedly  and  that  a  conspiracy  to  commit  an  assault 

maliciously  conspire  together  with  in-  and  battery  is  not  an  indictable  offense, 

tent  wrongfully  to  injure  the  person  and  This  judgment,  however,  was  reversed 

character  of  one  Charles  Blanchard,  and  by  the  supreme  court  and  the  record 

to  assault  the   said  Charles  Blanchard  remitted   for   further   proceedings    ac- 

with  the  felonious  intent  to  inflict  upon  cording  to  law. 

169  Volume  5. 


6139.  CONSPIRACY.  6139. 

Lord  one  thousand  eight  hundred  and  fifty-seventy-  with  force  and 
arms,  at  the  county  of  Erie  aforesaid,  unlawfully  and  wickedly  did 
conspire,  combine,  and  confederate,  and  agree  together,  and  with 
divers  other  evil  disposed  persons  whose  names  are  unknown  to  the 
jurors  aforesaid,  unlawfully  to  attempt  and  endeavor  to  commit  an 
assault  upon  Andrew  L.  Haskell,  then  and  there  being  in  the  county 
of  Erie  aforesaid,  and  him,  the  said  Andrew  L.  Haskell,  to  beat, 
bruise,  wound,  and  maltreat,  and  other  wrongs  to  him,  the  said  An- 
drew L.  Haskell,  in  his  person  to  do  and  inflict,  against  the  peace  and 
dignity  of  the  commonwealth  of  Pennsylvania. 

\C.  W.  Kelso,  District  Attorney. ]i 

d.  Breaking  Jail. 
(1)  To  Escape. 
Form  No.  6139.' 

{Commencing  as  in  Form  No.  6122,  and  continuing  down  to  *)  that 
William  Murray,  David  Terry,  and  Charles  Burlingham,  all  of 
Bangor  in  the  county  oi  Penobscot,  on  the  first  day  oi  April,  i897, 
were  persons  lawfully  confined  in  the  county  jail  in  Bangor,  in  the 
county  aforesaid,  then  and  there  lawfully  detained  in  the  custody  of 
the  keeper  of  said  prison,  by  divers  legal  processes  then  in  force 
against  them,  and  that  they,  the  said  William  Murray,  David  Terry, 
and  Charles  Burlingham,  unlawfully  contriving  and  intending  to 
break  down,  demolish,  prostrate  and  destroy  part  of  the  wall  belong- 
ing to  and  inclosing  the  said  prison,  and  thereby  unlawfully  to  effect 
the  escape  of  themselves,  the  said  William  Murray,  David  Terry,  and 
Charles  Burlingham,  and  divers  other  prisoners  then  lawfully  con- 
fined in  said  prison  and  in  the  custody  of  the  keeper  thereof  from 
and  out  of  the  same,  on  the  first  day  of  April  aforesaid,  at  Bangor 
in  the  county  aforesaid,  did  unlawfully  conspire,  combine,  confederate 
and  agree  among  themselves,  and  meet  together  for  the  purposes 
aforesaid,  and  being  so  assembled  and  met  together,  did  then  and 
there,  in  pursuance  of  the  conspiracy,  combination,  confederacy  and 
agreement  aforesaid,  so  as  aforesaid  had  among  themselves,  unlaw- 
fully and  wickedly  began  to  break  down,  demolish,  prostrate  and 
destroy  part  of  the  said  wall  with  intent  thereby  unlawfully  to  effect 
the  escape  of  themselves  so  there  confined  in  the  said  prison  and  in 
the  custody  of  the  keeper  thereof,  against  the  peace  {concluding  as  in 
Form  No.  6122). 

1.  The  words  enclosed  by  [  ]  will  court  held  that  the  principal  charge 
not  be  found  in  the  reported  case,  but  was  the  conspiracy,  and  that  the  break- 
have  been  added  to  render  the  form  ing  of  the  floors,  etc.,  were  alleged  as 
complete.  evidence  of  the  consummation  of  the 

2.  This  form  is  based  on  the  indict-  project,  and  that  the  conspiracy  to 
ment  in  State  v.  Murray,  15  Me.  100,  commit  a  misdemeanor  was  not  merged 
in  which  case  the  defendants,  having  in  the  commission  of  it,  and  the  ex- 
been  found  guilty,  filed  exceptions.     It  ceptions  were  overruled. 

was  objected  that  the  indictment  was         See    also  forms  in  Davis'  Prec.  106, 
bad  in  that  it  charged  two  crimes,  con-     107;  3  Chit.  Cr.  L.  1150,  1151. 
spiracy   and    prison    breach,    but    the 

170  Volume  5. 


6140. 


CONSPIRACY. 


6141. 


(2)  To  Injure  or  Kill  Prisoner. 

Form  No.  6140.' 

(Commencing  as  in  Form  No.  6136,  and  continuing  down  to  *)  that 
heretofore  and  at  the  time  of  committing  the  offenseJhereinafter  men- 
tioned one  John  White  was  a  prisoner  lawfully  confined  in  the  county 
jail  of  the  county  of  Wake,  situated  at  Raleigh  in  the  county  aforesaid, 
and  lawfully  detained  by  the  keeper  of  the  said  jail  under  a  charge  of 
rape,  and  that  John  Doe,  Richard  Roe,  and  Samuel  Short,  all  of  the 
county  of  fFa^<? aforesaid,  and  divers  other  persons  to  the  jurors  afore- 
said unknown,  on  the ^rj/ day  of  January,  a.  d.  i857,  at  the  county 
aforesaid,  unlawfully  and  wickedly,  did  conspire,  combine,  confederate 
and  agree  together  to  break  and  enter  the  said  jail  and  place  of  con- 
finement for  the  purpose  of  killing^  the  said  John  White,  he,  the  said 
John  White,  so  being  a  prisoner  and  confined  in  said  jail  as  aforesaid, 
against  {concluding  as  in  Form  No.  6136). 

e.  Burglary. 
Form  No.  6  1 4  i . 

(Precedent  in  Scudder  v.  State,  62  Ind.  14.)* 

[In  the  Jefferson  Circuit  Court  of  Indiana  of  the  November  Term,  a.  d. 
1 877. 


1.  North  Carolina.  — haws  (1893),  c. 
461,  §  I. 

2.  Or  otherwise  injuring  the  prisoner. 
N.  Car.  Laws  (1893),  c.  461,  §  i. 

3.  This  form  is  sufficient  under  Horn- 
er's Stat.  Ind.  (1896),  §  2139. 

Precedent.  —  In  Brown  v.  State,  2  Tex. 
App.  115,  it  was  held  that  in  an  indict- 
ment for  conspiracy  the  same  degree  of 
particularity  is  not  required  in  charging 
an  unexecuted  conspiracy  as  in  charg- 
ing an  executed  one.  The  charging 
part  of  the  indictment,  which  was  held 
to  be  sufficient  (see  Tex.  Pen.  Code 
(1895),  §  953  et  seq.),  was  in  the  words 
and  figures  following,  to  wit: 

"  On  the  igth  day  oijune,  A.  D.  one 
thousand  eight  hundred  and  seventy-six, 
the  said  Peter  Brown,  Sam  Mason,  Henry 
Helm,  and  Bob  White,  being  persons  of 
evil  minds  and  dispositions,  wickedly 
devising,  and  intending  fraudulently, 
burglariously,  and  by  force  to  break 
and  enter,  in  the  night-time,  the  store- 
house of  E.  H.  N'ewlon  andy.  K.  Will- 
iams, composing  the  commercial  firm 
of  E.  H.  N'ewlon  &'  Co.,  situated  in  said 
Harrison  county,  with  the  intent  to 
fraudulently  take,  steal,  and  carry  away 
from,  and  out  of,  the  possession  of  the 
said  E.  H.  Newlon  and  /.  K.  Williams, 
and  without  their  consent,  and  with  the 


intent  to  deprive  the  said  E.  H.  Newlon 
andy.  JC.  Williams  of  the  value  of  the 
same,  and  to  appropriate  the  same  to 
the  use  of  them,  the  said  Peter  Brown, 
Sam  Mason,  Henry  Helm,  and  Bob 
White,  certain  goods  and  groceries, 
of  the  value  of  one  hundred  dollars, 
the  property  of  the  said  E.  H.  New- 
Ion  andy.  K.  Williams,  they,  the  said 
Peter  Brown,  Sam  Mason,  Henry  Helm, 
and  Bob  White,  did,  on  the  day  and 
date  aforesaid,  in  the  county  aforesaid, 
fraudulently,  maliciously,  and  unlaw- 
fully conspire,  combine,  confederate, 
and  positively  agree  together,  between 
and  amongst  themselves,  by  force  and 
in  the  night-time,  to  burglariously  enter 
the  said  store-house  of  the  said  E.  H. 
Newlon  andy.  K.  Williams,  then  and 
there  situate  as  aforesaid,  with  the  in- 
tent as  aforesaid  to  fraudulently  take, 
steal,  and  carry  away  the  goods  and 
groceries  as  aforesaid,  of  the  value  of 
one  hundred  dollars,  the  property  of  the 
said  E.  H.  Newlon  andy.  K.  Williams, 
without  their  consent  and  with  the  in- 
tent to  deprive  the  said  E.  H.  Newlon 
andy  K.  Williams  of  the  value  of  the 
same,  and  to  appropriate  said  goods 
and  groceries  to  the  use  of  them,  the 
said  Peter  Brown,  Sam  Mason,  Henry 
Helm,  and  Bob  White." 


171 


Volume  5. 


6142.  CONSPIRACY.  6142. 

State  of  Indiana 

against 

Edward  D.  Scudder,  George  Scott  and 

Jacob  Batchell.  ]  ^ 

The  grand  jurors  for  the  county' oi  Jefferson  upon  their  oath  pre- 
sent, that  Edward  D.  Scudder,  George  Scott  and  Jacob  Batchell,  on  the 
25th  day  of  December,  a.  d.  i877,  at  said  county  of  Jefferson,  did  unlaw- 
fully and  feloniously  unite,  combine,  conspire  and  agree  together  and 
among  themselves,  and  each  of  them  with  the  others,  for  the  purpose 
of  feloniously  and  burglariously  breaking  and  entering,  in  the  night- 
time, into  the  storehouse  of  one  Frederick  W.  Hoblizel  then  and  there 
situate,  with  the  intent  the  moneys,  goods  and  chattels  of^  the  said 
Frederick  W.  Hoblizel  then  and  there  being,  to  [feloniously]^  steal, 
take  and  carry  away,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the  state  of 
Indiana. 

\J.  F.  Bellamy,  Prosecuting  Attorney. J  ^ 

f.  Destroying  Property. 

(1)  Dwelling-house. 

Form  No.  6142* 

State  of  Vermont,      ) 
Rutland  County,  ss.  ) 

Be  it  remembered  that  at  a  term  of  the  County  Court  begun  and 
held  at -^z^//a«^  within  and  for  the  county  of  ^2/^/a;z^ aforesaid,  on  the 
tenth  day  of  May,  a.  d.  \W1,  the  grand  jurors  within  and  for  said 
county  of  Rutland  upon  their  oath  present,  t\\2Ji  John  Doe,  Samuel 
Short  and  William  Rufus,  all  late  of  Rutland,  in  the  said  county  of 
Rutland,  on  tht.  first  day  of  April,  a,  d.  i8P7,  at  the  county  aforesaid, 
did  unlawfully  and  wickedly  conspire  together  for  the  purpose  and 
with  the  intent  violently  and  forcibly  to  burn  and  destroy  the  dwelling- 
house  of  one  John  White,  situate  at  Rutland  in  the  said  county,  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  state. 

1.  The  words  enclosed  by  [  ]  will  of  a  larceny.  It  was  so  held  also  in 
not  be  found  in  the  reported  case,  but     Smith  v.  State,  93  Ind.  67. 

have  been  added   to  render  the  form        4.    Vermont.  —  Stat.    (1894),    §    5052. 

complete.  This  statute  makes  it  a  criminal  offense 

2.  Kind  and  Valtie  of  Ooods.  —  An  in-  to  conspire  to  kill,  maim  or  wound  any 
dictment  for  a  conspiracy  to  commit  person,  or  to  rob  any  person,  corpora- 
burglary,  with  the  intent  to  steal,  take  tion  or  community,  or  to  burn,  blow 
and  carry  away  the  personal  property  of  up  or  otherwise  destroy  any  bank 
a  person  named,  is  not  defective  for  building,  store,  factory,  dwelling  or 
failing  to  state  the  kind  or  value  of  the  other  building,  or  depository  of  prop- 
goods  intended  to  be  stolen.  Reinhold  erty,  or  a  railroad  car  or  engine,  or  any 
V.  State,  130  Ind.  467.  vessel,  steamboat  or  other  water  craft, 

3.  The  indictment  in  this  case  was  finished  or  unfinished,  for  use  in  navi- 
held  insufficient  because  it  alleged  an  gable  waters. 

intent  to  "steal,  take,"  etc.,  instead  of  See  a  similar  statute  in  Connecticut 
"  to  feloniously  steal,  take,"  etc.,  in  ac-  relating  solely  to  public  property.  Conn, 
cordance  with  the  statutory  definition     Gen.  Stat.  (1888),  §§  1421,  1422. 

172  Volume  5. 


6143.  CONSPIRACY.  6145. 

(2)  Railroad  Tracks. 
Form  No.  6143.' 

(Comnfencing  as  in  Form  No.  6128,  and  continuing  down  to  *)  feloni- 
ously did  conspire  and  combine  to  take  up,  injure  and  destroy  a  cer- 
tain railroad  track  belonging  to  the  Illinois  Central  Railroad  Company, 
there  situate,  which  said  track  was  then  and  there  necessary  to  the 
free  use  of  said  railroad,  contrary  to  {concluding  as  in  Form  No.  6128). 

g.  Murder.' 

Form  No.  6144. 

(Ala.  Crim.  Code  (1886),  §4899,  No.  29.)' 

The  State  of  Alabama, )  ^.      ..         ^    nr      /  *.    „      on/y 
,^  ^  'V  Circuit  court,  March  term,  i897. 

Monroe  county.  \  '  ' 

The  grand  jury  of  said  county  charge  that,  before  the  finding  of 

this  indictment,  John  Doe  and  Samuel  Short  conspired   together  to 

unlawfully,  and  with  malice  aforethought,  kill  Richard  Roe,  against 

the  peace  and  dignity  of  the  State  of  Alabama. 

Daniel  Webster,  Solicitor  of  the  third  circuit. 

Form  No.  6145.^ 

Pulaski  Circuit  Court. 
The  State  of  Arkansas 
against 
John  Doe  and  Richard  Roe. 

The  grand  jury  of  Pulaski  county,  in  the  name  and  by  the  authori- 
ty of  the  state  of  Arkansas,  accuse  John  Doe  and  Richard  Roe  of  the 
crime  of  conspiracy,  committed  as  follows,  viz:  The  said  John  Doe 
and  Richard  Roe,  on  theyfr^/day  oi  June,  a.  d.  i897,  in  the  county 
aforesaid,  did  then  and  there  unlawfully  agree  and  conspire  together 
to  unlawfully  and  with  malice  aforethought  kill  and  murder  one  John 
White,  then  and  there  being  in  the  peace  of  the  state,  and  in  pursu- 
ance of  the  said  agreement  and  conspiracy,  and  as  an  advance  thereto,^ 
they,  the  said  John  Doe  and  Richard  Roe,  did  then  and  there  lie  in 
wait  for  the  said  John  White,  with  intent  to  kill  and  murder  him,  the 
said  Joh7i  White,  as  aforesaid,  which  said  murder  they,  the  said  John 
Doe  and  Richard  Roe,  did  not  then  and  there  commit,^  against  the 
peace  and  dignity  of  the  state  of  Arkansas. 

Daniel  Webster,  Prosecuting  Attorney. 

1.  Illinois.— StdLrr  &  C.  Anno.  Stat.  4.  ^r>&a«jaj.— Sand.  &  H,  Dig.  (1894), 
(1896),  c.  38,  55  187.  §  1506. 

2.  For  other  forms  of  indictment  for  5.  Under  the  statute,  the  conspirators 
conspiracy  to  commit  murder  see  Rex  must  make  some  advance  toward  com- 
V.  Glennan,  26  How.  St.  Tr.  438;  Rex  mitting  the  felony. 

V.  Dunn,  26  How.  St.  Tr.  839:  State  v.  6.  Under  the  Arkansas  statute  (Sand. 

Tom,  2  Dev.  L.  (13  N.  Car.)  569.  &  H.  Dig.  (1894),  §  1506),  a  conspiracy 

For  conspiracy  to  murder  unborn  in-  to   commit  a  felony  is   not   indictable 

fant.     Reg.  v.  Banks,  12  Cox  C.  C.  393.  after  the  felony  has   been  committed. 

8.  Alabama.  —  Crim.  Code  (1886),  §§  It  is  therefore  necessary  to  allege  in  the 

4007,  4008.  indictment  that  the  felony  which  the  de- 

173  Volume  5. 


6146.  CONSPIRACY.  6146. 

h.  Procuring  Defilement  of  Young  Female. 
Form  No.  6146. 

(Precedent  in  Reg.  v.  Mears,  4  Cox  C.  C.  425,  i  Eng.  L.  &  Eq.  581.)' 

Borough,  town  and  County  of  the  ) 

town  of  Southampton,  to  wit.        \ 

The  jurors  for  our  lady  the  Queen,  upon  their  oath  and  affirmation, 
present,  that  Mary  Ann  Mears,  late  of  the  parish  of  St.  Mary,  in  the 
town  and  county  of  the  town  aforesaid,  single  woman,  being  a  person 
of  wicked  and  depraved  mind  and  disposition,  and  contriving  and 
craftily  and  deceitfully  intending  to  debauch  and  corrupt  the  morals 
of  one  Johanna  Carroll,  as  hereinafter  mentioned,  and  to  seduce  her 
into  an  infamous  and  wicked  course  of  life,  heretofore,  and  after  the 
passing  of  a  certain  act  of  Parliament  for  the  better  preventing  the 
heinous  offense  of  procuring  the  defiling  of  women,  to  wit,  on  the  lJ^th 
day  of  November,  in  the  year  of  our  Lord  \%50,  with  force  and  arms, 
at  the  parish  aforesaid,  in  the  town  and  county  aforesaid,  did  know- 
ingly, deceitfully,  and  unlawfully  attempt  and  endeavor,  as  much  as 
in  her  lay,  to  procure  the  said  Johanna  Carroll  then  and  there  being  a 
child  under  the  age  of  twenty-one  years,  to  wit,  of  the  age  oi  fifteen 
years,  an  orphan,  and  a  servant  out  of  place,  to  have  illicit  carnal  con- 
nection with  a  man,  to  wit,  a  certain  man  whose  name  is  to  the  jurors 
aforesaid  unknown,  by  then  and  there  knowingly  and  unlawfully, 
falsely  and  fraudulently  pretending  and  representing  to  the  said 
Johanna  Carroll  that  she,  the  said  Mary  Ann  Mears,  was  the  friend  of 
the  sa\d  Johanna  Carroll,  and  knew  her  father  and  mother,  and  that 
if  she,  the  said  Johanna  Carroll,  would  go  home  with  her,  the  said 
Mary  Ann  Mears,  she  the  said  Mary  Ann  Mears  would  keep  her  until 

fendants  are  charged  with  conspiring  wit,  of  the  age  oi  fifteen  years,  to  have 

to  commit  was  not  committed.     Elsey  illicit  carnal  connection  with  a  man,  to 

V.  State,  47  Ark.  572.  wit,  with  a  certain  man  whose  name  is 

1.  It  was  held  in  this  case  that  the  to  the  jurors  aforesaid  unknown." 

prisoners  were  rightly  convicted  of  a  This  form,  while  charging  an  offense 

conspiracy  under  Stat.  12  &  13  Vict.,  at  common  law,  was  drawn  under  the 

c.  76,  and  that  they  might  have  been  in-  provisions  of  the  Criminal  Law  Amend- 

dicted  for  the  offense  at  common  law.  ment  act  (14  &  15  Vict.,  c.  100).     It  is 

Precedents.  —  For      indictments      for  unnecessary  to  state  any  venue  in  the 

similar  conspiracies   see  5  Cox   C.  C.  body  of  the  indictment,  the  venue  in 

Appendix  viii;  Rex  v.  Grey,  9  How.  St.  the  margin  being  sufficient.     Nor  is  it 

Tr.   127;  and  6   Cox  C.    C.    Appendix  necessary  to  allege  that  the  offense  was 

Ixxix,  where  the  indictment  is  as  fol-  committed  "with  force  and  arms"  or 

lows:  "against  the  peace."  To  adapt  the  form 

'^'Staffordshire,  )       The  jurors  for  our  to  American  practice,   the  venue  and 

to  wit.          )    Lady    the    Queen,  usual  conclusion  should  be  added, 

upon  their  oath  present  \.h.a.tfohn  Doe  Joinder  of  Cotints.  —  A  count  for  a  con- 

and  Richard  Roe,  on  the  first  day   of  spiracy  to  induce  a  female  to  have  illicit 

fune,  in  the  year  of  our  Lord  iSj-j,  did  criminal  intercourse  may  be  joined  with 

between     themselves    conspire,    com-  counts  charging  the  abduction  of  the 

bine,  confederate   and   agree   together  said  female  for  the  purpose  of  prostitu- 

wickedly,  knowingly  and  designedly,  lion  and  detaining  her  against  her  will 

to   procure,    by   false   pretenses,   false  in  a  house  of  prostitution,  although  the 

representations  and   other   fraudulent  former  offense  is  a  misdemeanor  and 

means,  one  fane  Grey,  then  being  a  girl  the  others  a  felony.    Herman  v.  People, 

under  the  age  of  twenty-one  years,  to  131  111.  564. 

174  Volume  5. 


6146.  CONSPIRACY.  6146. 

she,  the  said  Johanna  Carroll^  could  get  a  place,  and  that  she,  the  said 
Mary  Ami  Mears^  would  herself  try  all  she  could  to  get  her  a  place; 
and  by  then  and  there,  under  such  false  and  fraudulent  pretenses  and 
representations,  taking  her,  the  s>B\d  Johanna  Carroll^  to  the  home  of 
the  said  Mary  Ann  Mears,  and  keeping  her  there  for  a^long  space  of 
time,  and  soliciting  her  and  trying  to  induce  her  then  and  there  to 
have  illicit  carnal  connection  with  the  said  man;  whereas,  in  truth  and 
in  fact,  the  said  Mary  Ann  Mears  was  not  the  friend  of  the  s>^\6.  Jo- 
hanna Carroll^  and  the  said  Mary  Ann  Mears  did  not  intend  to  take, 
and  did  not  take,  the  said  Johanna  Carroll  home  with  her  to  keep  her, 
the  said  Johanna  Carroll,  till  she,  the  said  Johanna  Carroll,  could  get  a 
place,  or  till  she,  the  said  Mary  Ann  Mears,  could  obtain  a  place  for 
her,  but  craftily  and  subtly,  with  the  wicked  design  and  purpose,  by 
the  said  false  and  fraudulent  pretenses,  representations,  and  means 
aforesaid,  to  procure  the  said  Johanna  Carroll  to  have  connection  with 
a  man  as  aforesaid,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  of  our  lady  the  Queen,  her 
crown  and  dignity.  And  the  jurors  aforesaid,  upon  their  oath  and 
affirmation  aforesaid,  do  further  present  that  Amelia  Chalk,  late  of  the 
parish  aforesaid,  in  the  town  and  county  aforesaid,  laborer,  at  the  time 
of  the  committing  of  the  said  misdemeanor  by  the  said  Mary  Ann 
Mears  as  aforesaid,  to  wit,  on  the  day  and  year  aforesaid,  at  the  parish 
aforesaid,  in  the  town  and  county  aforesaid,  the  said  Mary  Ann  Mears 
to  do  and  commit  the  said  misdemeanor  wickedly,  knowingly,  and  un- 
lawfully did  aid,  abet,  and  assist,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  of  our  lady  the 
Queen,  her  crown  and  dignity.  And  the  jurors  aforesaid,  upon  their 
oaths  and  affirmation  aforesaid,  do  further  present,  that  the  said  Mary 
Ann  Mears  and  the  said  Amelia  Chalk,  afterwards,  to  wit,  on  the  said  IJfth 
day  of  November,  in  the  year  aforesaid,  with  force  and  arms,  at  the 
parish  aforesaid,  in  the  town  and  county  aforesaid,  knowingly,  wick- 
edly, and  unlawfully,  did,  by  false  pretenses,  false  representations,  and 
other  fraudulent  means,  attempt  to  procure  the  said  Johanna  Carroll, 
then  and  there  being  a  child  under  the  age  of  twenty-one  years,  to 
wit,  of  the  age  oi  fifteen  years,  to  have  illicit  carnal  connection  with 
a  man,  to  wit,  a  certain  man  whose  name  is  to  the  jurors  aforesaid 
unknown,  contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  of  our  lady  the  Queen,  her  crown 
and  dignity.  And  the  jurors  aforesaid,  upon  their  oath  and  affirma- 
tion aforesaid,  do  further  present,  that  the  said  Mary  Ann  Mears  and 
the  said  Amelia  Chalk  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, with  force  and  arms,  at  the  parish  aforesaid,  in  the  town  and 
county  aforesaid,  did,  between  themselves,  conspire,  combine,  con- 
federate, and  agree  together,  wickedly,  knowingly  and  designedly,  to 
procure  by  false  pretenses,  false  representations,  and  other  fraudulent 
means,  the  said  Johanna  Carroll,  then  being  a  poor  child  under  the  age 
of  twenty-one  years,  to  wit,  of  the  age  oi  fifteen  yt.ax%,  to  have  illicit 
carnal  connection  with  a  man,  to  wit,  a  certain  man  whose  name  is  to 
the  jurors  aforesaid  unknown,  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  of  our  lady  the 
Queen,  her  crown  and  dignity. 

175  Volume  5. 


6147.  CONSPIRACY.  6147 

i.  Procuring  Elopement  of  a  Minor  Daughter. 
Form  No.  6147.' 

{Commencing  as  in  Form  No.  613Jf,  and  continuing  down  to  *)  that  at 
the  time  of  the  commission  of  the  several  grievances  hereinafter 
mentioned  and  for  a  long  time  before,  at  said  county,  one  /ane  M. 
Nevin,  a  daughter  of  David  Nevin  and  Maria,  his  wife,  of  said  county, 
was  a  minor  under  the  age  of  twenty-one  years,  and  was  dwelling 
and  residing  in  the  family  of  her  said  father,  and  under  his  paternal 
care,  guardianship,  protection,  instruction,  control,  authority,  and 
employment.  And  the  said  jurors  on  their  said  oaths  and  affirma- 
tions, do  further  present,  that  Joseph  Mifflin,  late  of  the  said  county, 
yeoman,  Robert  C.  Hays,  late  of  said  county,  physician,  and  David H. 
Culbertson,  late  of  said  county,  yeoman,  being  persons  of  evil  minds 
and  dispositions,  together  with  divers  other  evil-disposed  persons  to 
the  jurors  aforesaid  unknown,  on  the  eighth  day  ol  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  forty-three,  at  the 
county  aforesaid,  with  force  and  arms,  etc.,  unlawfully,  wickedly, 
falsely,  maliciously,  and  injuriously  did  conspire,  combine,  confeder- 
ate, and  agree  together  to  cause,  effect,  produce,  and  procure  the 
elopement  and  escape  of  the  said  Jane  M.  Nevin  from  the  house, 
family,  guardianship,  protection,  control,  care,  authority,  and  employ- 
ment of  her  said  father,  the  said  David  Nevin,  without  the  consent  of 
hersaidfather,  and  against  his  will;  and  in  pursuance  and  furtherance, 
and  according  to  the  said  conspiracy,  combination,  confederacy,  and 
agreement  between  them,  the  sdiid  Joseph  Mifflin,  Robert  C.  Hays  and 
David  H.  Culbertson,  as  aforesaid  had,  did,  on  the  night  between  the 
tenth  and  eleventh  days  of  June,  in  the  year  aforesaid,  at  said  county, 
entice,  persuade,  cause,  procure  and  assist  the  said  jane  M.  Nevin  to 
elope,  escape,  and  depart  from  her  said  father's,  the  said  David  Nevin' s, 
house,  family,  care,  guardianship,  protection,  authority,  control, 
and  employment,  secretly,  covertly,  and  without  his  leave,  con- 
sent, or  approbation,  and  against  his  will,  the  szx^  Jane  M.  Nevin 
then  and  there  still  being  a  minor  under  the  age  of  twenty-one  years; 
to  the  great  damage  of  the  said  David  Nevin,  and  of  his  said  minor 
daughter,  to  the  evil  example  of  all  others  in  the  like  case  offend- 
ing, and  against  the  peace  and  dignity  of  the  commonwealth  of 
Pennsylvania. 

And  the  jurors  aforesaid,  upon  their  oaths  and  affirmations  aforesaid, 
do  further  present,  that  the  said  Joseph  Mifflin,  Robert  C.  Hays  and  Da- 
vid H.  Culbertson,  together  with  divers  persons  to  the  jurors  aforesaid 
unknown,  being  persons  of  evil  minds  and  dispositions,  afterwards,  to 
wit,  on  the  day  and  year  aforesaid,  at  the  county  aforesaid,  with  force 
and  arms,  etc.,  unlawfully,  wickedly,  deceitfully,  maliciously,  and  in- 
juriously did  conspire,  combine,  confederate  and  agree  together  to 
cause,  induce,  persuade  and  procure  the  said  Jane  M.  Nevin,  the  said 
Jane  M.  Nevin  then  and  there  being  a  minor  under  the  age  of  twenty- 
one  years,  and  dwelling  and  residing  in  the  house  and  family  of  her 

1.  This  form,  given  in  Whart.  Prec,     Mifflin  v.  Com.,   5  W.  &  S.  (Pa.)  461. 
(2d  ed.),  p.  4S9,  is  the  indictment  which     For  a  similar  indictment  see  Respublica 
was  sustained  on  error  by  the  supreme     v.  Hevice,  2  Yeates  (Pa.)  114 
court   of   Pennsylvania   in    the    case  of 

176  Volume  5. 


6148.  CONSPIRACY.        -  6148. 

father,  David  Nevin,  and  under  his  paternal  care,  guardianship,  pro- 
tection, control  and  authority,  to  escape,  elope  and  depart  from  her 
said  father's  house,  family,  care,  guardianship,  protection,  and  con- 
trol, without  her  said  father's  consent,  and  against  his  will,  with  the 
view,  purpose  and  intent  that  she,  the  said  Jane  M.  Nevin,  might  be 
joined  in  marriage  with  one  Charles  M.  Reynolds,  without  the  consent 
and  approbation  and  against  the  wish  and  will  of  the  said  David 
Nevin,  and  in  violation  of  his  lawful  and  parental  rights  and  authority. 
And  the  jurors  aforesaid,  on  their  oaths  and  affirmations  aforesaid, 
do  further  present,  that  the  said  Joseph  Mifflin,  Robert  C.  Hays 
and  David  H.  Culbertson,  with  the  said  other  persons  unknown,  in 
pursuance  and  furtherance  of  and  according  to  the  said  conspiracy, 
combination,  confederacy  and  agreement  between  them,  the  said 
Joseph  Mifflin,  Robert  C.  Hays  and  David  H.  Culbertson,  as  aforesaid 
had,  did,  on  the  night  between  the  tenth  and  eleventh  days  oi  June,  in 
the  year  aforesaid,  about  the  hour  of  one  o'clock,  at  Shippensbury ,  in 
said  county,  and  within  the  jurisdiction  of  this  court,  wickedly, 
falsely,  maliciously,  unlawfully  and  injuriously  entice,  persuade,  cause, 
procure,  aid,  and  assist  the  said  Jane  M.  Nevin  to  elope,  escape  and  de- 
part from  her  said  father's  house,  family,  care,  guardianship,  protection, 
control  and  authority,  in  the  company  and  along  with  the  said  Charles 
M.  Reynolds,  and  secretly  and  without  the  knowledge,  approbation, 
and  consent,  and  against  the  will  of  the  said  David  Nevin,  with  the 
view,  purpose  and  intent  that  she,  the  said  Jane  M.  Nevin,  should  be 
joined  in  marriage  with  the  said  Charles  M.  Reynolds,  without  the 
consent  and  against  the  will  of  her  said  father;  and  with  the  same 
intent  and  purpose,  and  in  furtherance  of  and  according  to  the  said 
conspiracy,  combination,  confederacy  and  agreement,  the  said  Joseph 
Mifflin,  Robert  C.  Hays  and  David  H.  Culbertson  and  other  persons 
unknown,  then  and  there  did  aid,  assist,  abet  and  co-operate  with 
the  said  Jane  M.  Nevin  and  Charles  M.  Reynolds,  secretly  and 
covertly  to  carry  away  and  remove  a  large  quantity  of  clothing, 
goods  and  chattels  of  the  said  David  Nevin,  and  to  place  the  said 
Jane  M.  Nevin  and  the  said  goods,  chattels  and  clothing  within  and 
•upon  a  certain  railroad  car  then  and  there  passing,  so  that  the  said 
Jane  M.  Nevin  might  be  swiftly  and  secretly  conveyed  and  carried 
away  and  transported  beyond  the  pursuit  and  protection  of  her  said 
father,  with  the  intent,  view  and  purpose  aforesaid ;  to  the  great  dam- 
age of  the  said  David  Nevin,  to  the  evil  {concluding  as  in  Form  No. 
6134). 

j.  Procuring  Marriage  Falsely  to  Appear  of  Record. 

Form  No.  6148. 

(Precedent  in  Com.  v.  Waterman,  122  Mass.  44.)' 

\Commonwealth  of  Massachusetts,  \  At  the  Superior  Court  begun 

County  of  Suffolk.  f  ^^'        and  holden  at  Boston,  within 

and  for  the  county  of  Suffolk,  on  the  second  Monday  of  September,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- six. Y' 

1.  This  indictment  was  held  to  suffi-    be  found  in  the  reported  case,  but  have 
dently  charge  an  indictable  offense.  been  added  to  render  the  form  com- 

S.  The  words  enclosed  by  [  ]  will  not    plete. 

5  E.  of  F.  P.  — 12.  177  Volume  5. 


6148.  COMSPIRACY.  6148. 

The  jurors  for  the  cotnviomvealth  of  Massachusetts^  on  their  oath 
present,  that  Edgar  R.  Butterworth,  Maud  M.  Waterman,  Lizzie 
Douglass,  Henry  M.  Ingraham  and  Aloses  S.  Marshall,  all  of  said  Bos- 
ton, on  the  sixteenth  day  of  March,  in  the  year  one  thousand  eight 
hundred  and  seventy-five,  at  Boston,  aforesaid,  with  wicked  intent  to 
cause  it  falsely  to  appear  of  record  that  one  Roderick  D.  Richardson 
was  lawfully  married  to  said  Maud,  and  with  intent  to  injure  said 
Richardson  thereby,  and  to  prevent  said  Richardson  (he,  said  Richard- 
son, then  and  ever  since  being  an  unmarried  man)  from  contracting 
any  marriage,  except  with  said  Maud,  and  with  intent  to  cheat  and 
defraud,  unlawfully  and  wickedly  did  combine,  conspire,  confederate 
and  agree  together  that  said  Marshall  should  then  and  there  apply  in 
person  to  Nicholas  A.  Apollonio,  the  registrar  of  births,  deaths  and 
marriages,  duly  appointed  and  qualified,  in  said  city  oi Boston,to  record 
all  facts  concerning  marriages,  and  should  falsely  represent  to  said 
registrar  that  he,  said  Marshall,  was  said  Roderick  D.  Richardson  (said 
Richardson  then  being  a  citizen  of  said  Boston,  other  than  said  Mar- 
shall), and  should,  in  the  office  of  said  registrar  in  said  Boston,  give 
notice,  and  state  that  said  Richardson  and  said  Maud  were  both  then 
residents  of  said  Boston,  and  that  said  Richardson  and  Maud  then  in- 
tended shortly  to  be  joined  in  marriage  at  said  Boston,  and  should 
request  and  obtain  from  said  registrar  the  certificate  of  said  notice 
in  such  case  required  by  law  to  be  given  by  said  registrar;  that  there- 
after at  said  Boston,  said  Butterworth  (he,  said  Butterworth,  being  then 
and  there  a  justice  of  the  peace  for  said  county  oi  Suffolk,  duly  com- 
missioned and  qualified)  should  falsely,  and  before,  and  without  any 
marriage  between  said  Maud  and  said  Richardson,  with  a  certain 
certificate  and  writing  under  the  hand  of  and  signed  by  him,  the  said 
Butterworth,  as  such  justice,  purporting  to  be  a  copy  of  a  truthful 
and  genuine  record  of  a  marriage,  therein  falsely  alleged  to  have 
been  solemnized  by  said  Butterworth,  as  such  justice  at  said  Boston, 
between  said  Richardson  and  said  Maud,  pursuant  to  said  notice,  and 
said  certificate  to  be  obtained  from  said  registrar  in  manner  and  form 
as  aforesaid ;  and  that  said  Douglass  and  Ingraham  should  thereupon 
falsely  and  publicly  pretend  to  have  been  present  at  such  marriage* 
as  witnesses  thereto;  and  that  said  Maud  should  thereupon,  without 
the  knowledge  of  said  Richardson,  cause  to  be  delivered  such  copy  of 
record  of  marriage  (signed  by  said  Butterworth  as  aforesaid)  to  said 
registrar,  at  his  said  office,  for  record,  as  and  for  a  true  and  genuine 
copy  of  a  truthful  and  genuine  record  of  marriage,  and  that  thereafter 
said  Maud  should  publicly  assume  to  be  the  wife  of  said  Richardson, 
and  that  the  said  Butter-worth,  Douglass,  Ingraharn  and  Marshall 
should  declare  such  assumption  to  be  just  and  true  within  their 
own  knowledge;  and  the  jurors  aforesaid,  upon  their  oath  aforesaid, 
do  further  present  that  then  and  there,  in  pursuance  of  said  conspiracy 
and  agreement,  said  Marshall  did  then  and  there  apply  to  said  regis- 
trar, and  give  said  notice,  and  then  and  there  pretend  to  be  said 
Richardson,  and  did  then  and  there  receive  such  certificate  of  said 
notice  from  said  registrar;  and  said  Butterworth  did  thereafter,  to  wit, 
on  said  day,  at  ^2^6.  Boston,  as  such  justice,  write  and  sign  such  false 
copy  of  record  as  and  for  a  true  certificate  and  copy  of  a  truthful  record 

178  Volume  5. 


6149.  CONSPIRACY.  -  6149. 

of  marriage,  and  said  Douglass  and  Ingraham  did  then  and  there  pub- 
licly declare  themselves  to  have  been  witnesses  of  such  marriage,  and 
said  Maud  did  thereafter  cause  said  writing,  signed  by  said  Butter- 
worthy  to  be  duly  entered  and  recorded  in  the  office  of  said  registrar, 
zX  %dJ\A  Boston;  and  said  il/a«a'  did  thereafter  publicly  say  and  aver 
falsely,  that  she,  said  Maud,  was  the  lawful  wife  of  said  Richardson, 
and  said  Butterworth,  Douglass,  Ingraham  and  Marshall  did  declare 
the  same  to  be  true  as  of  their  own  knowledge. 

Whereas,  in  truth  and  in  fact,  said  Marshall  then  and  there  was  not 
said  Roderick  D.  Richardson,  but  said  Richardson^ a.s  a  man  other  than 
said  Marshall;  and  said  Roderick  did  not  then  and  there,  nor  did  he 
at  any  time,  intend  to  be  joined  in  marriage  with  said  Maud;  nor  did 
said  Richardson  desire  said  notice  to  be  given  to  said  registrar  by  said 
Marshall,  or  by  any  other  person,  or  by  himself,  said  Richardson;  nor 
did  he,  said  Richardson,  at  any  time  before  said  notice  was  given  as 
aforesaid,  know  that  the  same  was  to  be  given;  and  whereas,  in  truth 
and  fact,  said  Richardson  was  never  joined  in  marriage  by  said  Butter- 
worth  to  said  Maud,  nor  was  he,  said  Richardson,  ever  married  to  any 
person  whomsoever,  nor  was  there  any  truthful  record  of  any  mar- 
riage between  said  Maud  a.nd.  said  Richardson,  all  of  which  said  But- 
terworth,  Douglass,  Waterman,  Ingraham  and  Marshall dit  the  time  they 
so  combined,  confederated  and  agreed  together,  and  at  the  time  they 
committed  the  acts  hereinbefore  set  forth,  then  and  there  all  well  knew. 
And  so  the  jurors  aforesaid,  upon  their  oaths  aforesaid,  do  say  that 
said  Butterworth,  Marshall,  Ingraham,  Douglass  and  Waterman,  at  said 
Boston,  on  said  sixteenth  of  March,  did  unlawfully  combine,  conspire, 
confederate  and  agree  together,  by  the  means  and  in  form  aforesaid, 
to  cause  said  Richardson  falsely  to  appear  of  record  to  be  married  to 
said  Maud,  against  the  law,  peace  and  dignity  of  said  comtnonwealth. 

[W.  C.  Boring,  District  Attorney.]^ 

k.  Robbery. 
Form  No.  6149. 

(Precedent  in  Landringham  v.  State,  49  Ind.  187.)* 
[In  the  Marion  Criminal  Circuit  Court  of  Indiana,  of  the  June  Term, 
1874. 

State  of  Itidiana 

against 

Jafnes  landringham.'^ 

The  grand  jurors  for  the  county  of  Marion,  and  State  of  Indiana, 
upon  their  oath  present  that  Ja7nes  Landringham  on  the  12th  day  of 
November,  a.  d.  i874,  at  and  in  the  county  of  Marion,  and  State  afore- 
said, did  unlawfully  and  feloniously  unite,  combine,  and  conspire  with 

1.  The  words  and  figures  enclosed  by  gether  to  unlawfully  take  one  thousand 
[  ]  are  not  in  the  reported  case,  but  have  dollars  in  money,  the  property  oi Julius 
been  added  to  render  the  form  complete.  C.    Hudspeth,    from    his    person,    and 

2.  This  form  is  sufficient  under  Horn-  against  his  will,  by  violence  to  his  per- 
er's  Stat.  Ind.  (1896),  §  2139.  son,  or  by  putting  him  in  such  fear  as 

Under  the  Alabama  statutes,  an  in-  unwillingly  to  part  with  the  same." 
dictment  was  held  good  which  charged  Thompson  v.  State,  106  Ala.  67,  9  Am. 
that    the    defendants    "  conspired    to-     Cr.  Rep.  199. 

179  Volume  5. 


6150.  CONSPIRACY.  6150. 

Thomas  King,  for  the  purpose  of  making  an  assault  upon  one  Thomas 
J.  Barlow,  and  for  the  purpose  and  with  the  intent  then  and  there 
of  feloniously  and  forcibly  taking  from  the  person  of  the  said  Barlow 
[by  violence,  and  putting  in  fear  the  said  Barlou>Y  ten  United  States 
treasury  notes,  of  the  denomination  of  ten  dollars  each  and  of  the 
value  of  ten  dollars  each  {and  other  notes,  describing  theni),  all  of  said 
notes  being  the  personal  goods  of  said  Barlow,  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  State  of  Indiana. 

[y.  M.  Cropsey,  Prosecuting  Attorney.]'^ 

Form  No.  6150. 

(Precedent  in  People  v.  Richards,  67  Cal.  412,  6  Am.  Cr.  L.  Rep.  42.)^ 

In  the  Superior  Court  [of  the  county  of  Santa  Clara,  State  of  Cali- 
fornia, Monday,  the  seventh  day  oi  February,  i885. 
The  People  of  the  State  of  California  ] 

against  V  Information.  ]2 

John  Richards.  \ 

John  Richards  is  accused  by  the  ciistrict  attorney  of  the  county  of 
Santa  Clara,  State  of  California,  by  this  information,  of  conspiracy, 
committed  as  follows: 

The  said  John  Richards,  on  or  about  the  9th  day  of  September,  a.  d. 
\?>8Jf.,  at  the  county  and  state  aforesaid,  did  conspire  with  one  David 
Davis,  feloniously  and  by  means  of  force  and  fear  to  take  certain 
bank  checks  to  and  of  the  value  of  ^15,000  from  the  person  and 
immediate  presence  of  one  Henry  Miller,  the  owner  thereof,  against 
the  will  of  the  sddd  Henry  Miller;'^  and  immediately  theretofore,  and 
for  the  purpose  of  said  taking,  to  compel  said  Henry  Miller,  by  means 
of  force  and  fear,  to  draw,  make,  and  sign  said  checks;  and  said 
defendant  in  pursuance  of  said  conspiracy,  and  to  effect  the  object 
thereof,  did  on  or  about  the  date  last  named,  proceed  from  the  town 
of  Hollister,  in  the  county  of  San  Benito,  State  of  California,  to  the 
city  of  Gilroy,  in  the  county  of  Santa  Clara,  in   said   State,  and  did 

1.  The  words  enclosed  by  []  were  not  void.  Landringham  v.  State,  49  Ind. 
in  the  precedent,  which  on  that  account  186;  Scudder  t'.  State,  62  Ind.  13;  Mil- 
was  held  insufficient.  In  accordance  ler  v.  State,  79  Ind.  198. 
with  the  terms  of  the  statute  defining  2.  The  words  and  figures  enclosed  by 
robbery,  the  indictment  should  have  [  ]  will  not  be  found  in  the  reported 
used  the  words  "by  violence"  or  case,  but  have  been  added  to  render  the 
"putting  in  fear."   And  an  indictment  form  complete. 

under  the  Indiana  statute  must  describe  3.  The  superior  court  sustained  a 
the  particular  felony  intended  to  be  demurrer  to  this  information  on  the 
committed  with  the  same  substantial  ground  that  there  must  be  two  persons 
accuracy  as  would  be  necessary  in  an  at  least  joined  as  defendants,  but  on 
indictment  for  such  felony.  Landring-  appeal  the  supreme  court  after  a  full 
ham  V.  State,  49  Ind.  186;  State  v.  Mc-  review  of  the  authorities  reversed  the 
Kinstry,  50  Ind.  465;  Scudder  v.  State,  judgment  and  remanded  the  cause  with 
62  Ind.  13;  Miller  v.  State,  79  Ind.  198;  direction  to  the  court  below  to  over- 
Smith  V.  State,  93  Ind   67.  rule    the    demurrer    and    require    the 

The   proviso   formerly  contained   in  defendant  to  plead  to  the  indictment, 

the  act  that  it  should  not  be  necessary  4.  The  language  of  the  statute  defin- 

to  charge  the  particular  felony  intended  ing  robbery  is  here  used.    See  Cal.  Pen. 

to  be  committed  is  unconstitutional  and  Code  (1897),  §  211. 

180  Volume  5. 


6151.  CONSPIRACY.  6151. 

arm  and  disguise  himself,  and  on  the  ISth  of  September,  i8(?4,  did  set 
forth  from  said  city  of  Gilroy  along  the  road  leading  therefrom  to 
the  certain  place  in  the  county  last  aforesaid,  known  as  Paeheco  Pass, 
there  to  lie  in  wait  for  said  Henry  Miller,  and  consummate  the  pur- 
pose of  the  said  conspiracy,  contrary  to  the  form,  force,  and  effect 
of  the  statute  in  such  cases  made  and  provided,  and  against  the 
peace  and  dignity  of  the  people  of  the  State  of  California. 

[J.  H.  Campbell,  District  Attorney. ]i 

L  Seduction  by  Sham  Marriage.^ 

Form  No.  6 1 5 1 . 

(Precedent  in  State  v.  Savoye,  48  Iowa  562.)' 

[District  Court  of  the  County  of  Allamakee. 
The  State  of  Iowa 

against 

Charles  Savoye  and 

Conrad  A  mold.  Y" 

The  jurors  of  the  grand  jury  of  the  State  of  Iowa  within  and  for 
said  county  of  Allamakee,  legally  convoked,  impaneled,  tried,  sworn 
and  charged,  in  the  name  and  by  the  authority  of  the  State  of  lotua, 
upon  their  oaths  do  aver,  find  and  present  that  Charles  Savoye  and 
Conrad  Arnold,  at  and  within  said  county,  on  or  about  the  15th  day 
of  August,  i875,  with  force  and  arms  unlawfully,  wickedly,  deceitfully, 
maliciously  and  injuriously,  did  conspire,  combine,  confederate  and 
agree  together,  to  cause,  induce,  persuade  and  procure  one  Mary 
Ellen  Elizabeth  Stielsmith,^  commonly  known  as  Elizabeth  or  lizy 
Stielsmith,  she  the  said  Lizy  Stielsmith  then  and  there  being  a  minor 
under  the  age  of  twenty-one  years,  to  wit,  nineteen  years  old,  to  go 
with  them,  the  said  Charles  Savoye  and  Conrad  Arnold,  with  the  view, 
purpose  and  intent,  with  the  intention  of  bringing  about  a  sham 
marriage  or  pretended  marriage  between  her,  the  said  Lizy  Stielsmith^ 
and  him,  the  said  Charles  Savoye,  and  thus  bring  about  the  seduction 
of  her,  the  said  Lizy  Stielsmith,  in  violation  of  law.* 

[y.  F.  Mcjunkin, 
County  Attorney  of  Allamakee  County.]^ 

1.  The  words  enclosed  by  [  ]  will  not  of  the  conspirators  to  be  authorized  to 
be  found  in  the  reported  case,  but  have  celebrate  the  marriage,  who  actually 
been  added  to  render  the  form  com-  performed  the  ceremony,  in  conse- 
plete.  quence  of  all  of  which  the  daughter 

2.  Sufficient  Indictments.  — An  indict-  and  her  parents  were  deceived,  and 
ment  is  unobjectionable  both  in  form  she  cohabited  with  her  pretended  hus- 
and  substance  which  alleges  a  conspira-  band.  State  v.  Murphy,  6  Ala.  765. 
cy  falsely  and  fraudulently  to  seduce  3.  This  indictment  was  held  to  suffi- 
from  her  virtue  and  carnally  to  know  ciently  charge  a  conspiracy  to  commit 
an  unmarried  female  by  procuring  the  a  crime. 

consent  of  herself  and  parents  to  her  4.  Previous  Character  of  Woman. —  It 

marriage  with  one  of  the  conspirators,  was  held  in  this  case   unnecessary   to 

and  then,  in  furtherance  of  such  con-  charge  that  the  woman  was  unmarried 

spiracy,  producing  a  forged  license,  as-  and  of  a  previously  chaste  character, 

suring  them  of  its  genuineness,  falsely  5.  Accomplishment  of  Purpose,  —  This 

and  fraudulently  representing  another  indictment   contained    another   count, 

181  Volume  5. 


6152.  CONSPIRACY.  6152. 

m.  Soliciting  Bribes.  > 
Form  No.  6152. 
(Precedent  in  Com.  v.  Smith,  163  Mass.  413.)^ 
[(^Commencing  as  m  Form  No.  6121,  and  continuing  down  to  *)]3  *  *  * 
And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further 
present  that  Horace  I.  Finkham,  Charles  If.  Cox,  Fred  H.  Cate,  George 
O.  Tilton,  Williatn  W.  Ham,  Charles  H.  Croy,  and  Hadley  H.  Hoyt,  all 
of  Haverhill  in  said  county  of  Essex,  at  Hat^erhill  in  said  county  of 
Essex,  on  the  Tuesday  next  after  X\\&  first  Monday  of  December  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-three,  to  wit,  on 
tht  fifth  day  of  December  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-three,  said  fifth  day  of  December  being  the  day 
of  the  annual  municipal  election  of  the  city  of  Haverhill,  a  municipal 
corporation  duly  established  by  law  and  located  within  said  county  of 
Essex,  were  severally  duly  elected  by  the  qualified  voters  of  the  city 
at  large,  voting  in  their  respective  wards,  as  aldermen  of  said  city, 
to  severally  hold  their  said  offices  as  aldermen  for  one  year  from  the 
first  Monday  of  January  next  following  the  said  fifth  day  of  December 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-three, 
and  until  a  majority  of  the  new  board  should  be  elected  and  qualified 
in  their  places,  said  first  Monday  of  January  being  the  first  day  of 
January  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-four,  the  said  Horace  I.  Finkham  being  then  and  there  at  said 
annual  municipal  election  chosen  from  and  by  the  qualified  voters  of 
the  city  at  large,  the  said  Charles  H.  Cox  being  then  and  there  at  said 
annual  municipal  election  selected  from  the  _/fr.f^  ward  of  said  city, 
the  said  Fred  H.  Cate  being  then  and  there  at  said  annual  municipal 
election  selected  from  the  second  ward  of  said  city,  the  said  George  O. 
Tilton  being  then  and  there  at  said  annual  municipal  election  selected 
from  the  third  y^zxA  of  said  city,  the  said  William  W.  Ham  being  then 
and  there  at  said  annual  municipal  election  selected  from  the  fourth 
ward  of  said  city,  the  said  Charles  H.  Croy  being  then  and  there  at 
said  annual  municipal  election  selected  from  the  y?/"//?  ward  of  said 
city,  and  the  said  Hadley  H.  Hoyt  being  then  and  there  at  said  annual 
municipal  election  selected  from  the  sixth  ward  of  said  city,  and  that 
the  said  Horace  I.  Finkham,  Charles  H.  Cox,  Fred  H.  Cate,  George  O. 
Tilton,  Williain  W.  Ham,  Charles  H.  Croy,  and  Hadley  H.  Hoyt  there- 
after, to  wit,  on  the  said  first  day  oi  January  in  the  year  last  afore- 
said, severally  duly  qualified  as  such  aldermen,  and  then  and  there 
severally  became  and  were  municipal  officers,  to  wit,  aldermen  of  said 
city  of  Haverhill,  and  thenceforward  severally  continued  to  be  muni- 
cipal officers,  to  wit,  aldermen  of  said  city  of  Haverhill,  until  the  day 

alleging  the  accomplishment  of  the  ob-  sufficient  see  Shircliff  v.  State,  96  Ind. 

ject   of    the    conspiracy   in   pursuance  369. 

thereof,  but  this  count  is  omitted  in  the  2.  This  is  the  second  count  of  the  in- 

text,  as  the  court  held  that  it  was  im-  dictment,  on  which  the  defendants  were 

material    on    an    indictment    for   con-  properly  convicted. 

spiracy  whether  the  object  intended  be  3.  The  matter  to  be  supplied  within 

accomplished  or  not.  the  [  ]  and  the  first  and  third  counts  of 

1.  Bribery.  —  For    indictment    for     a  the  indictment  are  not  set  out  in  the 

conspiracy     to    commit     bribery    held  reported  case. 

182  Volume  5. 


6152.  CONSPIRACY.  6152. 

of  the  finding  of  this  indictment;  and  that  at  the  said  annual  muni- 
cipal election  of  said  city  of  Haverhill,  holden  on  the  said  fifth  day 
of  December  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-three,  at  said  Haverhill,  the  legal  voters  of  said  city  of  Haver- 
hill duly  voted  to  authorize  the  granting  of  licenses  for  the  sale  of 
intoxicating  liquors  in  said  city  of  Haverhill  for  the  year  commencing 
on  t\it  first  day  of  May  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-four,  by  then  and  there  at  said  annual  municipal 
election  duly  and  by  lawful  majority  vote,  voting  "Yes"  upon  the 
question,  "  Shall  licenses  be  granted  for  the  sale  of  intoxicating 
liquors  in  this  city? "  the  warrant  for  said  annual  municipal  election 
duly  containing  an  article  providing  for  a  vote  upon  said  question, 
whereby  the  mayor  and  aldermen  of  said  city  of  Haverhill,  duly 
elected  and  qualified,  and  holding  their  offices  for  one  year  from  the 
first  Monday  of  January  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-four,  and  until  a  majority  of  the  new  board  should 
be  elected  and  qualified  in  their  places,  might  lawfully  grant  licenses 
of  the  first  five  classes  for  the  sale  of  intoxicating  liquors  for  the  year 
commencing  on  the  first  day  of  May  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-four. 

And  the  jurors  aforesaid,  on  their  oath  aforesaid,  do  further  pre- 
sent that  Fred  M.  Smith,  of  Boston  in  the  county  of  Suffolk  and  said 
Commomaealth,  Charles  A.  Kimball,  Fred  H.  Cate,  George  O.  Tilton, 
William  W.  Ham,  and  Hadley  H.  Hoyt,  all  of  said  Haverhill,  in  said 
county  of  Essex,  did,  at  said  Haverhill,  on  the  first  day  of  February, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-four, 
then  and  there  well  knowing  the  premises,  unlawfully  and  maliciously 
conspire,  combine,  confederate,  and  agree  together,  and  with  divers 
other  persons  whose  names  to  the  jurors  are  unknown,  to  unlawfully 
counsel,  solicit,  incite,  and  procure  divers  persons  who  should  there- 
after duly  make  applications  to  said  mayor  and  aldermen  of  said  city 
of  Haverhill  for  licenses  of  any  of  the  first  five  classes  to  sell  intoxi- 
cating liquors  in  said  Haverhill,  for  the  year  commencing  on  t\v^  first 
day  of  May  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-four,  and  whose  names  and  a  further  description  of  whom  are 
to  the  jurors  unknown,  unlawfully  and  corruptly  severally  to  give 
gifts  and  gratuities,  to  wit,  certain  sums  of  money,  the  amount,  value, 
and  further  descriptions  of  which  said  sums  of  money  are  to  the  jurors 
unknown,  to  the  said  Fred  H.  Cate,  George  O.  Tilton,  Williatn  IV. 
Ham,  and  Hadley  H.  Hoyt,  they  then  and  there  being  aldermen  of 
said  city  of  Haverhill  as  aforesaid,  the  said  applications  for  licenses 
to  sell  intoxicating  liquors  being  then  and  there  matters  which  might 
by  law  thereafter  come  and  be  brought  before  them,  the  said  Fred 
H.  Cate,  George  O.  Tilton,  William  W.  Ham,  and  Hadley  H.  Hoyt,  in 
their  ofiicial  capacities  of  aldermen  as  aforesaid,  with  intent  on  the 
part  of  said  divers  persons  who  should  make  applications  for  licenses 
as  aforesaid  then  and  there,  by  the  gifts  and  gratuities  aforesaid,  to 
influence  the  acts,  votes,  opinions,  decisions  and  judgments  of  the 
said  Fred  H.  Cate,  George  O.  Tilton,  William  W.  Ham,  and  Hadley  H. 
Hoyt,  in  their  official  capacities  of  aldermen  as  aforesaid,  upon  the 
said   applications    for   licenses   to  sell  intoxicating   liquors  in  said 

183  Volume  5. 


6153. 


CONSPIRACY. 


6153. 


Haverhill  thereafter  to  be  duly  made  as  aforesaid,  against  the  peace 
of  said  Commonwealth  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided. 

[  W.  H.  Moody,  District  Attorney.  ] 

4.  To  Hinder  Trade  or  Commerce.^ 

a.  By  Formation  of  Trust. 

Form  No.  6153. 

(Precedent  in  Hathaway  v.  State,  (Tex.  Crim.  App.  1896)  36  S.  W.  Rep.  465.)* 

[In  the  Name  and  by  the  Authority  of  the  State  of  Texas. 

The   grand   jurors  for  the  county  of  McLennan.,  state  aforesaid, 
duly  organized  as  such  at  the term,  a.  d.  i896,  of  the  District 


1.  For  statutes  making  it  a  misde- 
meanor to  conspire  to  commit  any  act 
injurious  to  trade  or  commerce  see  as 
follows: 

California.  —  Pen.  Code  (1887),  §  182. 

Florida.  —  Rev.  Stat.  (1892),  §  2593. 

Idaho.— Rev.  Stat.  (1887),  §  6540. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896).  c.  38,  §  46. 

Minnesota.  —  Stat.  (1894),  §  6423. 

Mississippi.  —  Anno.  Code  (1892),  § 
1006. 

Missouri.  —  Rev.  Stat.  (1889),  §  3780. 

Montana.  —  Pen.  Code  (1895),  §  320. 

New  Jersey.  —  Gen.  Stat.  (1895),  p. 
1093,  §  236. 

New  York.  —  Pen.  Code,  §  168  (Birds. 
Rev,  Stat.  (1896),  p.  587,  §  i). 

North  Dakota.  —  Rev.   Codes  (1895), 

§  7037. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §  6425. 

Tennessee.  —  Code  (1896),  g  6693. 

Utah.  —  Kftv.  Stat.  (1898),  §  4156, 

For  a  statute  prohibiting  the  associa- 
tion of  persons  to  prevent  any  person 
from  apprenticing  himself  to  learn  a 
trade,  or  for  the  purpose  of  inducing 
one  so  apprenticed  to  leave  the  employ- 
ment of  his  employer,  see  3  Ga.  Code 
(1895),  §  119- 

For  the  formal  parts  of  an  indictment, 
information  or  criminal  complaint  in  a 
particular  jurisdiction  consult  the  titles 
Indictments;  Informations;  Criminal 
Complaints. 

For  other  forms  of  indictments  see  as 
follows: 

Conspiracy  by  workmen  against  em- 
ployers to  compel  reinstatement  of  dis- 
charged employee.  Reg.  v.  Bunn,  12 
Cox  C.  C.  316;  Reg.  V.  Rowlands,  17 
Q.  B.  671,  79  E.  C.  L.  670. 

Conspiracy  by  workmen  to  leave  their 


employment   in   violation  of   contract. 
Reg.  V.  Bunn,  12  Cox  C.  C.  316. 

By    workmen    to  prevent   their   em 
ployers  from  retaining  and  employing 
apprentices.    Rex  v.  Ferguson,  2  Stark. 
489,  3  E.  C.  L.  500. 

By  workmen  to  raise  their  wages. 
People  V.  Fisher,  14  Wend.  (N.  Y.)  9; 
People  V.  Melvin,  2  Wheel.  Cr.  Cas. 
(N.  Y.  Gen.  Sess.)  262.  But  see  N.  Y. 
Pen.  Code,  §  170,  as  amended  Laws 
(1882),  c.  384  (Birds.  Rev.  Stat.  N.  Y. 
(1896),  p.  588,  §  3). 

By  employees  to  obstruct  employers 
with  a  view  to  coerce  them  to  dismiss 
certain  workmen,  and  to  intimidate 
workmen  so  as  to  coerce  them  to  quit 
their  employment.  Reg.  v.  Hibbert,  13 
Cox  C.  C.  82;  Reg.  V.  Bauld,  13  Cox. 
C.  C.  282. 

Conspiracy  to  impoverish  a  certain 
gas  company  and  prevent  the  said 
company  from  carrying  on  its  busi- 
ness.    Reg.  V.  Bunn,  12  Cox  C.  C.  316. 

To  impoverish  a  man  and  prevent 
him  from  working  at  his  trade.  I  Cox 
C.  C.  Appendix  xxvii;  Rex  v.  Eccles,  3 
Doug.  337,  26  E.  C.  L.  131. 

See  also  State  v.  Glidden,  55  Conn.  46; 
State  V.  Donaldson,  32  N.  J.  L.  151; 
People  V.  Everest,  51  Hun  (>J.  Y.)  19. 

2.  This  indictment,  framed  under 
Tex.  Pen.  Code  (1895),  art.  981,  con- 
tained six  counts,  of  which  the  above 
is  the  first,  the  four  succeeding  counts 
being  similar  and  the  sixth  further 
charging  the  conspiracy  at  great  length. 
The  defendant  Hathaway  was  convicted 
and  appealed,  and  the  decision  of  the 
lower  court  was  reversed  on  the  ground 
that  the  proof  failed  to  show  that  the 
defendant  was  one  of  the  original  con- 
spirators composing  the  trust,  or  that 
he  afterward  entered  into  and  joined 


184 


Volume  5. 


6153.  CONSPIRACY.  6153. 

Court  for  said  county,  upon  their  oaths  in  said  court,  present] ^  that 
in  said  county  of  McLennan.,  state  aforesaid,  on  or  about  October  i, 
iZdJt,  John  D.  Rockefeller,  Henry  M.  Flagler,  William  Rockefeller, 
John  D.  Archbald,  Benjamin  Brewster,  Henry  H.  Rogers,  Wesley  H. 
Tilford,  Henry  Clay  Pierce,  Arthur  M.  Finley,  C.  M.  Adams,  J.  P. 
Gruet,  E.  Wells,  Wm.  Grice,  E.  T.  Hathaway,  and  F.  A.  Austin  did 
unlawfully  agree,  combine,  conspire,  confederate,  and  engage  with 
William  E.  Hawkins  and  divers  other  persons  to  the  grand  jurors 
unknown,  in  a  conspiracy  against  trade,  then  and  there  with  the  said 
William  E.  Hawkins  and  the  said  other  persons,  creating  a  trust  by 
a  combination  of  their  capital,  skill  and  acts  with  the  said  William  E. 
Hawkins  and  other  persons,  for  the  purpose,  design  and  effect  to 
create  and  carry  out  restrictions  in  trade,  to  wit,  in  the  manufacture, 
production,  sale,  trade,  and  shipment  of  petroleum,  petroleum  oils, 
all  the  products  of  petroleum,  refined  oils,  illuminating  oils,  and 
lubricating  oils,  the  same  being  commercial  commodities,  by  keeping 
the  price  of  said  oils  at  a  certain  price  per  gallon,  and  at  a  certain 
price  as  otherwise  sold,  which  price  was  far  above  the  true  market 
price  of  said  oils,  and  for  the  purpose  and  effect  to  prevent  competi- 
tion in  the  manufacture,  production,  sale,  trade  and  shipment  of 
petroleum,  petroleum  oils,  all  the  products  of  petroleum,  refined  oils, 
illuminating  oils,  and  lubricating  oils,  and  to  limit  and  reduce  the 
production  of  such  products,  and  to  raise  the  price  thereof  above 
the  true  market  value,  and  cause  the  same  to  be  purchased  by  the 
actual  consumers  at  a  great  price  above  the  true  market  value,  and 
to  prevent  competition  in  the  manufacture,  production,  sale,  trade 
and  shipment  of  petroleum,  petroleum  oils,  all  the  products  of  petro- 
leum, refined  oils,  illuminating  oils,  and  lubricating  oils,  the  same 
being  commercial  commodities,  and  products  of  prime  necessity  to 
the  people,  and  for  the  purpose  and  effect  to  fix  at  a  certain  standard 
and  figure  the  price  of  petroleum,  petroleum  oils,  all  the  products  of 
petroleum,  refined  oils,  illuminating  oils,  and  lubricating  oils,  whereby 
the  prices  thereof  were  and  are  established  and  fixed  in  said  county 
of  McLennan  at  a  fictitious  value,  greatly  in  excess  of  the  true 
market  value.  And  the  said  John  D.  Rockefeller,  Henry  M.  Flagler, 
William  Rockefeller,  Benjamin  Brewster,  John  L>.  Archbald,  Henry 
H.  Rogers,  Wesley  H.  Tilford,  Henry  Clay  Pierce,  Arthur  M.  Finley, 
C.  M.  Adams,  J.  P.  Gruet,  E.  Wells,  Wm.  Grice,  E.  T.  Hathaway, 
and  F.  A.  Austin,  did  then  and  there  unlawfully  make  and  enter  into  a 
trust,  combination,  contract,  agreement,  obligation  and  conspiracy 
with  the  said  William  E.  Hawkins  and  other  persons  in  said  county, 
and  all  of  said  persons  did  agree,  combine,  conspire,  confederate  and 
engage  with  each  other,  and  among  themselves,  that  they  would  not 
manufacture,  produce,   sell,  trade,  and  ship   petroleum,  petroleum 

said  conspiracy,  but  that  he  was  a  mere  away  and  the  other  defendants  as  prin- 

agent.     The  court  said:     "  In  order  to  cipals  in  the  conspiracy, 

convict  a  person  of  being  an  agent  of  a  See  a   somewhat   similar   statute  in 

conspiracy,  such  as  is  described  in  the  Ky.  Gen.  Stat.  (1894),  §  3915. 

statute,  the  indictment  must  allege  that  1.  The  words  enclosed  by  [  ]  will  not 

fact,  and  must  also  allege  that  he  knew  be  found  in  the  reported  case,  but  have 

of  the  conspiracy."     No  objection  was  been    added  to  render  the  form  com- 

made  to  the  indictment  as  against  Hath-  plete. 

185  Volume  5. 


6154.  CONSPIRACY.  6154. 

oils,  all  the  products  of  petroleum,  refined  oils,  illuminating  oils 
and  lubricating  oils  below  a  certain  price,  which  price  was  and  is  far 
above  the  true  market  value  of  said  commercial  commodity,  and  that 
they  would  fix  and  keep  the  price  of  said  oils  in  said  county  at  a  cer- 
tain price  and  graduated  figures,  and  that  for  the  purpose  of  estab- 
lishing and  setting  the  prices  of  said  oils  amongst  themselves,  and  to 
preclude  and  destroy  free  and  unrestricted  competition  in  the  manu- 
facture, production,  sale,  trade  and  shipment  of  said  oils,  they  agreed 
to  pool,  combine,  and  unite  their  interests  in  the  manufacture,  pro- 
duction, sale,  trade  and  shipment  of  said  oils,  so  that  the  price  thereof 
would  be  affected  and  fixed  at  a  certain  figure;  against  the  peace  and 
.dignity  of  the  state. 

^Andrew  Johnson.,  Foreman  of  the  Grand  Jury.]i 

b.  By  Obstructing  Business  of  a  Corpopation. 
Form  No.  6154. 

(Precedent  in  People  v.  Petheram,  64  Mich.  254.)" 

State  of  Michigan  —  The  Circuit  Court  for  the  County  of  Newaygo. 

Newaygo  County  —  ss. :  George  Luton,  prosecuting  attorney  in  and 
for  the  county  of  Newaygo,  aforesaid,  for  and  in  behalf  of  the  people  of 
the  State  of  Michigan,  comes  into  said  court,  in  the  May  term  thereof, 
in  the  year  one  thousand  eight  hundred  and  eighty-six,  and  gives  the 
court  here  to  understand  and  be  informed  that  heretofore,  to  wit,  on 
the  twenty-fourth  day  oi  January,  1S86,  at  the  village  of  Newaygo,  in 
said  county,  J.  IV.  Petheram,  chief  engineer,  and  Fred.  Coleman, 
assistant  engineer,  and  James  McLaughlin,  roadmaster,  of  the  Chi- 
cago e^*  West  Michigan  Railway  Company,  and  Adam  McNabb,  together 
with  divers  other  persons  whose  names  are  unknown,  to  the  number 
of  seventy-five,  being  persons  of  evil  minds  and  dispositions,  did  unlaw- 
fully and  wickedly  conspire,  combine,  confederate  and  agree  together 
wilfully  and  maliciously  to  obstruct  and  impede  the  regular  opera- 
tion and  conduct  of  the  business  of  the  Newaygo  Manufacturing  Com- 
pany, a  corporation  organized  under  the  laws  of  this  State,  to  wit, 
the  manufacture  of  lumber,  pails  and  tubs,  flour  and  feed,  by  it  then 
and  theretofore  carried  on  in  said  village  of  Newaygo,  by  acts  and 
means  of  inti-midation,  to  wit,  by  then  and  there  assembling  together 
in  the  night-time,  and  entering  upon  the  premises  of  said  corporation 
in  said  village,  and  obstructing  the  usual  flow  of  water  in  the  canal 
thereon,  owned  by  it,  and  by  means  of  which  its  said  business  was 
and  had  been  so  carried  on,  and  by  force  and  violence  preventing 
the  employees  of  said  corporation  from  removing  said  obstructions, 
and  thereby  preventing  the  lowering  of  the  water  in  said  canal,  and 
by  causing  a  quantity  of  hay  and  other  foreign  material  to  float  down 

1.  The  words  enclosed  by  []  will  not  court.  The  information  was  drawn 
be  found  in  the  reported  case,  but  have  under  How.  Anno.  Stat.  Mich.  (1882), 
been  added  to  render  the  form  com-  §  9275.  See  also  similar  statutes  as 
plete.  follows : 

2.  The  defendant  was  tried  and  con-  Kansas. — Gen.  Stat.  (1889),  §  2482. 
victed  upon  this  information,  and  the  Mississippi.  —  Anno.    Code    (1892),  § 
conviction  was  affirmed  by  the  supreme  1270. 

186  Volume  5. 


6155.  CONSPIRACY.  6155. 

said  canal,  and  clog  and  obstruct  the  wheels  used  in  propelling  the 
machinery  and  mills  and  factory  of  said  corporation  in  said  village, 
which  were  then  owned  and  operated  by  said  corporation  for  the 
purpose  aforesaid,  against  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  people  of  the 
State  of  Michigan. 

George  Luton,  Prosecuting  Attorney. 
[(  Verification. )]  ^ 

c.  By  Preventing  Copporation  from  Employing"  Certain  Workmen. 

Form  No.  6155. 

(Precedent  in  State  v.  Stewart,  59  Vt.  274.)* 

[State  of  Vermont,  )  _„  -13 
Caledonia  County,  j      'J 

Be  it  remembered,  that  at  the  County  Court  begun  and  holden  at  St. 
Johnsbury,  the  grand  jurors  [within  and  for  said  county  oi  Caledonia, 
upon  their  oath]  ^  present  that  James  D.  Grant,  Charles  C  Stewart, 
Orrin  E.  Clay,  John  McGeough,  Edward  O'  Toole  and  Lewis  Hill,  all  of 
Ryegate,  in  the  county  of  Caledonia,  with  divers  other  evil-disposed 
persons,  to  the  said  grand  jurors  unknown,  on  the  ISth  day  oi  April, 
A.  D.  18^5,  at  Ryegate,  in  the  county  of  Caledonia,  did  unlawfully  com- 
bine, conspire,  confederate  and  agree  together  to  prevent,  hinder  and 
deter*  by  violence,  threats  and  intimidation,*  the  Ryegate  Granite 
Works,  a  corporation  then  and  there  being  and  existing  by  law,  from 
retaining  and  taking  into  its  employment  James  O'Rourke,  William 
Goodfellaiu  and  other  persons,  to  the  said  grand  jurors  unknown,  then 
and  there  being  as  laborers  in  the  labor  and  occupation  of  granite  cut- 
ting, to  the  great  damage  of  the  said  Ryegate  Granite  Works,  and  the 
said  James  O'Rourke  and  William  Goodfellotv  and  other  persons,  to 
the  said  grand  jurors  unknown,  then  and  there  being  as  laborers  in 
the  labor  and  occupation  of  granite  cutting,  to  the  great  damage  of  the 
said  Ryegate  Granite  Works,  and  the  said  James  O'Rourke  and  William 
Goodfellow  and  others,  and  to  the  evil  example  of  all  men  and  against 
the  peace  and  dignity  of  the  State. 

1.  Verification. — The  information  was  ploying  them  ex  vi  termini  implies  a 
duly  verified,  but  the  verification  was     purpose  to  do  so. 

not  set  out  in  the  reported  case.  6.  It  is  not  necessary  to  allege   the 

2.  This  indictment  was  sustained  on  means,  the  object  of  the  conspiracy  be- 
defendant's  demurrer  and  motion  to  ing  unlawful  at  common  law,  but  the 
quash  the  same,  and  the  judgment  of  Vermont  statutes  (Stat.  (1894),  §§  5041, 
the  county  court  overruling  the  de-  5042)  prescribe  a  punishment  for  using 
murrer  and  motion  was  sustained  by  threats  or  intimidation  to  prevent  a 
the  supreme  court.  person   from    accepting  or   continuing 

3.  The  words  enclosed  by  [  ]  will  not  an  employment  in  a  mill,  etc.;  hence 
be  found  in  the  reported  case,  but  have  the  first  two  counts  of  this  indictment 
been  added  to  render  the  form  com-  were  held  to  charge  a  conspiracy  to  do 
plete.  an    act   unlawful   at  common   law   by 

4.  It  was  held  in  this  case  that  an  means  unlawful  under  the  statute.  In 
averment  that  the  granite  works  de-  alleging  the  means  it  is  suflScient  to  use 
sired  or  intended  to  employ  said  work7  the  language  of  the  statute,  without 
men  was  unnecessary.  An  allegation  setting  out  specifically  the  kind  of 
that  it  was  in  fact  prevented  from  em-  threats,  etc.,  employed. 

187  Volume  5. 


6155.  CONSPIRACY.  6155. 

And  tne  grand  jurors  aforesaid  upon  their  oath  aforesaid  further 
present  that  the  said  James  D.  Grant,  Charles  C  Stewart,  John  Mc- 
Geough,  Edward O'  Toole  ^wA  Lewis  Hill,  all  ol  Ryegate,  in  the  county  of 
Caledonia,  with  other  evil-disposed  persons,  to  the  said  grand  jurors 
unknown,  at  Ryegate  aforesaid,  on  the  13th  day  of  April,  a.  d.  \^85, 
maliciously  intending  to  control,  injure,  terrify  and  impoverish  the 
Ryegate  Granite  Works,  a  corporation  then  and  there  being  and  exist- 
ing by  law,  and  by  violence,  threats  and  intimidation,  to  force  and 
compel  said  corporation  to  conform  to  the  rules,  regulations,  by-laws 
and  decrees  of  a  branch  of  the  National  Stone  Cutters'  Union,  an  organ- 
ization then  and  there  existing,  and  to  deprive  said  corporation  of  all 
the  workmen  and  laborers  then  and  there  by  it  employed  in  its  works 
and  shops  there  situate,  unlawfully  did  conspire,  combine,  confederate 
and  agree  to  terrify,  frighten,  alarm,  intimidate  and  drive  away  by 
threats  and  intimidation,  James  O'Rourke,  Hugh  J.  O'Rourke,  William 
Goodfellow  and  others,  to  the  said  grand  jurors  unknown,  who  were 
then  and  there  workmen  and  laborers  of  the  said  Ryegate  Granite 
Works,  to  the  evil  example  of  all  men  and  against  the  peace  and  dignity 
of  the  State. 

And  the  grand  jurors  aforesaid  upon  their  oath  aforesaid  further 
present  that  the  said  James  D.  Grant,  Charles  C.  Stewart,  Orrin  E. 
Clay,  John  McGeough,  Edward  O'  Toole  and  Lewis  Hill,  being  granite 
cutters  by  occupation  and  not  being  content  to  allow  other  granite 
cutters  to  pursue  their  avocation  and  employment  wherever  they 
wished  and  upon  whatever  terms  might  be  agreed  upon  between  said 
other  granite  cuttersand  their  employers,  but  contriving  and  unjustly 
intending  to  destroy  the  effect  of  free  competition  in  the  price  and 
value  of  labor,  to  coerce  and  constrain  said  other  granite  cutters  and 
their  employers  and  to  compel  said  other  granite  cutters  to  desist 
from  labor  and  to  deprive  the  employers  thereof  of  all  their  laborers 
and  apprentices  and  thereby  to  ruin  and  destroy  their  business,  did, 
on  the  ISth  day  oi  April,  a.  d.  \%85,  at  Ryegate  aforesaid,  with  force  and 
arms  combine,  conspire,  confederate  and  unlawfully  agree  together 
and  did  enter  into  an  organization  and  compact  whereby  it  was,  among 
other  things,  provided  that  none  of  the  parties  to  said  compact  and 
organization  should  labor  or  cut  granite  for  any  person  or  persons  or 
corporation  whose  shop  or  works  had  been  by  the  parties  to  said  com- 
pact and  organization  disapproved  of  and  adjudged  to  be  "scab 
shops  "  or  works,  and  that  no  other  granite  cutters  should  be  allowed 
to  work  or  cut  granite  for  or  in  such  '•  scab  shops  "  or  works,  and  that 
all  other  granite  cutters  in  this  country  should  be  notified  that  the 
shops  or  works  so  adjudged  to  be  "  scab  "  were  **  scab  "  and  that  work 
therein  by  granite  cutters  was  forbidden  by  said  organization  and 
that  all  granite  cutters  who  disregarded  said  prohibition  and  worked 
or  cut  granite  in  such  "scab"  shop  or  works  should  be  called  "scabs" 
and  that  their  names  should  be  published  as  "scabs"  in  a  certain 
newspaper  called  the  Granite  Cutters'  Journal,  a  newspaper  of  wide  cir- 
culation among  granite  cutters  in  this  country,  and  that  all  granite 
cutters  in  this  country  should  thereby  be  notified  not  to  associate  or 
work  in  the  same  shop  with  any  of  the  parties  so  published  as 
"scabs."     And  the  szidi  James D.  Grant,  Charles  C  Stewart,  Orrin  E. 

188  Volume  5. 


6155.  CONSPIRACY.      .  6155. 

Clay^  John  McGeough,  Edward  O'  Toole  and  Lewis  Hill,  in  pursuance  of 
the  said  unlawful  conspiracy,  combination  and  compact  with  the  intent 
to  prevent  the  prosecution  of  work  in  the  shops  and  works  of  the  said 
Ryegate  Granite  Works  next  hereinafter  mentioned,  did  then  and  there 
threaten  and  say  to  James  O'Rourke,  Hugh  J.  O'Rourke,  William  Good- 
fellow  and  others  who  were  then  and  there  laborers,  workmen  and 
apprentices  as  granite  cutters  in  the  shops  and  works  there  situate  of 
the  Ryegate  Granite  Works,  a  corporation  then  and  there  being  and 
existing  by  law  and  there  carrying  on  the  business  of  cutting  granite 
and  manufacturing  granite  work,  that  said  shops  and  works  of  the  said 
Ryegate  Granite  Works  were  "scab"  shops  and  "scab"  works  and 
that  no  granite  cutters  were  allowed  to  work  therein  and  that  the  said 
James  O'Rourke,  Hugh  J.  O'Rourke,  William  Goodfellow  and  others 
would  be  "  scabs  "  if  they  worked  in  said  last  named  shops  or  works 
and  that  their  names  would  be  published  as  "  scabs"  in  said  Granite 
Cutters  Journal  if  they  worked  in  the  last  named  shops  or  works  and 
that  they  would  be  disgraced  in  the  eyes  of  all  granite  cutters  and 
would  be  avoided  and  shunned  by  all  granite  cutters,  and  that  all  other 
granite  cutters  would  refuse  to  work  or  associate  with  them,  if  they 
worked  in  the  said  last  named  shops  or  works,  and  were  published  as 
"scabs"  as  aforesaid;  and  by  means  of  the  said  sayings  and  threats, 
the  said  James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John  Mc- 
Geough, Edward  O'  Toole  and  Lewis  Hill  did  then  and  there  affright, 
drive  away  and  prevent  the  said  James  O'Rourke,  Hugh  J.  O'Rourke, 
William  Goodfellow  and  others  from  accepting,  undertaking  and 
prosecuting  their  said  employment  in  said  shops  and  works  of  the 
said  Ryegate  Granite  Works,  with  the  intent  of  them,  the  said  James  D. 
Grant,  Charles  C  Stewart,  Orrin  E.  Clay,  John  McGeough,  Edward 
O'  Toole  and  Lewis  Hill  last  aforesaid. 

And  so  the  said  grand  jurors  say  on  their  oath  aforesaid  that  the 
sa.\(l  James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John  McGeough, 
Edward  O'  Toole  and  Lexvis  Hill  did  then  and  there  in  manner  afore- 
said, by  threats,  intimidation  and  the  unlawful  and  grievous  con- 
spiracy aforesaid,  carried  into  execution,  affright,  drive  away  and 
prevent  the  said  James  O'Rourke,  Hugh  J  O'Rourke^  William  Good- 
fellow and  others  from  accepting,  undertaking  and  prosecuting  the 
employment  and  work  of  stone  cutting  in  said  shops  and  works  of  the 
said  Ryegate  Granite  Works,  with  the  lawful  intent  of  them,  the  said 
James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John  McGeough, 
Edward  O'  Toole  and  Lewis  Hill,  thereby  to  prevent  the  prosecution 
of  work  in  said  Ryegate  Granite  Works,  said  shops  and  works,  con- 
trary to  the  form  and  effect  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  State. 

And  the  said  grand  jurors,  upon  their  oath  aforesaid,  further  pre- 
sent that  said  James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John 
McGeough,  Edward  O' Toole  and  Leivis  Hill,  all  of  Ryegate  aforesaid, 
with  the  unlawful  intent  and  purpose  to  prevent  the  prosecution  of 
work  which  was  then  and  there  carried  on  by  the  Ryegate  Granite 
Works,  a  corporation  then  and  there  existing  under  the  laws  of  the 
State  of  Vermont,  in  the  manufactory  of  the  Ryegate  Granite  Works 
aforesaid,  then  and  there  situate,  did  then  and  there  threaten  the 

189  Volume  5. 


6156.  CONSPIRACY.  6156. 

said  James  O'Rourke,  Hugh  J.  O'Rourke,  William  Goodfellow  and 
others,  to  the  said  grand  jurors  unknown,  who  were  then  and  there 
at  work  in  said  manufactory,  that  they,  the  said  James  O'Rourke, 
Hugh  J.  O'Rourke,  William  Goodfellow  and  others,  would  be  "scabs" 
and  be  called  and  advertised  as  "  scabs "  and  that  they,  the  said 
James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John  McGeough, 
Ed^vard  O'  Toole  and  Lewis  Hill,  would  cause  the  names  of  the  said 
James  O'Rourke,  Hugh  J.  O' Rourke,  William  Goodfellow  and  others  to 
be  published  in  the  "  scab "  list  in  the  Gratiite  Cutters'  Journal,  a 
paper  of  wide  and  extended  circulation  among  granite  cutters  in  the 
United  States,  if  they,  the  said  James  O'Rourke,  Hugh  J.  O'Rourke, 
William  Goodfellow  and  others,  continued  work  in  the  said  manu- 
factory, and  the  said  term  "  scab  "  as  so  threatened  to  be  used  by 
the  said  James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John  Mc- 
Geough,  Edward  O'  Toole  and  Lewis  Hill,  is  an  opprobrious  and  dis- 
graceful epithet,  the  use  of  which,  in  the  manner  threatened  by  the 
said  James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John  Mc- 
Geough,  Edward  O'  Toole  and  Lewis  Hill,  would  have  the  effect  to 
disgrace  the  said  James  O'Rourke,  Hugh  J.  O'Rourke,  William  Good- 
fellow and  others,  and  make  it  difficult  and  impossible  for  them  to 
get  employment  in  their  said  employment  of  cutting  stone  in  places 
where  work  of  that  character  was  wanted;  and  the  effect  of  using 
the  term  "  scab,"  in  the  manner  threatened,  was  well  known  both  to 
the  said  James  D.  Grant,  Charles  C.  Stewart,  Orrin  E.  Clay,  John 
McGeough,  Edward  O' Toole  and  Lewis  Hill,  and  also  to  the  said 
James  O'Rourke,  Hugh  J.  O'Rourke,  William  Goodfellow  and  others, 
if  they,  the  said  James  O'Rourke,  Hugh  J.  O'Rourke,  William  Good- 
fellow and  others  continued  work  in  said  manufactory  and  by  said 
threats  then  and  there  made,  they,  the  said  James  D.  Grant,  Charles 
C.  Stewart,  Orrin  E.  Clay,  John  McGeough,  Edward  O'  Toole  and  Lewis 
Hill  did  then  and  there,  at  Ryegate,  aforesaid,  unlawfully  affright, 
drive  away  and  prevent  the  sQ,\d  James  O'Rourke,  Hugh  J.  O'Rourke, 
William  Goodfellow  and  others  from  prosecuting  said  employment  in 
said  manufactory,  contrary  to  the  form  and  effect  [of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  State.  ]i 

d.  By  Preventing  Workman  from  Obtaining  Employment. 

Form  No.  6156. 
(Precedent  in  State  v.  Dyer,  67  Vt.  691.)' 

[State  of  Vermont,  )  County  Court,  at  their  September  Term,  in 

Washington  County,  ss.  \  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-four. 

Be  it  remembered,  that  J.  T.  Lamson,  state's  attorney  within  and  for 
said  county,  in  his  own  proper  person  comes  into  court  here,  and  upon 
his  oath  of  office,  gives  said  court  to  understand  and  be  informed, ]i 

1.  The  words  enclosed  by  [  ]  will  not  2.  This  information  was  sustained  as 
be  found  in  the  reported  case,  but  have  being  in  substantial  compliance  with 
been  added  to  render  the  form  complete,     the  common-law  precedents.    It  charges 

190  Volume  5. 


6156.  CONSPIRACY.  6156. 

that  Josiah  B.  Dyer  and  Thomas  Quinlan,  of  Barre,  in  the  county  of 
Washington,  and  Frank  Morrill,  Patrick  Morrison,  Peter  Hernon,  E. 
D.  Sherburne,  H.  P.  Sylvester,  Thomas  Hocking  and  Alex  Cruicksliank, 
of  Montpelier,  in  the  county  of  Washington,  with  divers  ^evil-disposed 
persons,  to  the  state's  attorney  unknown,  on  the  22d  day  of  Novem- 
ber,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty- 
nine,  at  Montpelier,  in  the  county  of  Washington,  did  unlawfully 
combine,  conspire,  confederate  and  agree  together  to  prevent,  hinder 
and  deter,  by  violence,  threats  and  intimidation,  one  Jacob  McClure, 
then  and  there  being  a  stone  cutter  by  trade  and  occupation,  in  the 
employment  of  the  Wetmore  &  Morse  Granite  Campany  of  Montpelier, 
aforesaid,  a  corporation  then  and  there  being  and  existing  by  law,  from 
obtaining  work  or  employment,  or  continuing  in  his  said  work  and 
employment,^  at  his  said  trade  or  occupation,  in  the  said  shops  of 
the  said  Wetmore  6^  Morse  Granite  Company  of  Montpelier  aforesaid, 
or  in  any  other  shops  or  works  for  the  cutting  or  manufacture  of 
granite  work,  with  the  malicious  and  unlawful  intent,  of  them  the 
said  Josiah  B.  Dyer,  Thomas  Quinlan,  Frank  Morrill,  Patrick  Mor- 
rison, Peter  Hernon,  E.  D.  Sherburne,  H.  P.  Sylvester,  Thomas  Hockin, 
and  Alex.  Cruickshank  by  said  violence,  threats  and  intimidation,  to 
prevent  the  said  Jacob  McClure  from  obtaining  work  or  employment 
at  his  said  trade  or  occupation  in  the  shops  and  works  of  the  said 
Wetmore  6^  Morse  Granite  Cotnpany  of  Motitpelier  aforesaid,  or  in  any 
other  shops  or  works  for  the  cutting  or  manufacture  of  granite 
work,  [contrary  to  the  form,  force  and  effect  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
state. 

And  the  said  J.  P.  Lamson,  state's  attorney  as  aforesaid,  upon  his 
oath  of  office  aforesaid,  gives  said  court  further  to  understand]^  that 
Josiah  B.  Dyer,  Thomas  Quifilan,  of  Barre,  in  the  county  of  Washing- 
ton, and  Frank  Morrill,  Patrick  Morrison,  Peter  Hernon,  E.  D.  Sher- 
burne, H.  P.  Sylvester,  Thomas  Hocking  and  Alex.  Cruickshank,  of 
Montpelier,  in  the  county  of  Washington,  on  the  32d  day  of  November,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty-nine,  at 
Montpelier,  in  the  county  of  Washington,  being  granite  cutters  by  occu- 
pation, not  being  content  to  allow  other  granite  cutters  to  pursue  their 
avocations  and  employment  wherever  they  wished,  and  on  whatever 
terms  might  be  agreed  upon  between  said  other  granite  cutters  and  their 

a  conspiracy    to   do   acts   unlawful  at  ment  that  the  conspiracy  waste  prevent 

common  law  by  means  unlawful  under  McClure  "  from  obtaining  work  orem- 

the  statute  of  Vermont.  ployment   or   continuing   in    his    said 

In  Com.  V.  Hunt,  \  Met.  (Mass.)  125,  work  and  employment "  was  alternative 
an  indictment  charging  that  the  defend-  and  bad,  but  the  court  held  that  as  it 
ants  formed  themselves  into  a  society  was  alleged  that  McClure  was  in  the 
and  agreed  not  to  work  for  any  person  employment  of  the  company  when  the 
who  should  employ  workmen  not  mem-  conspiracy  was  formed,  obtaining  em- 
bers of  such  society,  after  notice  given  ployment  in  its  shops  and  continuing 
him  to  discharge  such  workmen,  was  employment  there  are  synonymous 
held  not  to  charge  a  criminal  conspiracy,  terms,  and  convey  a  conjunctive  and 
The  law  of  such  combinations  was  ex-  not  a  disjunctive  meaning, 
amined  at  length  by  Shaw,  C.  J.,  in  the  2.  The  words  enclosed  by  [  ]  will  not 
opinion  of  the  court.  be  found  in  the  reported  case,  but  have 

1.  It  was   contended   that  the  aver-  been  added  to  render  the  form  complete. 

191  Volume  5. 


6156.  CONSPIRACY.  6156. 

employers,  but  contriving  and  unjustly  and  unlawfully  intending  to 
destroy  the  effect  of  free  competition  in  the  price  and  value  of  labor, 
to  coerce  and  constrain  said  other  granite  cutters  to  join  and  become 
members  of  a  branch  of  the  National  Stone  Cutters'  Union,  an 
organization  then  and  there  existing,  at  Montpelier  aforesaid,  and  to 
prevent  said  other  granite  cutters  from  obtaining  work  at  their  said 
trade  and  occupation,  did  on  the  ^^^day  of  November^  a.  d  i8<9P,  at 
Montpelier  aforesaid,  with  force  and  arms,  combine,  conspire,  con- 
federate and  agree  together,  and  did  enter  into  an  organization  and 
compact  whereby  it  was,  among  other  things,  provided  that  no  per- 
son or  persons  not  members  of  said  branch  of  the  said  stone  cut- 
ters' union  should  be  allowed  to  work  in  the  shops  of  the  Wetmore  6^ 
Morse  Granite  Company  of  Montpelier  aforesaid,  or  in  any  other  shop 
or  works  for  the  cutting  of  granite,  or  manufacturing  of  granite 
work.  And  the  said  Josiah  B.  Dyer,  Thomas  Quintan,  Frank  Morrill, 
Patrick  Morrison,  Peter  Hernon,  E.  D.  Sherburne,  If.  P.  Sylvester, 
Thomas  Hocking  and  Alex.  Cruickshank  in  the  pursuance  of  the  said 
unlawful  conspiracy,  combination  and  compact,  with  the  intent  by 
violence,  threats  and  intimidation  to  prevent  one  Jacob  McClure,  then 
and  there  being  a  stone  cutter  by  trade  and  occupation,  from  obtain- 
ing or  continuing  work  at  his  occupation  of  granite  cutting,  in  the 
said  shops  or  works  of  the  said  Wetmore  6^  Morse  Granite  Company  of 
Montpelier  aforesaid,  or  in  any  other  shops  or  works  for  the  cutting  of 
granite,  did  then  and  there  threaten  and  say  to  Jacob  McClure,  who  was 
then  and  there  a  laborer  and  workman  as  a  granite  cutter  in  the  shops 
and  works  of  the  said  Wetmore  ^  Morse  Granite  Company  of  Montpelier 
aforesaid,  that  if  he,  the  said  Jacob  McClure,  did  not  join  and  become  a 
member  of  a  branch  of  the  National  Stone  Cutters'  Union,  then  and  there 
organized  existing  at  said  Montpelier,  that  they,  the  said  Josiah  B.  Dyer, 
Thojnas  Quintan,  Prank  Morrill,  Patrick  Morrison,  Peter  Hernon, 
E.  D.  Sherburne,  H.  P.  Sylvester,  Thomas  Hocking  and  Alex.  Cruick- 
shank, and  others  unknown  to  the  state's  attorney,  would  organize  a 
strike  against  the  said  Jacob  McClure,  in  the  shops  and  works  of  the 
said  Wetmore  c?*  Morse  Granite  Company  of  Montpelier  aforesaid,  and 
would  prevent  him,  the  said  Jacob  McClure,  from  obtaining  work  at 
his  said  trade  of  stone  cutting  in  said  shops  of  the  said  Wetmore  &* 
Morse  Granite  Company  of  Montpelier  aforesaid,  or  in  any  other  shops 
or  works  where  granite  cutting  or  manufacturing  was  carried  on. 
And  the  said  Jacob  McClure  refusing  then  and  there  to  become  a 
member  of  the  said  branch  of  the  National  Stone  Cutters'  Union,  the 
said  Josiah  B.  Dyer,  Thomas  Quintan,  Frank  Morrill,  Patrick  Morrison, 
Peter  Hernon,  E.  D.  Sherburne,  H.  P.  Sylvester,  Thomas  Hocking  and 
Alex.  Cruickshank,  did  then  and  there  threaten  and  say,  to  the  said 
Wetmore  &>  Morse  Granite  Company  of  Montpelier  aforesaid,  that  unless 
the  said  Jacob  McClure  was  turned  away  from  his  employment  as  a 
granite  cutter,  in  the  said  shops  and  works  of  the  said  Wetmore  &* 
Morse  Granite  Company  of  Montpelier  aforesaid,  they,  the  said  Josiah  B. 
Dyer,  Thomas  Quintan,  Frank  Morrill,  Patrick  Morrison,  Peter  Hernon, 
E.  D.  Sherbur?ie,  H.  P.  Sylvester,  Thomas  Hocking  and  Alex.  Cruick- 
shank would  organize  a  strike  against  the  said  Jacob  McClure  and 
would  prevent  the  said  Wetmore  &"  Morse  Granite  Company  of  Mont- 

192  Volume  5. 


6157. 


CONSPIRACY. 


6157. 


pdier  aforesaid,  from  obtaining  or  employing'  any  workmen  or 
laborers  in  their  said  shops  or  works,  and  by  means  of  said  sayings 
and  threats  the  said  Josiah  B.  Dyer,  Thomas  Quinlan,  Frank  Morrill, 
Patrick  Morrison,  Peter  Hernon,  E.  D.  Sherburne,  H.  P.  Sylvester, 
Thomas  Hocking  and  Alex.  Cruickshank  did  then  and  there  affright, 
drive  away  and  prevent  the  said  Jacob  McClure  from -obtaining  and 
continuing  his  employment  and  labor  in  the  said  shops  or  works  of  the 
said  Wetmore  &"  Morse  Granite  Company  of  Montpelier  aforesaid. 
And  so  the  said  state's  attorney,  on  his  oath  aforesaid,  says  that  the 
said  Josiah  B.  Dyer,  Thomas  Quinlan,  Frank  Morrill,  Patrick  Morri- 
son, Peter  Hernon,  E.  D.  Sherburne,  H.  P.  Sylvester,  Thomas  Hocking 
and  Alex.  Cruickshank  did  then  and  there,  in  manner  aforesaid,  by 
threats,  intimidation  and  the  unlawful  and  grievous  conspiracy  afore- 
said, carried  into  execution  as  aforesaid,  prevent  the  said  Jacob 
McClure  from  obtaining  and  prosecuting  his  said  employment  and 
work  of  stone  cutting  in  the  said  shops  and  works  of  the  said  Wetmore 
cr*  Morse  Granite  Company  of  Montpelier  aforesaid,  or  in  any  other  shop 
or  works  for  the  manufacture  or  cutting  of  granite  [contrary  to  the 
form,  force  and  effect  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  state. 

J.  P.  Lamson,  State's  Attorney.]^ 

5.  To  Obstruct  Justice  and  the  Due  Administration  of  Law.^ 


1.  The  words  enclosed  by  [  ]  will  not 
be  found  in  the  reported  case,  but  have 
been  added  to  render  the  form  com- 
plete. 

2.  For  statutes  prohibiting  conspira- 
cies for  the  commission  of  any  act  for 
the  perversion  or  obstruction  of  justice 
or  the  due  administration  of  the  law  see 
as  follows: 

California.  — "^^v^.  Code  (1897),  §182. 

Florida.  —  Rev.  Stat.  (1892),  §  2593. 

Idaho.  —  Rev.  Stat.  (1887),  §  6540. 

Minnesota.  —  Stat.  (1894),  §  6423. 

Mississippi. — Anno.  Code  (1892), 
t^  1006. 

Missouri.  — Rev.  Stat.  (1889),  §  3780. 

Montana.  —  Pen.   Code  (1895),  §  320. 

New  Jersey. — Gen.  Stat.  (1895),  p. 
1093,  p  236. 

iV<?a;For>t.  — Pen.  Code,  §168  (Birds. 
Rev.  Stat.  (1896),  p.  587,  g  i). 

North  Dakota.  —  Rev.    Codes    (1895), 

§  7037. 

South  Dakota.  —  Dak.  Com  p.  Laws 
(1887),  S  6425. 

Tennessee.  — Code  (1896),  §  6693. 

Utah.  —  Rev.  Stat.  (1898),  §  4156. 

For  the  formal  parts  of  an  indictment, 
information  or  criminal  complaint  in 
a  particular  jurisdiction  consult  the 
titles  Indictments;  Informations; 
Criminal  Complaints. 


For  other  indictments  for  similar  con- 
spiracies see  as  follows: 

Defeat  of  Prohibition  Law. — An  in- 
dictment charging  that  the  defendants 
"  unlawfully  and  feloniously  did  con- 
spire and  confederate  together,  with  the 
fraudulent  intent  to  do  an  illegal  act, 
injurious  to  the  administration  of  pub- 
lic justice,  to  wit,  did  conspire  and 
confederate  together,  with  the  said  in- 
tent, to  defeat  the  enforcement  of  the 
prohibitory  liquor  law,  so  called,  in 
said  county,  wrongfully,  to  wit,  with 
money  and  other  unlawful  means,  to 
prevent  the  grand  jury  of  said  county 
at,  etc.,  from  finding  and  presenting 
bills  of  indictments  for  violation  of  said 
prohibitory  liquor  law,  in,  etc.,  con- 
trary to,"  etc.,  was  held  insufficient,  in 
failing  to  state  in  what  manner  the 
money  was  to  have  been  used,  and  in 
not  specifying  the  other  unlawful 
means  intended  to  be  employed.  State 
V.  Potter,  28  Iowa  554. 

Destruction  of  IVarrant.  —  An  indict- 
ment for  a  conspiracy  to  destroy  a  war- 
rant in  the  name  of  the  state,  issued 
against  a  defendant  on  a  criminal 
charge,  and  a  recognizance  for  the  ap- 
pearance of  said  defendant  to  answer 
such  charge,  with  the  intent  thereby  tc 
impede  the  due  administration  ofjus- 


5  E.  of  F.  P.  —  13. 


193 


Volume  5. 


6167. 


CONSPIRACY. 


6158. 


a.  By  Assaulting  a  Public  Offleer. 
Form  No.  6157.' 

{Commencing  as  in  Form  No.  6122,  and  continuing  down  to  *)  that 
Henry  Ripley,  John  Doe  and  Samuel  Short,  being  evil-disposed  per- 
sons, and  wickedly  devising  and  intending  to  do  a  certain  illegal  act 
injurious  to  the  administration  of  public  justice,  to  wit,  to  assault, 
beat,  abuse,  wound  and  ill  treat  one  Henry  K.  Baker,  in  order  to  hin- 
der and  prevent  him,  the  said  Henry  K.  Baker,  being  then  and  there 
one  of  the  justices  of  the  peace  within  and  for  the  said  county  of 
Penobscot,  from  the  performance  and  discharge  of  his  duties  in  his 
office  aforesaid,  on  the  Jirst  day  oi  January,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  ninety-seven,  at  the  county  aforesaid, 
did  then  and  there  unlawfully  conspire,  combine,  confederate  and 
agree  together,  with  the  malicious  intent,  wrongfully  and  wickedly  to 
do  a  certain  illegal  act,  injurious  to  the  administration  of  public  jus- 
tice, to  wit,  to  assault,  beat,  abuse,  wound  and  ill  treat  the  said 
Henry  K.  Baker,  in  order  to  hinder  and  prevent  him,  the  said  Henry 
K.  Baker,  being  then  and  there  one  of  the  justices  of  the  peace 
within  and  for  the  said  county  of  Penobscot,  from  the  performance 
and  discharge  of  his  duties  in  his  office  aforesaid,  contrary  to  (^con- 
cluding as  in  Form  No.  612'Z). 

b.  By  Giving  False  Evidence  and  Suppressing  Facts  on  Trial.' 


tice,  should  positively  aver  the  facts 
that  such  warrant  did  issue,  and  such 
a  recognizance  was  acknowledged,  and 
should  also  set  forth  so  much  of  the 
warrant  and  recognizance  as  is  neces- 
sary to  show  that  they  were  valid,  and 
therefore  the  destruction  of  them  might 
be  prejudicial  to  the  administration  of 
justice.  Hence  if  the  warrant  and 
recognizance  be  mentioned  only  by 
way  of  reference  and  recital,  and  it  be 
not  stated  with  any  precision  by  whom 
the  warrant  was  issued,  nor  before 
whom  the  recognizance  was  taken, 
and  if  the  substance  of  the  warrant 
and  recognizance  be  not  set  forth,  so 
that  it  may  be  seen  whether  they  or 
either  of  them  had  legal  validity,  the 
indictment  will  be  insufficient.  State 
V.  Enloe,  4   Dev.  &  B.    L.  (20  N.  Car.) 

373-. 

Violation  of  Election  Laws. — An  in- 
dictment under  section  191  of  the  New 
Jersey  Crimes  act  as  amended  (Rev. 
Sup.,  p.  199,  §  43),  charging  the  defend- 
ants with  conspiracy  to  pervert  and  ob- 
struct the  administration  of  the  election 
laws  by  doing  certain  acts  with  intent  to 
influence  the  result  of  a  certain  election, 
was  held  to  sufficiently  show  a  crime 
within  the  provisions  of  that  section. 
Moschell  V.  State,  53  N.  J.  L.  498. 


For  substance  of  an  indictment  for  a 
conspiracy  to  procure  false  and  fraudu- 
lent votes  to  be  cast  see  Com.  v.  Eng- 
lish, II  Phila.  (Pa.)  439. 

1.  This  form  is  substantially  the  in- 
dictment in  State  v.  Ripley,  31  Me.  386, 
which  was  objected  to,  among  other 
things,  because  it  did  not  aver  that  the 
said  Baker  was  a  magistrate  duly  quali- 
fied to  administer  justice,  nor  that  he 
was  in  the  act  of  administering  justice 
and  performing  his  duties  as  magis- 
trate, nor  that  he  had  performed  or  con- 
templated or  undertaken  to  perform  any 
act  by  virtue  of  his  office;  and  be- 
cause it  did  not  set  forth  how  the  said 
acts  would  affect  the  administration  of 
public  justice.  The  court  held  the  in- 
dictment good,  saying,  "If  they  (the 
defendants)  designed  to  commit  the  as- 
sault and  battery,  and  unlawfully  con- 
federated for  that  purpose,  with  the 
belief  that  it  would  hinder  the  admin- 
istration of  public  justice,  but  it  was 
not  known  or  comprehended  precisely 
in  what  mode  the  object  would  be  at- 
tained, the  crime  would  be  sufficiently 
charged." 

2.  For  other  forms  of  indictments  and 
informations  for  similar  conspiracies 
see  as  follows: 

Indictment  for  conspiracy  to  induce 


194 


Volume  5. 


6158.  CONSPIRACY.  6158. 

Form  No.  6158. 

(Precedent  in  5  Cox  C.  C.  Appendix  ix.) 

Central  Criminal  Court,  to  wit.  The  jurors  of  our  Lady  the 
Queen  upon  their  oath  present,  that  before  the  commission  of  the 
offense  by  William  Coes  and  Richard  Coes,  hereinafter  mentioned  to 
have  been  committed  by  them,  one  Fred  Saunders  had  been  charged 
before  John  Tunis,  Esq.,  one  of  the  magistrates  of  \\it,  police  courts  of 
the  metropoHs,  sitting  at  the  police  court,  Greenwich,  in  the  county 
of  Kent,  and  within  the  metropolitan  police  district,  on  suspicion  of 
having  committed  a  felony,  to  wit,  of  having  feloniously  broken  and 
entered  the  dwelling-house  of  one  John  Martin,  and  stolen  therein 
divers  goods,  chattels  and  moneys  of  the  said  John  Martin.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
at  the  time  of  the  commission  of  the  offense  hereinafter  alleged  to 
have  been  committed  by  the  said  William  Coes  and  Richard  Coes,  to 
wit,  on  the  30th  day  of  September,  in  the  year  of  our  Lord  i85^, 
at  the  parish  of  Greenwich,  in  the  county  of  Kent,  they  the  said 
William  Coes  and  Richard  Coes  knew  and  were  acquainted  with  divers 
matters,  facts,  circumstances  and  things  material  to  be  inquired  into 
by  the  said  John  Tunis,  as  such  magistrate  as  aforesaid,  touching 
and  concerning  the  said  charge  and  the  said  subject  matter  thereof, 
all  and  every  of  which  said  matters,  facts,  circumstances  and  things 
it  then  and  there  was  the  duty  of  the  said  William  Coes  and  Richard 
Coes  to  make  known  and  reveal  to  the  said  John  Tunis  as  such  magis- 
trate as  aforesaid,  and  which  they  the  said  William  Coes  and  Richard 
Coes  were  then  and  there  required  on  Her  Majesty's  behalf  by  the 
said  John  Tunis,  as  such  magistrate  as  aforesaid,  to  make  known, 
discover,  and  reveal  to  him  the  said  John  Tunis,  as  such  magistrate 
as  aforesaid.  And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present,  that  the  said  William  Coes,  late  of  the  parish  of 
Greenwich,  in  the  county  of  Kent,  laborer,  and  Richard  Coes,  late  of 
the  same  place,  laborer,  being  evil-disposed  persons,  and  contriving 
and  intending  as  much  as  in  them  lay  to  prevent  the  due  course  of 
law  and  justice,  and  not  regarding  their  said  duty  in  that  behalf,  on 
the  30th  day  of  September,  in  the  year  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  unlawfully  did  conspire,  combine, 
confederate  and  agree  together  to  deceive  the  said  John  Tunis,  so 
being  such  magistrate  as  aforesaid,  in  the  premises,  and  to  withhold 
and  conceal  from  the  said  John  Tunis  the  said  matters,  facts,  circum- 
stances, and  things,  and  falsely  to  represent  to  the  said  John  TuniSy 
so  being  such  magistrate  as  aforesaid,  that  they  and  each  of  them, 
the  said  William  Coes  and  Richard  Coes,  were  ignorant  of  all  the  said 

witness    to    suppress    his    testimony,  on  a  trial  for  felony.     2  Cox  C.  C.  Ap- 

People  V.  Chase,  i6  Barb.  (N.  Y.)  495.  pendix  xlv;   Reg.   v.  Hamp,  6  Cox  C. 

For   information    for    conspiracy   to  C.  167. 
prevent  a  witness  from  testifying.    Rex         Perform  of  indictment  for  conspira- 

V.  Steventon,  2  East  362.  cy  to  defame  certain  persons  so  as  to 

For  indictment   for  a  conspiracy  to  discredit  their  evidence  on  a  trial.    Reg. 

prevent  a  material  witness  from  giving  v.  Knot,  7  How.  St.  Tr.  763. 
evidence  pursuant  to  her  recognizance 

195  Volume  5. 


6159.  CONSPIRACY.  6159. 

several  matters,  facts,  circumstances,  and  things,  and  falsely  to  swear 
before  the  said  John  Tunis  to  the  effect  last  aforesaid,  and  by  such  false 
swearing,  and  divers  deceitful,  false,  and  indirect  means,  ways,  and 
methods,  to  perfect  and  put  into  effect  the  said  wicked  conspiracy, 
combination,  confederacy,  and  agreement,  and  to  procure  the  said 
John  Tunis,  as  such  magistrate  as  aforesaid,  to  dismiss  the  said 
charge,  and  mutually  to  aid  and  assist  one  another  in  perfecting  and 
putting  into  execution  the  said  wicked  conspiracy,  combination,  con- 
federacy, and  agreement,  in  contempt  of  our  said  Lady  the  Queen, 
and  her  laws,  to  the  evil  and  pernicious  example  of  all  persons  in  the 
like  case  offending,  and  against  the  peace  of  our  said  Lady  the 
Queen,  her  crown  and  dignity. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent, that  the  said  Williatn  Coes  on  the  SOth  day  of  September,  in  the 
year  aforesaid,  at  the  parish  of  Greenwich  aforesaid,  in  the  county  of 
Kent  aforesaid,  unlawfully  did  conspire,  combine,  confederate,  and 
agree  together,  and  with  divers  other  persons,  whose  names  to  the 
jurors  aforesaid  are  unknown,  wilfully  and  corruptly  to  give  false 
evidence,^  and  wilfully  and  corruptly  to  swear  to  that  which  was  false, 
upon  the  examinations  upon  oath  of  them  the  said  William  Coes  and 
Richard  Coes,  before  the  saidyi?^^  Tunis,  Esq.,  then  being  one  of  the 
magistrates  of  the  police  courts  of  the  metropolis,  acting  at  one  of 
the  said  courts,  to  wit,  the  Greenwich  police  court,  in  the  county  of 
Kent,  touching  and  concerning  a  certain  charge  then  depending 
before  the  said  John  Tunis,  to  wit,  a  charge  against  one  Fred  Saunders, 
of  having  feloniously  broken  and  entered  a  certain  dwelling-house  of 
one  John  Martin,  and  stolen  therein  divers  goods,  chattels,  and 
moneys  of  the  said  John  Martin,  to  the  great  and  pernicious  example 
of  all  others  in  the  like  case  offending,  in  contempt  of  our  said  Lady 
the  Queen  and  her  laws,  to  the  manifest  perversion  of  public  justice, 
and  against  the  peace  of  our  said  Lady  the  Queen,  her  crown  and 
dignity. 

e.  By  Unlawfully  Obtaining  a  Decree  of  Divorce. 
Form  No.  6159. 

(Precedent  in  Cole  v.  People,  84  111.  217.)^ 
^Commencing     as    in     Form    No.    6128,     and    continuing    do7vn 

1.  In  an  indictment  for  a  conspiracy  legal  act,  injurious  to  the  administra- 
te produce  a  false  certificate  in  evi-  tion  of  public  justice,  every  offender, 
dence,  it  is  not  necessary  to  set  forth  on  conviction,  shall  be  imprisoned  in 
that  the  defendants  knew  at  the  time  of  the  state  penitentiary,  etc.  In  sus- 
the  conspiracy  that  the  contents  of  the  taining  the  indictment  the  court  said: 
certificate  were  false;  it  is  sufficient  that  "It  is  suggested  in  argument  that 
for  such  purpose  they  agreed  to  certify  the  statute  under  which  defendants 
the  fact  as  true,  without  knowing  that  were  indicted  was  copied  from  the 
it  was  so.     Rex  z/.  Mawbey,  6T.  R.  619.  Criminal   Code  ol /o7va,  and    prior    to 

2.  This  indictment  was  drawn  under  its  adoption  by  our  legislature  it  had 
Illinois  Rev.  Stat.  (1874),  Crim.  Code,  received  a  construction  by  the  supreme 
^  46,  providing  that  if  two  or  more  court  of  that  state,  holding  that  an  in- 
persons  conspire  and  agree  together,  dictment  under  this  statute  must  speci- 
with  the  fraudulent  or  malicious  intent  fically  set  forth  the  illegal  acts  which 
wrongfully  and  wilfully  to  do  any  il-  constitute  the  offense,  and  that  general 

196  Volume  5. 


6160.  CONSPIRACY.  6 1 60. 

/^*)]i  unlawfully,  feloniously,  wilfully  and  fraudulently  did  conspire 
and  agree  together,  with  the  fraudulent  intent  wrongfully  and 
wickedly  to  injure  the  administration  of  public  justice,  by  then  and 
there  unlawfully,  wilfully  and  fraudulently  attempting  to  obtain 
and  procure  a  decree  of  divorce  [in  the  Superior  Courtjof  Cook  zownVj 
aforesaid,  contrary  to  {concluding  as  in  Form  No.  6128)^ 

d.  By  Unlawfully  Taking  Intoxicating  Liquors  Held  under  Lawful 

Seizure. 

Form  No.  6  i  6  o . 

(Precedent  in  State  v.  Harris,  38  Iowa  243.)' 

[^District  Court  of  the  County  of  Po/k. 
State  of  Iowa  ) 

against  > 

William  J.  Harris  and  Mark  IV.  Folsom.  ) 

The  grand  jury  of  the  county  of  Polk,  in  the  name  and  by  the  au- 
thority of  the  state  of  Iowa.,  accuse]  William  J.  Harris  and  Mark  W. 
Folsom  of  the  crime  of  conspiracy,  committed  as  follows: 

The  said  William  J.  Harris  and  Mark  W.  Folsom.,  on  the  21lth  day 
oi  March.,  A.  D.  i87i,  in  the  county  oi  Polk  aforesaid,  well  knowing 
that  a  certain  eight  barrels  of  intoxicating  liquors  were  then  lawfully 
in  the  custody  and  control  of  one  W.  W.  Moore.,  as  deputy  marshal, 
of  the  city  of  Des  Moines.,  in  said  county,  under  and  by  virtue  of  a 
seizure  thereof,  made  on  a  search  warrant  legally  issued  by  G.  B. 
Hammer.,  a  justice  of  the  peace  for  Lee  township  in  said  county,  on 
written  information  made  on  oath  in  due  form  of  law,  under  the  pro- 
visions of  an  act  of  the  General  Assembly  of  the  State  of  Iowa.,  en- 
titled "An  act  for  the  suppression  of  intemperance,  passed  January 
22d,  1855,"  by  one  James  Wright.,  that  he  had  reason  to  believe,  and 
did  believe  that  said  intoxicating  liquors  were  then  owned  and  kept, 
in  a  place  described,  in  said  county,  by  one  McCracken  with  intent  to  sell 
the  same  within  the  state  oilowa  in  violation  of  said  act,  and  that  the 
said  W.  W.  Moore,  as  such  deputy  marshal,  then  held  said  eight  barrels 
of  intoxicating  liquors  in  his  custody  by  virtue  of  said  seizure,  to  await 
the  final  judgment  on  said  information,  did  then  and  there  unlawfully, 
feloniously,  wickedly  and  maliciously  conspire  and  confederate  to- 
gether, with  the  fraudulent  and  malicious  intent  to  injure  the  ad- 
ministration of  public  justice,  by  unlawfully  getting  the  said  eight 
barrels  of  intoxicating  liquors  out  of  the  possession  and  control  of 
the  said  W.  W.  Moore,  and  secreting  the  same  so  that  it  could  not  be 

averments    are    not    sufficient  —  citing  1.  The  matter  enclosed  by  and  to  be 

State  V.  Stevens,  30  Iowa  391;  State  v.  supplied  within  []  will  not  be  found  in 

Potter,  28   Iowa  554;  State  v.  Jones,  13  the  reported  case. 

Iowa  269.     Even   under  the  construe-  2.  This  indictment  was  excepted  to 

tion  contended  for,  we  think  the  illegal  on  the  ground  that  it  charged  no  offense 

act  that  constitutes  the  offense  is  suffi-  under  the  laws  of  Iowa,  the  taking  of 

ciently  set  forth,  viz:  that  the  accused  the  liquor   by   the  means  alleged   not 

unlawfully,   wilfully  and  fraudulently  being    illegal,    but   the    court   (Miller, 

attempted  to  obtain  a  divorce   in   the  C.   J.,  dissenting)  held  otherwise  and 

superior  court."  sustained  the  indictment. 

197  Volume  5. 


6161.  CONSPIRACY.  6161. 

disposed  of  as  might  be  finally  adjudged  and  ordered  on  the  hearing 
of  said  information. 

And  the  said  Wm.  J.  Harris  and  Mark  W.  Folsom,  with  the  intent 
and  for  the  purpose  aforesaid,  did  then  and  there  unlawfully  cause  a 
writ  of  replevin  to  be  illegally  issued  by  one  William  Connor,  a  jus- 
tice of  the  peace  oi  Des  Moines  township,  in  said  county,  in  favor  of 
the  said  William  J.  Harris,  for  said  eight  barrels  and  their  contents, 
by  means  of  which  said  writ  of  replevin,  they,  the  said  William  J. 
Harris  and  Mark  W.  Folsom,  did  get  said  eight  barrels  of  intoxicating 
liquors  out  of  the  possession  and  control  of  the  said  W.  W.  Moore, 
and  did  remove  and  secrete  the  same,  so  that  they  could  not  be  dis- 
posed of  under  the  final  judgment  of  forfeiture  rendered  by  said  G. 
B.  Hammer,  as  such  justice  of  the  peace  on  said  information,  nor  the 
said  order  issued  by  said  G.  B.  Hammer,  as  such  justice  of  the  peace 
on  said  judgment  of  forfeiture  for  the  destruction  of  said  intoxicating 
liquors,  by  reason  of  which  said  illegal,  fraudulent  and  malicious  acts 
of  the  said  William  J.  Harris  a.nd  Mark  W.  Folsom,  and  of  their  con- 
spiring and  confederating  together  as  aforesaid,  great  injury  was 
done  to  the  administration  of  public  justice,  contrary  to  the  form  of 
the  statute  in  such  cases  made  and  provided,  and  against  the  peace 
and  dignity  of  the  state  of  Iowa. 

\Daniel  Webster,  District  Attorney.]^ 

e.  By  Securing  Appointment  to  Public  Office.^ 
Form  No.  6  i  6  i . 

(Precedent  in  People  v.  Squire,  20  Abb.  N.  Cas.  (N.  Y.  Oyer  &  T.  Ct.)  369.)' 

[Court  of  General  Sessions  of  the  City  and  County  of  New  York.^ 

The  People  of  the  State  of  New  York 

against 

Rollin  M.  Squire  and  Maurice  B.  Flynn. 

The  grand  jury  of  the  (^Here  followed  the  first  fifteen  counts  of  the 
indictment^  ^  * 

And  the  grand  jury  aforesaid,  by  this  indictment,  further  accuse 
the  said  Rollin  M.  Squire  and  Maurice  B.  Flynn  of  the  crime  of  con- 
spiracy, committed  as  follows: 

Heretofore,  to  wit,  on  the  26th  day  of  December,  in  the  year  afore- 
said, at  the  city  and  county  aforesaid,  the  term  of  a  certain  public 
officer,  to  wit,  the  commissioner  of  public  works  of  the  city  of  New 
York,  had  then  lately  before  expired,  and  the  mayor  of  said  city  was 
then  about  to  nominate,  and  by  and  with  the  consent  of  the  said 
board  of  aldermen  of  the  said  city  of  New  York,  to   appoint  some 

1.  The  words  enclosed  by  [  ]  will  not  was  held  sufficient  under  N.  Y.  Pen. 
be  found  in  the  reported  case,  but  have  Code,  ^  168  (Birds.  Rev.  Stat.  (1896), 
been  added  to  render  the  form   com-     p.  587,  §  i). 

plete.  4.  This  indictment  was  found  in  the 

2.  For  indictment  for  a  conspiracy  to  court  of  oyer  and  terminer,  but  this 
procure  the  return  of  a  member  of  par-  court  has  been  abolished  and  the  cap- 
liament  by  the  use  of  bribery  see  7  Cox  tion  made  to  conform  to  the  present 
C  C.  Appendix  xv.  practice. 

3.  The  indictment  in  this  case  was  in  5.  The  words  enclosed  by  and  to  be 
twenty-two  counts,  the  form  given  in  supplied  within  [  ]  will  not  be  found 
the  text  being  the  sixteenth  count.     It  in  the  reported  case. 

198  Volume  5. 


6161.  CONSPIRACY.  6161. 

person  as  such  commissioner  of  public  works,  fof  wliich  appointment 
as  such  commissioner  of  public  works,  the  said  Rollin  M.  Squire  was 
then  and  there  an  applicant  and  candidate.  And  the  said  MauHce 
B.  Flynn,  on  the  day  and  in  the  year  aforesaid,  was  then  and  there 
and  for  a  long  time  prior  thereto  had  been,  and  then  intended  there- 
after to  continue  and  remain,  engaged  and  interested  iti  the  business 
of  procuring,  soliciting  and  executing  awards,  orders  and  contracts, 
and  in  the  procuring,  soliciting  and  executing  of  awards,  orders  and 
contracts,  let  and  awarded  and  to  be  let  and  awarded  by  the  head  of 
the  department  of  public  works,  to  wit,  the  commissioner  of  public 
works,  of  the  city  of  New  York,  for  work  done  and  supplied  and  to 
be  done  and  supplied  for  and  on  account  of  the  corporation  of  the 
city  of  Nern  York,  the  expense,  price,  and  consideration  of  which 
was  payable,  and  was  to  be  payable,  from  the  city  treasury,  and  was 
by  reason  thereof  ineligible  to  the  said  office  of  commissioner  of 
public  works,  as  they,  the  said  Rollin  M.  Squire,  Maurice  B.  Flynn^ 
Hubert  O.  Thompson,  and  the  other  evil-disposed  persons  hereinafter 
mentioned,  then  and  there  well  knew. 

Nevertheless,  the  said  Rollin  M.  Squire  and  Maurice  B.  Flynn^ 
both  late  of  the  city  and  county  aforesaid,  together  with  said  Hubert 
O.  Thompson  and  the  said  other  evil-disposed  persons,  unlawfully, 
wickedly,  and  corruptly  contriving  and  intending  to  obstruct,  defeat 
and  pervert  the  due  administration  of  the  law,  and  to  get  into  their 
hands  and  control  the  said  office  of  commissioner  of  public  works,  for 
their  own  most  wicked  and  corrupt  ends  and  purposes,  afterwards,  to 
wit,  on  the  day  and  in  the  year  aforesaid,  at  the  city  and  county 
aforesaid,  did  unlawfully,  wickedly  and  corruptly  conspire,  combine, 
confederate  and  agree  together  between  and  amongst  themselves,  to 
cause  and  procure  him,  the  said  Rollin  M.  Squire,  by  and  through  the 
corrupt  means  and  procurement  of  them,  the  said  Rollin  M.  Squire, 
Maurice  B.  Flynn,  Hubert  O.  Thompson,  and  the  said  other  evil-dis- 
posed persons,  to  be  nominated  by  the  mayor  of  the  said  city  of  New 
York,  and  by  and  with  the  consent  of  the  said  board  of  aldermen  of 
the  said  city  of  New  York,  to  be  appointed  as  such  commissioner  of 
public  works,  upon  a  corrupt  and  wicked  understanding  and  agree- 
ment, and  with  intent  that,  upon  and  in  the  event  of  the  said  Rollin 
M.  Squire  being  appointed  to  the  said  office,  he  the  said  Rollin  M. 
Squire,  should  transact  the  business  of  the  said  office  as  the  said 
Maurice  B.  Flynn  might  and  should  direct,  and  should  and  would 
make  no  appointment  of  any  subordinates,  clerks  or  employees  of 
and  pertaining  to  the  business  of  the  said  office,  without  the  approval 
of  the  said  Maurice  B.  Flynn,  and  would  and  should  make  such 
removals  of  any  and  all  of  such  subordinates,  clerks  and  employees 
as  the  said  Maurice  B.  Flynn  might  and  should  suggest  and  request, 
and  that  the  said  Rollin  M.  Squire  should  and  would,  upon  and  in  the 
event  of  such  appointment,  grant  to  thie  said  Maurice  B.  Flynn  the 
right  and  authority  to  discharge  any  and  all  of  the  functions  of 
the  said  office,  and  should  and  would  permit  him,  the  said  Maurice  B. 
Flynn,  to  make  any  and  all  of  the  appointments  and  to  perform  any 
and  all  of  the  duties  necessarily  touching  and  being  incidental  to  the 
administration  of  the  said  office. 

199  Volume  5. 


6162.  CONSPIRACY.  6162. 

And  the  sd^di  RollinM,  Squire,  in  pursuance  and  furtherance  of  and 
according  to  the  said  conspiracy,  combination,  confederacy  and 
agreement  between  himself  and  the  said  Maurice  B.  Flynn,  Hubert 
O.  Thompson  and  the  said  other  evil-disposed  persons,  as  aforesaid, 
afterwards,  to  wit,  on  the  day  and  in  the  year  aforesaid,  in  the  city 
and  county  aforesaid,  did  personally  appear  before  the  said  mayor  of 
the  said  city  of  New  York  and  did  make  application  to  the  said  mayor 
to  be  nominated  as  such  commissioner  of  public  works,  in  due  form  of 
law;  and  did  then  and  there  cause  and  procure  the  said  mayor  to 
duly  nominate  him,  the  said  Rollin  M.  Squire^  as  such  commissioner 
of  public  works. 

And  the  said  Rollin  M.  Squire,  in  the  further  pursuance  and 
furtherance  of  and  according  to  the  said  conspiracy,  combination, 
confederacy  and  agreement  as  aforesaid,  afterwards,  to  wit,  on  the 
day  and  in  the  year  aforesaid,  at  the  city  and  county  aforesaid,  did 
unlawfully,  wickedly  and  corruptly  make,  sign  and  subscribe  and 
deliver  to  the  said  Maurice  B.  Flynn  and  Hubert  O.  Thompson,  a  cer- 
tain paper  in  these  words  following  {Here  was  set  out  a  copy  of  the 
letter),"^  to  the  manifest  perversion  and  obstruction  of  the  due  admin- 
istration of  the  laws,  to  the  pernicious  example  of  all  others  in  like 
case  offending,  against  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  of  the  people  of  the  state  of 
New  York,  and  their  dignity. 

[John  R.  Fellows,  District  Attorney  of  the 
City  and  County  of  New  York.'\^ 

6.  Under  Federal  Statutes.^ 

1.  The  letter  referred  to  was  as  follows:     more  of   such  persons  do^  any  act   to 
''New  York,  December 26th,  i8(S^.         effect  the  object  of  the  conspiracy,  all 

Maurice  B.  Flynn,  Esq.,  the  parties  to  such  conspiracy  shall  be 

Dear  Sir:    In  consideration  of  your  liable  to  a  penalty,"  etc. 

securing   not   less    than    four   County  Requisites   of   Indictment — Generally. 

Democracy   aldermen  who  shall   vote  — An    indictment    under    this    section 

for  my  confirmation  as  commissioner  must   charge  three  things   in  order  to 

of  public  works,  in   the  event  that  the  be    sufficient:     (i)     That    the    persons 

mayor  shall  send   in  my  name  for  that  named  in  the  indictment  did  conspire 

office,  I  hereby  agree  to  place  my  resig-  together   and   enter   into  an   unlawful 

nation  as  commissioner,  in  case  of  my  agreement  and  combination,  which  is 

confirmation,  in  your  hands  whenever  the  legal  signification  of  the  word  con- 

you  may  demand  the  same,  and  further,  spire    as    there    employed.      (2)    That 

to  make  no  appointment  in  said  office  they    so  conspired   together     to    com- 

without  your  approval,  and   to   make  mit  an  ofifense  against  the  laws  of  the 

such  removals  therein  as  you  may  sug-  United   States.     (3)  That  one  or  more 

gest  and  request,  and  to  transact  the  of  said  parties  to  said  conspiracy  did 

business  of  said  office  as  you  may  direct,  some   act   to   effect  the  object  of  said 

Very  truly  yours,  unlawful  combination  and  agreement. 

Rollin  M.  Squire:'  U.   S.    v.  Martin,  4  Cliff.    (U.    S.)    156; 

2.  The  words  enclosed  by  [  J  will  not  U.  S.  v.  Adler,  49  Fed.  Rep.  736.  See 
be  found  in  the  reported  case.  also  U.  S.  v.  Nunnemacher,  7  Biss.  (U. 

3.  United  States  Bevised  Statutes,  §  S.)  iii;  U.  S.  v.  Goldberg,  7  Biss.  (U. 
5440,  provides  that    "  If  two   or  more  S.)  175. 

persons  conspire,  either  to  commit  any  The  conspiracy  must  be  sufficiently 
offense  against  the  United  States,  or  to  charged.  It  cannot  be  aided  by  acts 
defraud  the  United  States  in  any  man-  done  by  one  or  more  of  the  conspira- 
ner,  or   for  any  purpose,  and   one   or     tors  in  furtherance  of  the  object  of  the 

200  Volume  5. 


6162. 


CONSPIRACY. 


6162. 


conspiracy.  U.  S.  v.  Britton,  io8  U.  S. 
199;  U.  S.  V.  Walsh,  5  Dill.  (U.  S.)  58. 

Object  of  Conspiracy.  —  An  indictment 
under  this  section,  in  order  to  be  good, 
must  charge  that  the  conspiracy  was 
to  do  some  act  made  a  crime  by  the 
laws  of  the  United  States,  and  it  must 
state  with  such  reasonable  certainty 
the  acts  intended  to  be  effected  by  the 
conspiracy  that  it  can  be  seen  that  the 
object  of  the  conspiracy  was  a  crime 
against  the  United  States.  In  re  Wolf, 
27  Fed.  Rep.  606;  U.  S.  v.  Watson,  17 
Fed.  Rep.  145;  U.  S.  v.  Gardner,  42 
Fed.  Rep.  829.  But  in  stating  the  oh- 
ject  of  the  conspiracy  the  same  cer- 
tainty and  strictness  are  not  required 
as  in  the  indictment  for  the  offense 
conspired  to  be  committed.  U.  S.  v. 
Stevens,  44  Fed.  Rep.  132;  U.  S.  v. 
Wilson,  60  Fed.  Rep.  890. 

Averment  of  Overt  Acts,  —  The  in- 
dictment, to  be  sufficient,  must  charge 
the  execution  of  some  overt  act  to 
effect  the  object  of  the  conspiracy. 
U.  S.  V.  Dennee,  3  Woods  (U.  S.)  47; 
U.  S.  V.  Martin,  4  Cliff.  (U.  S.)  156; 
U.  S.  V.  Nunnemacher,  7  Biss.  (U.  S.) 
Ill;  U.  S.  V.  Goldberg,  7  Biss.  (U. 
S.)  175;  U.  S.  V.  Watson,  17  Fed.  Rep. 
145;  U.  S.  V.  Reichert,  32  Fed.  Rep.  142; 
U.  S.  V.  Milner,  36  Fed.  Rep.  890;  U. 
S.  V.  Adler,  49  Fed.  Rep.  736;  U.  S.  v. 
Benson,  70  Fed.  Rep.  591;  Dealy  v.  U. 
S.,  152  U.  S.  539.  Compare  the  dictum 
in  U.  S.  V.  Gardner,  42  Fed.  Rep.  829. 

But  an  indictment  under  this  section 
is  sufficient  if  it  correctly  charges  an 
unlawful  combination  and  agreement 
as  actually  made,  and,  in  addition,  de- 
scribes any  act  by  any  one  of  the  parties 
to  the  unlawful  agreement  as  an  act 
intended  to  be  relied  on  to  show  the 
agreement  in  operation,  although  upon 
the  face  of  the  indictment  it  does  not 
appear  how  the  act  would  tend  to 
affect  the  object  of  the  conspiracy.  U. 
S.  V.  Donau,  ir  Blatchf.  (U.  S.)  168; 
U.  S.  V.  Sanche,  7  Fed.  Rep.  715;  U.  S. 
V.  Benson,  70  Fed.  Rep.  591.  See  also 
U.  S.  V.  Graff,  14  Blatchf.  (U.  S.)  381; 
U.  S.  V.  Boyden,  i  Lowell  (U.  S.)  266;  U. 
S.  V.  Dustin,  2  Bond  (U.  S.)  332. 

For  examples  of  averments  of  overt 
acts  held  insufficient  see  U.  S.  v.  Mil- 
ner, 36  Fed.  Rep.  890;  U.  S.  v.  Gardner, 
42  Fed.  Rep.  829. 

Any  form  of  language  that  shows 
that  some  act  was  done  to  carry  out  the 
agreement  is  sufficient;  it  is  not  neces- 
sary to  charge  that  the  overt  act  was 
done  "  to  effect  the  object  of  "  the  con- 


spiracy, though  this  is  the  language 
of  the  statute.  U.  S.  v.  Boyden,  i 
Lowell  (U.  S.)  266. 

Averment  of  Time  and  Place  of  Overt 
Act. — The  indictment  should  aver  the 
time  and  place  of  the  alleged  overt  act, 
so  as  to  identify  the  act  and  show  that 
it  post-dated  the  conspiracy  and  was  in 
fact  an  act,  not  a  part  of  the  conspiracy, 
but  done  to  effect  its  object.  U.  S.  z*. 
Milner,  36  Fed.  Rep.  890. 

Allegation  of  Means  Unnecessary.  —  An 
indictment  under  U.  S.  Rev.  Stat., 
§  5440,  which  avers  the  conspiracy  and 
then  sets  out  the  overt  acts  done  to  carry 
it  into  effect,  is  sufficient,  and  it  is  not 
necessary  to  aver  the  means  agreed  on 
to  effect  the  conspiracy.  U.  S.  v.  Den- 
nee, 3  Woods  (U.  S.)  47;  U.  S.  v.  Gold- 
man, 3  Woods  (U.  S.)  192;  U.  ^.v. 
Dustin,  2  Bond  (U.  S.)  332;  U.  S.  v. 
Gordon,  22  Fed.  Rep.  250;  U.  S.  v.  Ben- 
son, 70  Fed.  Rep.  591.  Compare  U.  S. 
v.  Walsh,  5  Dill.  (U.  S.)  58. 

An  indictment  for  a  conspiracy  to  ob- 
struct the  mails  n&^A  not  charge  that  the 
overt  acts  were  done  feloniously,  but  it 
must  charge  that  they  were  done  know- 
ingly, wilfully,  or  unlawfully;  but 
where  the  defendants  are  charged  with 
the  overt  acts  of  retarding  the  mail 
trains  it  is  not  necessary  to  charge  them 
with  knowing  at  the  time  that  the  trains 
carried  the  mails,  and  where  the  in- 
dictment charges  that  the  overt  acts 
consisted  in  turning  switches  and  over- 
turning cars  upon  the  track,  etc.,  such 
acts  will  be  presumed  illegal,  and  an 
allegation  that  the  acts  were  not  done 
in  the  lawful  exercise  of  the  defendant's 
rights  is  unnecessary;  nor  is  the  indict- 
ment restricted  to  a  single  overt  act. 
U.  S.  V.  Debs,  65  Fed.  Rep.  210. 

For  an  indictment  for  conspiracy  to 
hinder  and  prevent  a  colored  person 
from  the  enjoyment  of  personal  secu- 
rity, drawn  under  section  6  of  the  En- 
forcement act  of  1S70,  which  act  is 
substantially  incorporated  into  the  U. 
S.  Rev.  Stat,  (1878),  ^§  5508,  5509,  see 
The  Ku  Klux  Conspiracy,  vol.  12,  p. 

938. 

For  indictment  drawn  under  this  sec- 
tion for  a  conspiracy  to  intimidate  a 
citizen  in  the  free  exercise  and  enjoy- 
ment of  his  right  to  proceed  by  con- 
tempt in  the  federal  court  against  the 
defendants  for  a  violation  of  an  injunc- 
tion granted  by  said  court  restraining 
said  defendants  from  interfering  with 
his  title  to  land,  held  sufficient,  see  U. 
S.  V.  Lancaster,  44  Fed.  Rep.  885. 


301 


Volume  5. 


6162.  CONSPIRACY.  6162. 

a.  To  Cast  Away  Vessel  with  Intent  to  Injure  Underwriters. 

Form  No.  6162.' 

In  the  District  Court  of  the  United  States  of  America  for  the  South- 
ern District  of  New  York. 

Of  the  October  Term  in  the  year  of  our 
Lord  eighteen  hundred  and  ninety-seven. 
Southern  District  of  New  York,  set.  The  grand  jurors  for  the  United 
States  of  America,  inquiring  for  the  Southern  District  of  New  York, 
upon  their  oath  present,*  that  /ohn  Doe,  Richard  Roe  and  Samuel 
Short,  all  late  of  the  city,  county  and  state  of  New  York,  in  the  South- 
ern District  of  New  York,  on  th.Q  fifth  day  ol  June,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-seven,  at  the  said  city  of 
New  York,\  did  amongst  themselves,  wilfully  knd  corruptly  con- 
spire, combine,  confederate  and  agree  together,  to  injure  certain 
underwriters,  hereinafter  mentioned,  and  falsely  and  fraudulently  to 
cheat  and  defraud  them  of  divers  large  sums  of  money.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  John  Doe,  Richard  Roe  and  Samuel  Short  afterwards,  to  wit, 
on  the  (Jlere  give  the  date  of  the  policy),  in  the  year  aforesaid,  at  the 
city  of  New  York  aforesaid,  in  pursuance  of,  and  according  to  the 
said  conspiracy,  combination,  confederacy  and  agreement  amongst 
themselves  had  as  aforesaid,  did  cause  and  procure  a  certain  ship 
called  the  '■'■Daniel  Webster^'  and  certain  goods  in  and  on  board  the 
said  ship  to  be  insured  by  certain  underwriters,  to  wit,  by  Leonard 
A.  Ford,  Charles  Mainjoy  and  John  T.  Hadaway,  and  the  said  under- 
writers then  and  there  severally  executed  a  certain  policy  of  insur- 
ance upon  the  said  ship,  and  upon  the  said  goods  so  laden  on  board 
the  said  ship  as  aforesaid,  upon  and  for  a  voyage  from  the  port  of 
New  York,  to  the  port  of  Genoa,  in  the  kingdom  of  Italy.  And  the 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  John  Doe,  Richard  Roe  and  Samuel  Short  afterwards,  and 
after  the  said  ship  sailed  from  the  port  of  New  York  aforesaid,  upon 
the  voyage  aforesaid,  to  wit,  on  the  fourth  day  of  August,  in  the  year 
aforesaid,  in  further  pursuance  of  and  according  to  the  said  con- 
spiracy, combination,  confederacy  and  agreement  among  themselves 
had  as  aforesaid,  did  remove  and  unload  from  on  board  the  said  ship, 
divers  goods  insured  as  aforesaid,  of  great  value,  to  wit,  of  the  value 
oi  two  thousand  doWdiVs,  before  the  said  ship  had  reached  the  port  of  des- 
tination as  aforesaid,  to  wit,  at  the  village  of  Patchogue,  in  the  county 
oi  Suffolk,  in  the  state  oi  New  York.     And  the  jurors  aforesaid,  upon 

An  indictment  charging  in  the  gen-  and  consumed  the  time  for  conducting 
eral  language  of  U.  S.  Rev.  Stat.,  §  5506,  the  election  by  putting  frivolous  inter- 
that  at  a  certain  election  the  accused  rogations  to  such  voters,  and  unlaw- 
did  unlawfully  combine  and  confeder-  fully  created  disorder  by  pushing  and 
ate  with  each  other  to  hinder  certain  per-  doing  and  saying  disorderly  and  ille- 
sons  from  voting,  without  setting  forth  gal  things  to  them,  such  averments 
by  what  acts  and  methods  the  hinder-  being  themselves  too  vague  and  gen- 
ing  was  done,  is  too  vague  and  general,  eral.  U.  S.  z/.  Belvin,  46  Fed.  Rep.  382. 
and  the  defect  is  not  cured  by  aver-  1.  United  States.  —  Rev.  Stat.  (1878), 
ments  that  the  accused  hindered  the  ^  5364.  See  U.  S.  v.  Cole,  5  McLean 
voters  by  unlawfully  challenging  them  (U.  S.)  513. 

202  Volume  5. 


6163. 


CONSPIRACY. 


6163. 


their  oath  aforesaid,  do  further  present,  that  in  further  pursuance  of 
and  according  to  the  said  conspiracy,  combination,  confederacy  and 
agreement  amongst  themselves  had  as  aforesaid,  the  said  John  Doe, 
Richard  Roe  2.nA  Samuel  Short,  afterward,  to  wit,  on  the  twentieth  day 
of  August,  in  the  year  aforesaid,  on  the  high  seas,  did  cut,  bore 
and  make  divers  holes  in  the  bottom  and  sides  of  the  said  ship, 
with  intent  thereby  to  sink,  cast  away  and  destroy  the  said  ship,  and 
the  goods  in  and  upon  the  said  ship  so  laden  as  aforesaid,  and  with 
intent  and  design  then  and  there  wilfully  and  maliciously  to  prejudice 
and  injure  the  said  several  persons  who  had  so  underwritten  the  said 
policy  of  insurance  on  the  said  ship,  and  upon  the  goods  therein  and 
thereupon  laden  as  aforesaid,  to  the  great  damage  of  the  said  Leonard 
A.  Ford,  Charles  Mainjoy  and  John  T.  Hadaway,  who  had  so  under- 
written the  said  policy  as  aforesaid,  against  the  peace  and  dignity  of 
the  said  United  States,  and  contrary  to  the  form  of  the  statute  of  the 
same  in  such  case  made  and  provided. 

Daniel  Webster,  United  States  Attorney. 


b.  To  Deflraud  the  United  States.  > 


1.  For  other  forms  of  indictments  un- 
der U.  S.  Rev.  Stat.  (1878),  §  5440,  see 
as  follows- 

By  False  Accounts. — Where  an  in- 
dictment charges  a  conspiracy  by  the 
superintendent  and  assistant  superin- 
tendent of  the  construction  of  a  gov- 
ernment building  to  defraud  the  United 
States  out  of  a  large  sum  of  money 
by  "certifying  that  certain  false  and 
fraudulent  accounts  and  vouchers  for 
materials  furnished  for  use  in  the  con- 
struction of  the  said"  building  "and 
for  labor  performed  on  the  said  build- 
ing were  true  and  correct,"  without 
stating  what  accounts  or  vouchers,  the 
indictment  was  held  bad  for  uncer- 
tainty.  U.  S.  V.  Walsh,  5  Dill.  (U.  S.)58. 

By  False  Survey.  —  For  form  of  in- 
dictment for  a  conspiracy  to  defraud 
the  United  States  by  causing  a  fraudu- 
lent and  fictitious  survey  of  lands  to 
be  made  pursuant  to  a  contract  with 
the  United  States,  and  fraudulent  field 
notes  of  said  survey,  whereby  the  sur- 
veyor-general was  deceived  into  certi- 
fying the  amount  due  the  surveyor, 
held  sufficient,  see  U.  S.  v.  Benson,  70 
Fed.  Rep.  591,  reversing  In  re  Benson, 
58  Fed.  Rep.  962.  For  indictment  for 
similar  conspiracy  held  insufficient  un- 
der the  above  statute  see  U.  S.  v. 
Reichert,  32  Fed.  Rep.  142. 

By  Fraudulent  Disposition  of  Govern- 
ment Property. —  An  indictment  charg- 
ing that  the  defendants,  one  of  whom 
was  an  Indian  trader,  "  wickedly  de- 
vising   and    intending    to    cheat    and 


defraud  the  United  States,  fraudulently, 
maliciously  and  unlawfully  did  con- 
spire, combine,  confederate  and  agree 
together  to  cause  and  procure  certain 
goods,  wares  and  merchandise  to  be 
embezzled,  and  disposed  of  for  money, 
with  the  intent  thereby  to  defraud  the 
United  States,"  and  that  to  carry  out 
such  conspiracy  they  did  certain  acts 
set  forth  in  the  indictment,  was  ob- 
jected to  on  the  ground  that  there  is 
no  statute  of  the  United  States  under 
which  an  Indian  trader  can  be  indicted 
for  embezzlement,  and  hence  the  in- 
dictment did  not  charge  an  offense 
within  the  United  States  statute  against 
conspiracy.  The  court  held  that  the 
word  "embezzled"  might  be  omitted 
from  the  charge  and  the  indictment 
was  still  good  for  a  conspiracy  to  cheat 
and  defraud  the  United  States.  U.  S. 
V.  Upham,  2  Mont.  170. 

By  Fraudulently  Increasing  Weight  of 
Mails  Carried. — An  indictment  charg- 
ing that  certain  railway  officials,  for  the 
purpose  of  deceiving  the  postal  officials 
having  charge  of  the  weighing  of  the 
mails,  and  of  defrauding  the  United 
States  by  falsely  causing  it  to  appear 
that  the  average  weight  of  mail  matter 
transported  was  largely  in  excess  of  the 
actual  average  amount  usually  carried, 
and  thereby  to  cause  the  United  States 
to  pay  to  the  railway  company  a  com- 
pensation in  e.\cess  of  the  amount 
actually  earned,  did  conspire  to  defraud 
the  United  States  by  sending  over  the 
line  a  large  quantity  of  old  newspapers, 


203 


Volume  5. 


6163. 


CONSPIRACY. 


6163. 


(1)  By  Means  of  Pretended  Entry  of  Public  Lands. ^ 
Form  No.  6163. 

(Precedent  in  Dealy  v.  U.  S.,  152  U.  S.  539,  9  Am.  Cr.  Rep.  161.)* 

[(^Commencing  as  in  Form  No.  6162,  and  continuing  down  to  *)]3  that 
on  t\y^  first  day  oi  April,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-one,  in  the  county  of  Rolette,  State  of  North  Da- 
kota, and  within  the  jurisdiction  of  this  court,  one  William  W.  Allen, 
one  Michael  Dealy,  one  Edward  Laberge,  one  Peter  Thibert,  and  one 
H.  H.  Fritz,  and  others  to  the  grand  jury  unknown,  did   commit  the 


etc.,  in  order  to  fraudulently  increase 
the  weight  of  the  mails,  and  setting 
forth  the  overt  acts  done  in  pursuance 
of  the  conspiracy,  sufficiently  charges 
an  offense  under  U.  S.  Rev.  Stat.,  ^ 
5440.  It  is  not  necessary  to  aver  that 
the  contemplated  fraud  was  successful, 
or  that  the  matter  illegally  weighed 
was  of  weight  sufficient  to  entitle  the 
company  to  increased  compensation,  or 
that  the  illegal  forwarding  was  to  be 
continued  after  the  expiration  of  the 
time  fixed  for  weighing,  nor  is  it  re- 
quired to  state  what  particular  official 
was  to  be  deceived.  U.  S.  v.  Newton, 
48  Fed.  Rep.  218. 

Fraudulently  Securing  Pensions. — For 
an  indictment  under  sections  5440  and 
4746  for  a  conspiracy  to  defraud  the 
United  States  by  fraudulently  obtaining 
a  pension  for  one  of  the  defendants  in 
the  name  of  a  deceased  soldier  see 
U.  S.  V.  Adler,  49  Fed.  Rep.  736. 

For  an  indictment  for  a  conspiracy 
to  defraud  the  United  States  by  bribing 
a  member  of  the  board  of  examining 
surgeons,  so  as  to  influence  him  in 
making  his  report  to  the  commissioner 
of  pensions  and  thereby  secure  an 
allowance  of  a  pension,  and  of  a  larger 
pension  than  would  otherwise  have 
been  obtained,  see  U.  S.  v.  Van  Leuven, 
62  Fed.  Rep.  62. 

By  Prosecuting  a  False  Claim.  —  U.  S. 
V.  Dennee,  3  Woods  (U.  S.)  47. 

Other  statutes  relating  to  conspiracies 
to  defraud  the  government  are  as  fol- 
lows: 

U.  S.  Rev.  Stat.  (1878),  §  5438,  which 
provides  that  "  Every  person  who  en- 
ters into  any  agreement,  combination 
or  conspiracy  to  defraud  the  govern- 
ment of  the  United  States,  or  any  de- 
partment or  officer  thereof,  by  obtaining 
or  aiding  to  obtain  the  payment  or  al- 
lowance of  any  false  or  fraudulent 
claim,  shall  be  imprisoned,"  etc. 

U.  S.  Rev.  Stat.  (1878),  §  1542,  art. 
60,   par.   3,  relating  to  conspiracies  to 


defraud  the  government  by  persons  in 
the  military  service. 

U.  S.  Rev.  Slat.  (1878),  §  1624,  art. 
24,  relating  to  conspiracies  to  defraud 
the  government  by  persons  in  the 
naval  service. 

U.  S.  Rev.  Stat.  (1878),  §  3169,  which 
makes  it  a  criminal  offense  for  every 
officer  or  agent  appointed  and  acting 
under  the  authority  of  any  revenue 
law  of  the  United  States  to  conspire  or 
collude  with  any  other  person  to  defraud 
the  United  States. 

1.  A  count  in  an  indictment  under 
U.  S.  Rev.  Stat.  (1878),  §  5440,  charging 
a  conspiracy  to  defraud  the  United 
States  by  presenting  to  the  register 
and  receiver  of  a  land  office  for  ap- 
proval false  and  fraudulent  affidavits 
and  proofs  of  settlement  and  improve- 
ment under  the  pre-emption  law  of 
twenty-eight  persons,  to  the  effect  that 
such  persons  were  entitled  to  enter  the 
public  lands  under  the  pre-emption 
laws  and  had  severally  complied  with 
the  said  laws,  and  that  they  had  en- 
tered such  lands  for  their  own  indi- 
vidual benefit  and  not  for  purposes  of 
speculation,  with  an  allegation  of  overt 
acts,  is  sufficient.  Also  a  count  charg- 
ing a  conspiracy  to  defraud  the  United 
States  by  hiring  twenty-eight  persons 
to  enter  certain  public  lands  at  the  land 
office  under  color  of  the  pre-emption 
laws,  for  the  purpose  of  selling  such 
lands  to  the  defendant  and  others  on 
speculation.  U.  S.  v.  Gordon,  22  Fed. 
Rep.  250. 

2.  This  is  the  first  count  of  the  indict- 
ment, on  which  the  defendants  were 
found  guilty.  Amotion  for  a  new  trial 
and  one  in  arrest  of  judgment  was  over- 
ruled, and  this  judgment  was  affirmed 
by  the  United  States  supreme  court. 
The  indictment  is  drawn  under  U.  S. 
Rev.  Stat.  (1878),  §  5440. 

8.  The  matter  to  be  supplied  within 
[  ]  will  not  be  found  in  the  reported 
case. 


204 


Volume  5. 


6164.  CON SP  IRA  CV.  61 64. 

crime   of  conspiracy  to  defraud  the   United  States,  committed  as 
follows: 

That  at  the  time  and  place  aforesaid,  the  said  William  W.  Allen^ 
Michael  Dealy,  Edward  Laberge,  Peter  Thiberty  and  H.  H.  Fritz,  and 
others,  to  the  grand  jury  unknown,  did  falsely,  unlawfully,  and  wick- 
edly conspire,  combine,  confederate,  and  agree  together  among  them- 
selves, to  defraud  the  United  States  out  of  large  tracts  of  land  in 
said  county  of  great  value,^  by  means  of  false,  feigned,  illegal,  and 
fictitious  entries  2  of  said  lands  under  the  homestead  laws  of  the 
United  States,  the  said  lands  being  then  and  there  public  lands  of  the 
United  States,  open  to  entry  under  said  homestead  laws  at  the  local 
land  office  of  the  United  States  dX  Devil s  Lake  City,  in  said  state,  and 
that  according  to  and  in  pursuance  of  ^  said  conspiracy,  combination, 
confederacy,  and  agreement  among  themselves,  had  as  aforesaid,  the 
said  Allen  did  persuade  and  induce  one  Charles  Pattnaude  to  make 
filing  under  said  homestead  laws,  and  thereafter  to  make  proof  and 
final  entry  under  said  laws  for  the  lands  known  and  described  as  fol- 
lows: The  south  half  of  the  northeast  quarter  and  lots  one  and  two 
of  section  six,  in  township  one  hundred  and  sixty-three  north,  of 
range  seventy  west,  of  the  fifth  principal  meridian,  said  lands  lying 
and  being  in  said  county,  on  which  said  lands  said  Pattnaude,  as  said 
Allen  then  and  there  well  knew,  had  never  made  settlement,  improve- 
ment, or  residence,  contrary  to  the  form  of  the  statute  of  the  United 
States  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  United  States. 

Y James  F.  Smith,  United  States  Attorney.] 

(2)  By  Removing  Distilled  Liquors  to  Evade  Internal 
Revenue  Tax, 

Form  No.  6164. 

(Precedent  in  U.  S.  v.  Babcock,  3  Dill.  (U.  S.)  623,  note.)* 

United  States  of  America,  Eastern  District  of  Missouri,  ss. 

In  the  district  court  0/  the  United  States,  for  the  eastern  district  of 
Missouri.     At  the  November  term  of  said  court,  a.  d.  i875. 

The  grand  jurors  of  the  United  States  0/  America,  duly  impaneled, 
sworn,  and  charged  to  inquire  in  and  for  the  eastern  district  of  Mis- 

1.  Description  of  Lands.  —  It  was  ob-  as  to  include  the  proceedings  as  a 
jected  that  there  was   no  specification     whole. 

of  the  particular  tractor  tracts  of  which  3.  Description  of  Overt  Act.  —  It  v/as 

the  defendants  conspired  to  defraud  the  held  unnecessary  to  use  the  language 

United  States,   but  the  court  held  the  of  the  statute  that  the  overt  act   was 

above  general  description  sufficient.  done  "to  effect  the  object  of  the  con- 

2.  Description  of  Means.  —  It  was  fur-  spiracy."  Nor  was  it  necessary  to 
ther  objected  that  the  indictment  was  specifically  state  the  time  of  the  overt 
defective  in  its  statement  of  the  means  act,  or  that  it  was  done  within  the  limits 
by  which  the  conspiracy  was  to  be  car-  of  the  United  States. 

ried   into  effect,   the  word  "entry"  in  4.  This  indictment  was  framed  upon 

homestead    cases    having   a   technical  U.  S.  Rev.  Stat.  (1878),  §  5440.     For  the 

meaning,  referring  simply  to  the  initia-  substance   of  similar   indictments  see 

tion    of   the   proceedings,   but   the  ob-  U.  S.  v.  Fehrenback,  2  Woods  (U.  S.) 

jection   was   not   sustained,    the   court  175;    U.   S.    v.   Nunnemacher,    7  Biss. 

taking  the  word  in  its  popular  sense  so  (U.  S.)  iii;  U.  S.  v.  Smith,  2  Bond  (U. 

205  Volume  5. 


6164.  CONSPIRACY.  6164. 

souri,  on  their  oaths  present  that  Orville  E.  Babcock  and  John  A. 
Joyce,  late  of  said  district,  on  t\iQ  first  day  oi  January,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  seventy-four,  at  the  said 
district,  did  conspire,  combine,  confederate,  and  agree  together 
among  themselves,  and  with  John  McDonald,  Joseph  M.  Fitzroy, 
Alfred  Bevis,  Edward  B.  Eraser,  Rudolph  IV.  Ulrici,  Louts  Teuscher, 
John  Busby,  Gordon  B.  Bingham,  z.x\A  John  IV.  Bingham,  with  certain 
other  persons,  to  the  grand  jurors  aforesaid  unknown,  to  defraud^ 
the  United  States  of  the  internal  revenue  tax  of  seventy  cents,  then 
and  there  imposed  by  law  upon  each  and  every  proof  gallon  of  a 
large  quantity,  to  wit,  one  million  proof  gallons  of  distilled  spirits, ^ 
thereafter  to  be  produced  at  certain  distilleries,  then  and  there  situ- 
ated in  the  city  of  St.  Louis,  within  said  district,  to  wit,  the  distillery 
then  and  there  occupied  by  the  said  Alfred  Bevis  and  Edivard  B. 
Eraser,  and  then  and  there  situated  at  the  northeast  corner  of  Barton 
street  and  De  Kalb  street,  in  said  city  of  St.  Louis,  and  within  said 
district;  the  distillery  then  and  there  occupied  by  the  said  Rudolph 
W.  Ulrici,  and  then  and  there  situated  at  the  southwest  corner  of 
Cedar  street  and  Main  street  in  said  city  of  St.  Louis,  and  within  said 
district;  the  distillery  then  and  there  occupied  by  the  said  Louis 
Teuscher,  and  then  and  there  situated  at  Nos.  2808,  2810,  2812,  2814 
and  2816,  inclusive.  North  Second  street,  in  said  city  of  St.  Louis,  and 
in  said  district;  the  distillery  then  and  there  occupied  by  the  said 
John  Busby,  and  then  and  there  situated  at  the  southwest  corner  of 
Cass, avenue  and  Eleventh  street,  in  said  city  of  St.  Louis,  and  within 
said  district;  the  distillery  then  and  there  occupied  by  said  Gordon  B. 
Bingham  SiXid  John  IV.  Bingham,  and  then  and  there  situated  at  No. 
1313  Papin  street,  in  said  city  of  St.  Louis,  and  within  said  district. 

That  afterward,  to  wit,  on  the  fifteenth  day  of  July,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  seventy-four,  and  at  the 
eastern  district  of  Missouri,  the  said  Alfred  Bevis  and  Edward  B. 
Eraser,  in  pursuance  of,  and  in  order  to  effect,  the  object  of  said 
conspiracy,  combination,  confederacy,  and  agreement,  so  had  as 
aforesaid,  did  remove  from  the  said  distillery  situated  as  aforesaid  at 
the  northeast  corner  of  Barton  street  and  De  Kalb  street,  in  the  said 
city  of  St.  Louis,  to  a  place  other  than  a  distillery  warehouse  situated 
upon  and  constituting  a  part  of  the  distillery  premises,  to  wit,  to  a 

S.)  323;  U.  S.  V.  Dustin,  2  Bond  (U.  S.)  subject  matter  of  the  conspiracy  is  suffi- 

332.  ciently  described  as  "  the  taxes  arising 

For  cases  relating  to  this  celebrated  from  and  imposed  by  law  upon  certain 

conspiracy   to   defraud  the  revenue   in  divers  proof  gallons  and  quantities  of 

St.  Louis,  in  the    years    1871-1875,  see  distilled  spirits,  distilled  in  the  United 

U.  S.  z/.  McKee,  3  Dill.  (U.  S.)  551;  U.  S.  States,   then    and    there   situated   in   a 

V.  Babcock,  3  Dill.  (U.  S.)  581;  U.  S.  v,  certain  bonded  warehouse,"  describing 

McDonald,  3  Dill.  (U.  S.)  543.  said    warehouse.     U.   S.  71.    Boyden,   i 

1.  Intent  to  Defraud. —  An  indictment  Lowell  (U.  S.)  266.  In  an  indictment  ifor 
against  a  distiller  for  conspiracy  to  de-  a  conspiracy  to  remove  goods  without 
fraud  the  United  States  of  the  internal  paying  duty  thereon,  the  goods  and 
revenue  tax  need  not  state,  in  addition  means  of  effecting  the  conspiracy  may 
to  an  intent  to  defraud,  the  facts  show-  be  described  in  very  general  terms, 
ing  such  intent.  U.  S.  v.  Ulrici,  3  Dill.  Reg.  v.  Blake,  6  Q.  B.  126,  51  E.  C. 
(U.  S.)  532.  L.  126;    Reg.   V.   Thompson,    16  Q.  B. 

2.  Description  of  Goods  Bemoved.  —  The  832. 

206  Volume  5. 


6165.  CONSPIRACY.  6165. 

place  to  the  jurors  aforesaid  unknown,  a  large  quantity  of  spirits,  to 
wit,  ten  thousand  proof  gallons  thereof,  upon  which  said  spirits  the 
internal  revenue  tax  of  seventy  cents,  then  and  there  imposed  by  law 
upon  each  and  every  proof  gallon  thereof,  had  not  been  first  paid, 
and  thereby  did  then  and  there  defraud  the  United  States  of  said 
tax  {^Here  follmved  in  precisely  similar  terms  charges  of  similar  overt  acts 
by  Ulrici,  Teuscher,  Busby,  and  Bingham  respectively). 

That  afterward,  to  wit,  on  the  first  day  of  February,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  seventy-four,  at  the  said 
eastern  district  of  Missouri,  the  said  John  A.  Joyce,  in  pursuance  of, 
and  in  order  to  effect,  the  object  of  said  conspiracy,  combination, 
confederacy,  and  agreement,  so  had  as  aforesaid,  did  aid  and  abet  in 
the  removal  from  the  said  distillery  of  Alfred  Bevis  and  Edward  B. 
Eraser,  to  a  place  to  the  jurors  aforesaid  unknown,  of  a  large  quan- 
tity of  distilled  spirits,  to  wit,  one  thousand  proof  gallons  thereof, 
upon  each  and  every  proof  gallon  of  which  said  spirits  the  internal 
revenue  tax  of  seventy  cents,  then  and  there  imposed  by  law,  had 
not  first  been  paid,  contrary  to  the  form  of  the  statute  of  the  United 
States  in  such  cases  made  and  provided,  and  against  their  peace  and 
dignity. 

David  P.  Dyer, 
United  States  Attorney  for  the  Eastern  District  of  Missouri. 

e.  To  Hake  Fictitious  Census  Returns. 
Form  No.  6165. 

(Precedent  in  U.  S.  v.  Stevens,  44  Fed.  Rep.  132.)^ 

District  of  Minnesota,  ss. 

The  grand  jury  of  the  United  States  of  America  within  and  for  said 
district,  on  their  oath  present  that  heretofore,  to  wit,  on  the  second 
day  of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
•ninety,  at  the  city  of  Minneapolis,  in  this  district,  Edward  A.  Stevens, 
Thaddeus  S.  Dickey,  Louis  E.  Strum,  and  other  persons  to  the  grand 
jurors  aforesaid  unknown,  meditated  and  devised  a  scheme  to  procure 
false,  exaggerated  and  fictitious  schedules  and  returns  of  the  popula- 
tion of  said  city  on  the  first  day  of  June,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety,  to  be  made  and  forwarded  to  the 

1.  This  indictment,  based  on  U.  S.  blank  schedule.     The  third  charged  a 

Rev.  Stat.  (1878),  §  5440,  was  demurred  conspiracy   to   write   one   set   of   such 

to  on  the  ground  that  the  defendants  names  on  one  schedule  and  the  other 

Stevens  and  Dickey,  not  being  capable  on  another,  and  the  fourth  charged  a 

of  committing  the  offense  denounced  conspiracy  to  write  three  hundred  ficti- 

in  section  13  of  the  Census  act  of  1889,  tious  names  on  fifty  such  schedules  and 

which  could  be  committed  by  Strum  three    hundred    more   names   on   fifty 

only,  could  not  conspire  with  the  latter  other  schedules.     Several  of  said  three 

to  commit  said  offense,  but  the  court  hundred    names   in   the  first   instance 

overruled  the  demurrer,  the  gravamen  were  stated  as  fictitious.     It  was  ob- 

of  the  charge  being  the  conspiracy.  jected  to  this  count  that  the  charge  of  a 

The  indictment  contained  three  other  conspiracy  to  put  three  hundred  false 

counts,  all  similar  to  the  above,  except  and  fictitious  names  in  the  blanks  was 

that  the  second  charged  a  conspiracy  to  too  general,   but  the  averments   were 

write  different  fictitious  names  in  the  held  suflScient. 

207  Volume  5. 


6165.  CONSPIRACY.  6165. 

supervisor  of  the  second  census  district  of  Minnesota  by  the  several 
enumerators  employed,  and  to  be  employed,  to  take  the  eleventh  cen- 
sus of  the  United  States  within  said  city.  That  on  the  second  day  of 
June  one  Edward  J.  Davenport  was  one  of  the  supervisors  of  census, 
to  wit,  the  supervisor  of  census  within  and  for  the  second  super- 
visor's district  of  Minnesota^  duly  appointed,  qualified,  and  acting  as 
such,  under  and  pursuant  to  the  provisions  of  an  act  of  congress  of 
the  United  States,  to  wit,  an  act  entitled  "  An  Act  to  provide  for 
Taking  the  Eleventh  and  Subsequent  Censuses,"  approved  March 
first,  A.  D.  one  thousand  eight  hundred  and  eighty-nine,  and  one 
Louis  E.  Strum  was  an  enumerator  duly  employed,  appointed,  and 
qualified,  and  acting  as  such,  under  and  pursuant  to  the  provisions 
of  said  act,  within  and  for  a  certain  subdivision  of  and  within  said  cen- 
sus district,  to  wit,  subdivision  number  361\  he,  the  said  Louis  E. 
Strum,  lately  before  then,  to  wit,  on  said  second  day  of  June,  having 
taken  and  subscribed  the  oath  required  by  [section  eight]  of  said  act. 

That  the  said  Louis  E.  Strum  on  said  second  day  of  June  had  in  his 
custody  and  possession,  as  such  enumerator,  divers,  to  wit,  three 
hundred  blank  schedules  of  the  form  approved  by  the  secretary  of 
the  interior  to  be  filled  in  the  course  of  the  enumeration  to  be  by 
him  made,  according  to  the  provisions  of  said  act,  and  being  the 
same  blank  schedules  that  had  been  issued,  pursuant  to  the  pro- 
visions of  said  act,  from  the  census  office,  and  to  him,  the  said  Louis 
E.  Strum,  before  then,  lately,  to  wit,  on  said  second  day  oi  June,  trans- 
mitted and  delivered  by  said  supervisor  of  census. 

And  the  grand  jurors  aforesaid,  upon  their  oath  aforesaid,  do 
further  present  that  afterwards,  to  wit,  on  the  said  second  day  of 
June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety,  at  the  city  of  Minneapolis,  in  this  district,  the  said  Davenport 
still  being  and  acting  as  the  supervisor  of  census  within  and  for  said 
census  district,  and  the  said  Louis  E.  Strum  still  being  and  acting  as 
an  enumerator  within  and  for  his  said  subdivision,  and  still  having  in 
his  custody  and  possession  as  such  enumerator  the  said  blank  original 
schedules,  the  same  being  of  the  kind  and  form  known  as  "  Schedule 
No.  i,"  and  relating  to  and  containing  inquiries  touching  and  con- 
cerning population  and  social  statistics,  Edward  A.  Stevens,  Thaddeus 
S.  Dickey,  and  the  said  Louis  E.  Strum,  yeomen,  late  of  said  city, 
together  with  other  evil-disposed  persons  whose  names  are  as  yet  to 
the  jurors  aforesaid  unknown,  did  unlawfully  and  maliciously  con- 
spire, combine,  and  confederate  together  and  with  each  other,  in  and 
upon  one  of  said  schedules  then  and  there  unlawfully,  wilfully  and 
knowingly  to  put,  place,  insert,  and  write  the  following  imaginary, 
false  and  fictitious  names  of  persons,  that  is  to  say:  Gordon  Douglas, 
Grace  Douglas,  David  Douglas  (and  six  others),  —  in  the  several  blanks 
left  and  provided  thereon  for  the  names  of  persons  respectively  to  be 
enumerated  thereon,  pursuant  to  the  provisions  of  said  act,  and 
imaginary,  false,  pretended,  and  fictitious  answers,  items  of  informa- 
tion, particulars,  facts,  and  statistics  in  the  several  blanks  left  and 
provided  in  said  blank  schedules  for  answers  to  the  several  inquiries 
respectively  set  forth  and  contained  therein  concerning  the  persons 
to  be  enumerated  thereon;  and  required  by  said  act  to  be  answered 

308  Volume  5. 


6 1 65.  CONSPIRACY.  61 65. 

in  and  upon  said  schedule,  and  the  same  schedule  afterwards,  to  wit, 
on  said  day,  with  said  names  and  said  imaginary,  false,  pretended, 
and  fictitious  answers,  items  of  information,  particulars,  facts,  and 
statistics,  put,  placed,  inserted,  and  written  therein,  in  manner  and 
form  aforesaid,  to  wilfully  and  knowingly  duly  certify,  and  have 
and  procure  to  be  duly  certified,  in  form  of  law,  by"  him,  the  said 
Louis  E.  Strum,  as  enumerator,  as  aforesaid,  within  and  for  said  sub- 
division, and  the  same  schedule  filed  and  certified  as  aforesaid  after- 
wards, to  wit,  at  said  city  of  Minneapolis,  on  said  day,  to  unlawfully, 
knowingly,  and  wilfully  forward,  with  other  like  schedules,  to  the 
said  supervisor  as  his,  the  said  Louis  E.  Strunis,  returns  under  the 
provisions  of  said  act,  they,  the  said  Edward  A.  Stevens,  Thaddeus  S. 
Dickey,  and  Louis  E.  Strum,  then  and  there,  to  wit,  when  they  con- 
spired, combined,  and  confederated  together  as  aforesaid,  well  know- 
ing that  the  said  names,  answers,  items  of  information,  particulars, 
facts,  and  statistics,  and  each  and  every  one  of  them,  were  imaginary, 
pretended,  false,  and  fictitious,  and  that  none  of  said  imaginary, 
pretended,  and  fictitious  persons  were,  on  Xht  first  did^y  oi  June,  va 
the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety,  or  ever, 
residents  or  inhabitants  of  his,  the  said  Louis  E.  Strum's,  said  subdi- 
vision ;  and  he,  the  said  Louis  E.  Strum,  not  having  obtained  said 
names,  answers,  items  of  information,  particulars,  facts,  and  statis- 
tics, or  any  or  either  of  them,  by  any  inquiry  made  by  him,  the  said 
Louis  E.  Strum,  of  any  one,  nor  by  visit  by  him,  the  said  Louis  E. 
Strum,  personally  to  any  dwelling-house  or  family  in  his  said  subdi- 
vision, nor  in  the  course  of  enumeration  or  canvass  by  him,  the  said 
Louis  E.  Strum,  of  his  said  subdivision,  as  they,  the  said  Edward  A. 
Ste-oens,  Thaddeus  S.  Dickey,  and  Louis  E.  Strum,  then  and  there  well 
knew. 

That  afterwards,  to  wit,  on  the  said  second  da.y  ol  June,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  ninety,  at  the  city  of 
Minneapolis,  in  said  district,  pursuant  to  said  conspiracy,  and  to  pro- 
mote and  effect  the  object  thereof,  the  said  Louis  E.  Strum,  he,  the  said 
Louis  E.  Strum,  still  being  and  acting  then  and  there  as  enumerator 
as  aforesaid,  within  and  for  his  said  subdivision,  and  still  having  in  his 
custody  and  possession,  as  such  enumerator,  the  said  schedules,  and 
the  said  Davenport  st\\\  being  and  acting  then  and  there  as  supervisor 
of  census  within  and  for  said  second  census  district,  in  and  upon  one  of 
said  blank  schedules,  to  wit,  the  blank  schedule  last  hereinbefore  men- 
tioned, did  then  and  there  unlawfully,  wilfully  and  knowingly  put, 
place,  insert  and  write  the  several  imaginary,  false  and  fictitious  names 
aforesaid,  in  the  several  blanks  left  and  provided  thereon  for  the  names 
of  persons  respectively  to  be  enumerated  thereon,  pursuant  to  the  pro- 
visions of  said  act,  and  divers  imaginary,  false,  pretended  and  fictitious 
answers,  items  of  information,  particulars,  facts  and  statistics  in  the 
several  blanks  left  and  provided  in  said  blank  schedule  for  answers  to 
the  several  inquiries  respectively  set  forth  and  contained  therein  con- 
cerning the  persons  to  be  enumerated  thereon  and  required  by  said  act 
to  be  answered  in  and  upon  said  schedule.  *  *  *  And  so  the  grand 
jurors  aforesaid,  upon  their  oath  aforesaid,  do  say  that  the  said 
Edward  A.  Stevens,  Thaddeus  S.  Dickey  and  Louis  E.  Strum,  then  and 
5  E.  of  F.  P.  —  14.  209  Volume  5. 


6166.  CONSPIRACY.  6167. 

there,  to  wit,  at  the  said  city  of  Minneapolis,  on  the  said  second  day  of 
June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety, 
unlawfully  and  maliciously  did  conspire,  combine  and  confederate 
together  and  with  each  other  to  unlawfully,  wilfully  and  knowingly 
make  the  fictitious  returns  aforesaid,  in  manner  and  form  aforesaid, 
contrary  to  the  form  of  the  statute  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States. 

Geo.  N.  Baxter,  Special  Assist.  U.  S.  Attorney. 

d.  To  Plunder  a  Wrecked  Steamboat. 
Form  No.  6166. 

(Precedent  in  U.  S.  v.  Sanche,  7  Fed.  Rep.  716.)' 

[(^Commencing  as  in  Form  No.  6162,  and  continuing  down  to  f)]^  did 
conspire,  combine,  confederate,  and  agree  together,  between  and 
among  themselves,  to  plunder  certain  goods  and  merchandise,  a  more 
particular  description  of  which  said  goods  and  merchandise  being  to 
the  grand  jurors  aforesaid  unknown,  then  and  there  belonging  to  the 
steamboat  "CZ/y  of  Viciksburg,"  the  said  steamboat  being  then  and 
there  wrecked  in  distress  on  the  waters  of  the  Mississippi  river, 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States, 
while  engaged  in  commerce  and  navigation  on  the  said  river,  to  wit, 
between  Vicksburg,  in  the  state  Mississippi,  and  St.  Louis,  in  the  state 
of  Missouri;  and  that,  to  effect  the  object  of  the  said  conspiracy,  the 
said  Hercules  Sanche  then  and  there  furnished  and  loaned  to  the  said 
John  Woods  and  Elias  Boatright,  a  certain  skiff  to  be  used  by  them, 
the  said  Woods  and  the  said  Boatright,  in  plundering  said  goods  and 
merchandise  from  the  said  steamboat  [against  the  peace  {concluding  as 
in  Form  No.  6162).]^ 

e.  To  Prevent  Enjoyment  of  Elective  Franchise  and  Civil  Rights  of 

Citizens. 

(1)  By  Preventing  Homestead  Entry. 

Form  No.  6167.^ 

(^Commencing  as  in  Form  No.  6162,  and  continuing  down  to  *)  that 
Burrell  Lindsey,  a  citizen  of  the  United  States,  made  on  the  thirtieth 
day  of  December,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

1.  This  indictment  was  drawn  under  overt  act  was  insufficient  to  show  an 

U.  S.  Rev.  Stat.  (1878),  ij  5440,  for  a  con-  act   done   to   effect   the   object   of    the 

spiracy  tocommit  the  offense  denounced  conspiracy.     The  motion  was  overruled 

by  U.  S.  Rev.  Stat.  (1878),  §   5358,  and  on  both  points. 

the  defendants  moved  to  quash  it  on  2.  The  words  enclosed  by  and  to  be 
two  grounds,  the  first,  that  section  supplied  within  the  [  ]  will  not  be  found 
5440  does  not  make  it  indictable  to  con-  in  the  reported  case, 
spire  to  commit  a  trespass  against  pri-  3.  This  indictment,  drawn  under  U. 
vate  persons  or  property,  although  such  S.  Rev.  Stat.  (1878),  §  5508,  contains 
trespass  may  be  a  violation  of  the  substantially  the  facts  set  out  in  the  in- 
criminal  laws  of  the  United  States;  formation  in  U.  S.  v.  Waddell,  112  U. 
the  second,  that  the  averment  of   the  S.  76,  which  information  was  held  on 

210  Volume  5. 


6168.  CONSPIRACY.  6 1 68. 

and  eighty-two,  at  the  United  States  land  office  at  Little  Rock,  a  home- 
stead entry  on  a  quarter  section  of  land  subject  to  entry  at  that  place. 
That  afterward,  to  wit,  on  the  tenth  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  eighty-three,  while  resid- 
ing on  and  cultivating  said  land  for  the  purpose  of  perfecting  his 
right  to  the  same  under  the  laws  of  the  United  States  on  the  subject, 
namely,  sections  twenty-two  hundred  and  eighty-nine,  twenty-two 
hundred  and  ninety,  and  twenty-two  hundred  and  ninety-one  of  the 
Revised  Statutes  of  the  United  States,  the  defendants,  David  Waddell, 
John  Smith  and  Frank  Johnson  conspired  to  injure  and  oppress  him, 
and  to  intimidate  and  threaten  him  in  the  free  exercise  and  enjoy- 
ment of  that  right,  and  because  of  his  having  exercised  it,  and  pre- 
vent his  compliance  with  the  laws.  And  the  jurors  aforesaid,  upon 
their  oath  aforesaid,  do  further  present  that  in  pursuance  of  said 
conspiracy,  the  defendants,  David  Waddell,  John  Smith  and  Frank 
Johnson  did,  upon  said  homestead  tract,  to  wit,  on  said  tenth  day  of 
January  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
eighty-three,  with  force  and  arms  fire  off  loaded  guns  and  pistols  in 
the  cabin  of  said  Lindsey  and  did  then  and  there  thereby  drive  him, 
said  Lindsey,  from  his  home  on  said  homestead  entry.  And  the  jurors 
aforesaid  on  their  oath  aforesaid,  do  further  present,  that  said  de- 
fendants, David  Waddell,  John  Smith  and  Frank  Johnson,  to  wit,  on 
said  tenth  day  of  January,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  eighty-three,  went  in  disguise  upon  the  premises  of  said 
homestead  entry,  while  occupied  by  said  Lindsey,  with  intent  to  pre- 
vent and  hinder  the  free  exercise  of  and  enjoyment  by  him  of  the 
right  and  privilege  to  make  said  homestead  entry  on  the  lands  of 
the  United  States,  secured  to  him  by  the  constitution  and  laws  of 
the  United  States  and  the  right  to  cultivate  and  improve  said  land 
and  mature  his  title  as  provided  by  the  said  sections  twenty-two  hun- 
dred and  eighty-nine,  twenty-two  hundred  and  ninety,  and  twenty- 
two  hundred  and  ninety-one  of  the  Revised  Statutes  of  the  United 
States,  against  the  peace  {concluding  as  in  Form  No.  6162'). 

(2)  By  Preventing  Exercise  of  Right  of  Suffrage. 
Form  No.  6i68. 

(Precedent  in  Ex/>.  Yarbrough,  no  U.  S.  655.)' 

We,  the  grand  jurors  of  the  United  States,  chosen,  selected  and 
sworn  in  and  for  the  Northern  District  of  Georgia,  upon  our  oaths, 
present:  That  heretofore,  to  wit,  on  the  twenty-fifth  day  oi  July,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty-three, 
Jasper  Yarbrough,  James  Yarbrough,  Dilmus  Yarbrough,  Neal  Yar- 

demurrer  to  charge  an   offense    under        1.  This  indictment,  drawn  under  U. 

the  said  section  of    the  United  States  S.  Rev.  Stat.  (1878),  §§  5508,  5520,  was 

statutes.  held  sufficient. 

See  also   an    insufficient   indictment         For  other  forms  drawn  under  these 

under  this  statute  for  a  conspiracy  to  sections  see  U.  S.  v.  Crosby,  i  Hughes 

interfere   with   one's   enjoyment  of    a  (U.  S.)448;  U.  S.  v.  Butler,  i  Hughes 

mining  claim  in  U.  S.  v.  Ringeling,  8  (U.  S.)457;  U.  S.  v.  Goldman,  3  Woods 

Mont.  353.  (U.  S.)  187. 

211  Volume  5. 


6168.  CONSPIRACY.  6168. 

brought  Level  Sireetman^  Bold  Emory,  State  Lemmons,  Jake  Hayes^ 
and  E.  H.  Green,  all  late  of  said  Northern  District  of  Georgia,  did, 
within  the  sdixd  Northern  District  oi  Georgia,  and  within  the  jurisdic- 
tion of  this  court,  commit  the  offense  of  conspiracy,  for  that  the 
said  Jasper  Yarbrough,  James  Yarbrough,  Dilmus  Yarbrough,  Neat 
Yarbrough,  Loz'el  Streetman,  Bold  Emory,  State  Lemmons,  Jake  Hayes, 
and  E.  H.  Green,  did  then  and  there,  at  the  time  and  place  afore- 
said, combine,  conspire,  and  confederate  together,  by  force,  to 
injure,  oppress,  threaten,  and  intimidate  Beny  Saunders,  a  person 
of  color  and  a  citizen^  of  the  United  States  of  America  of  African 
descent,  on  account  of  his  race,  color,  and  previous  condition  of 
servitude,  in  the  full  exercise  and  enjoyment  of  the  right  and  privi- 
lege of  suffrage  in  the  election  of  a  lawfully  qualified  person  as  a 
member  of  the  congress  of  the  United  States  of  America,  and 
because  the  said  Berry  Saunders  had  so  exercised  the  same,  and  on 
account  of  such  exercise,  which  said  right  and  privilege  was  secured 
to  the  said  Berry  Saunders  by  the  constitution  and  laws  of  the  United 
States  of  America,  the  said  Berry  Saunders  being  then  and  there 
lawfully  entitled  to  vote  in  said  election,  and  having  so  then  and 
there  conspired  the  said  Jasper  Yarbrough,  James  Yarbrough,  Dilmus 
Yarbrough,  Neal  Yarbrough,  Lovel  Streetman,  Bold  Emory,  State 
Lem^nons,  Jake  Hayes,  and  E.  H.  Green  did  unlawfully,  feloniously, 
and  wilfully  beat,  bruise,  wound,  and  maltreat  the  said  Berry  Saun- 
ders, contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  United  States  of 
America. 

Second  count. — And  the  jurors  aforesaid,  upon  their  oaths  afore- 
said, do  further  present,  that  heretofore,  to  wit,  on  the  twenty-fifth 
day  of  July,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
eighty-three,  Jasper  Yarbrough,  James  Yarbrough,  Dihnus  Yarbrough, 
Neal  Yarbrough,  Lovel  Streetman,  Bold  Emory,  State  Lemmons,  Jake 
Hayes,  and  E.  H.  Green,  all  late  of  said  Northern  District  of  Georgia, 
within  the  said  Northern  District  of  Georgia  and  within  the  jurisdic- 
tion of  this  court,  did  commit  the  offense  of  conspiracy,  for  that  the 
said  Jasper  Yarbrough,  James  Yarbrough,  Dilmus  Yarbrough,  Neal 
Yarbrough,  Lovel  Streetman,  Bold  Emory,  State  Lemmons,  Jake  HayeSy . 
and  E.  H.  Green,  having  then  and  there  conspired  together,  by  force, 
to  injure,  oppress,  threaten,  and  intimidate  Berry  Saunders,  a  person 
of  color  and  a  citizen  of  the  United  States  of  America  of  African 
descent,  on  account  of  his  race,  color,  and  previous  condition  of 
servitude,  did  then  and  there  unlawfully,  wilfully,  and  feloniously  go 
in  disguise  on  the  highway,  and  on  the  premises  of  Berry  Saunders, 
with  the  intent  to  prevent  and  hinder  his  free  exercise  and  enjoy- 
ment of  the  right  to  vote  at  an  election  for  a  lawfully  qualified  per- 
son as  a  member  of  the  Congress  of  the  United  States  of  America, 
which  said  right  had  then  and  there  been  guaranteed  to  the  said 
Berry  Saunders  by  the  constitution  and  laws  of  the  United  States  of 

1.  An  indictment  under  U.  S.  Rev.  tion  that  they  were  officers  conspired 
Stat.  (1878),  §§  5508,  5509,  is  bad  that  against  in  the  discharge  of  their  official 
does  not  aver  that  the  parties  conspired  duties  is  not  sufficient.  U.  S.  v.  Pat- 
against  were  citizens,  and  an   allega-     rick,  53  Fed.  Rep.  356. 

212  Volume  5. 


6 1 69.  CONSPIRACY.  6 1 69. 

America,  the  said  Berry  Saunders  being  then  and  there  lawfully 
qualified  to  vote  at  said  election;  and  having  so  conspired,  with 
intent  as  aforesaid,  the  said  Jasper  Yarbrough,  James  Yarbrough, 
Dilmus  Yarbrough,  Neal  Yarbrough,  Loi^el  Sireetman,  Bold  Emory, 
State  Lemmons,  Jake  Hayes,  and  E.  H.  Green  did  then  and  there 
beat,  bruise,  wound,  and  maltreat  the  said  Berry  Saunders,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  United  States  of  America. 

Emory  Speer,  U.  S.  Atty. 
A  true  bill.     Oct.  12th,  i883. 

J.  C.  Kirkpatrick,  Foreman. 

(3)  By  Procuring  Inspector  of  Elections  to  Neglect  his  Duty. 

Form  No.  6169. 

(Precedent  in  In  re  Coy,  127  U.  S.  743./ 

\iCaption  and  venue  as  in  Form  No.  6162.^^^ 

The  grand  jurors  of  the  United  States,  within  and  for  the  District 
of  Indiana,  impaneled,  sworn,  and  charged  in  said  court,  at  the  term 
aforesaid,  to  inquire  for  the  United  States  within  and  for  the  District 
of  Indiana  aforesaid,  upon  their  oath  present  that  Simeon  Coy,  Henry 
Spaan,  John  H.  Councilman,  Charles  N.  Metcalf,  John  E.  Sullivan, 
Albert  T.  Beck,  George  W.  Budd,  Stephen  Mattler,  William  F.  A.  Bern- 
hamer,  and  John  L.  Reardon,  late  of  said  district,  at  the  district 
aforesaid,  on  the  third  of  November,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  eighty-six,  unlawfully,  knowingly  and 
feloniously  did  then  and  there  conspire,  confederate,  and  combine 
and  agree  together,  with  one  Samuel  E.  Perkins,  to  commit  an 
offense  against  the  United  States  in  this,  to  wit:  The  grand  jurors 
aforesaid,  impaneled  and  sworn  as  aforesaid,  do  charge  and  present 
that  on  the  2d  day  of  Noi>ember,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  eighty-six,  an  election  for  a  Representative  in  the 
Congress  of  the  United  States  from  the  Seventh  Congressional  Dis- 
trict of  the  State  of  Indiana,  was  lawfully  had  and  held  in  and  for 
said  Seventh  Congressional  District  of  Indiana;  that  the  county  of 
Marion  in  said  State,  and  the  city  of  Indianapolis,  situated  in  said 
county,  are,  and  on  said  2d  day  of  Noi^ember,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  eighty-six,  were  in  and  constituted 
parts  of  said  congressional  district,  and  that  at  said  election  for  Rep- 
resentative in  Congress,  so  held  in  said  district  and  in  said  county 
and  city,  a  Representative  in  Congress  was  lawfully  voted  for  at  each 
and  every  voting  precinct  of  said  district  and  of  said  county  and 
city,  including  the  precincts  hereinafter  particularly  named;  that  at 
said  election  one  Allen  Hisey  served  (as)  and  was  the  lawful  inspector 
of  the  election  at  and  for  the  second  precinct  of  the  thirteenth  ward 
of  said  city  of  Indianapolis,  and  at  said  election  said  John  H.  Council- 

1.  This  indictment  is  drawn  under  U.  indictment  in  In  re  Coy,  31  Fed.  Rep. 
S.   Rev.   Stat.  (1878),  §  5440,   for  a  con-     794. 

spiracy  to  violate  the  provisions  of  U.  S.  2.  The  matter  to  be  supplied  within  [  ] 
Rev.    Stat.  (1878),  §  5515.     See  also  the     will  not  be  found  in  the  reported  case. 

213  Volume  5. 


6169.  CONSPIRACY.  6169. 

man  served  (as)  and  was  the  lawful  inspector  of  election  at  and  for 
the  second  ^recmct  of  the  fourth  ward  of  said  city  of  Indianapolis,  and 
that  at  said  election  said  Stephen  Mattler  served  as  and  was  the  law- 
ful inspector  of  election  at  and  for  the  third  precinct  of  the  thirteenth 
ward  of  said  city  of  Indianapolis,  and  that  at  said  election  one  Lorenz 
Schmidt  served  as  and  was  the  lawful  inspector  of  election  at  and  for 
\.\\t  first  precinct  of  the  twenty-third  vissA  of  said  city  of  Indianapolis, 
and  one  Joel  H.  Baker  served  as  and  was  the  lawful  inspector  of 
election  at  and  for  the  sixth  precinct  of  Center  township  in  said 
county  of  Marion,  and  ont  Joseph  Becker  served  as  and  was  the  law- 
ful inspector  of  election  at  and  for  the  second  precinct  of  the  eleventh 
ward  of  the  city  of  Indianapolis  aforesaid,  and  one  Andrew  Oehler 
served  as  and  was  the  lawful  inspector  of  election  at  and  for  \.\\^  first 
precinct  of  the  seventeenth  ward  of  said  city  of  Indianapolis,  and  one 
John  Edwards  served  as  and  was  the  lawful  inspector  of  election  at 
and  for  the  second  precinct  of  the  eighteenth  ward  of  said  city  of 
Indianapolis. 

That  at  and  after  the  close  of  the  election  aforesaid,  and  until 
delivery  was  made  to  the  clerk  of  said  county  and  to  the  board  of 
canvassers  of  said  county,  each  of  said  inspectors  had  in  his  lawful 
possession  the  ballots,  tally  papers,  poll  lists,  and  certificates  of  the 
board  of  judges  of  election  of  and  for  the  precinct  of  which  he  was 
and  had  been  inspector  as  aforesaid;  said  ballots,  poll  lists,  tally 
papers,  and  certificates  each  contained  evidence  in  respect  to  said 
election  of  Representative  in  Congress,  and  said  grand  jurors  aforesaid 
do  charge  and  present  that  at  said  district,  on  said  //«>^day  of  Noi>em- 
ber,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty- 
six,  said  defendants  Sifneon  Coy,  Henry  Spaa?i,  John  H.  Councilman, 
Charles  N.  Metcalf,  John  E.  Sullivan,  Albert  T.  Beck,  George  W. 
Budd,  Stephe/i  Mattler,  William  F.  A.  Bernhamer  and  John  L.  Rear- 
don,  intending  to  obtain  unlawful  possession  of  said  papers  and 
election  returns  so  in  the  custody  of  said  inspectors,  and  feloniously 
to  mutilate,  alter,  forge,  and  change^  the  said  poll  lists,  tally  papers, 
and  certificates  of  the  judges  of  election,  did  unlawfully  and  feloni- 
ously conspire,  confederate,  combine,  and  agree  together,  and  with 
said  Samuel  E.  Perkins,  unlawfully  and  by  false  and  deceitful 
speeches,  statements,  assertions,  and  promises,  and  by  other  unlaw- 
ful means  to  the  grand  jurors  unknown,  to  counsel,  assist,  aid,  pro- 
cure, and  induce  said  Allen  Hisey,  Lorenz  Schmidt,  John  H.  Councilman, 
Stephen  Mattler,  Joel  H.  Baker,  Joseph  Becker,  Andrew  Oehler,  and 
John  Edwards,  inspectors  as  aforesaid,  and  each  of  them,  unlawfully 
to  omit,  neglect,  fail,  and  refuse  to  perform  the  duties  imposed  by 
the  laws  of  the  State  of  Indiana  upon  them  and  each  of  them  safely 
to  guard,  keep  and  preserve  from  harm  and  danger  the  papers,  poll 
lists,  tally  papers,  and  certificates  of  the  judges  of  election  so 
deposited  with  them,  the  said  inspectors,  and  each  of  them  respec- 
tively, until  lawfully  delivered  to  the  board  of  canvassers  of  said 
county  of  Marion,  and  to  the  clerk  of  said  county,  and  that  to  effect 

1.  It  is  not  necessary  to  set  out  in  the  designed  to  affect,  or  in  fact  affected, 
indictment  the  precise  nature  of  the  al-  the  result  of  the  election.  In  re  Coy, 
terations,  nor  to   aver  that  they  were     31  Fed.  Rep.  794. 

214  Volume  5. 


6 1 69.  CONSPIRACY.  6 1 69. 

the  object  of  said  conspiracy  the  said  Samuel  E.  Perkins  unlawfully 
advised,  persuaded,  and  procured  the  said  Allen  Hisey,  inspector  as 
aforesaid,  unlawfully,  and  negligently  to  deliver  to  him,  the  said 
Samuel  E.  Perkins,  the  poll  lists,  tally  papers,  and  certificates  of  the 
judges  of  election  deposited  with  him,  the  said  Allen  Hisey,  for  return 
to  the  board  of  canvassers  of  said  county  before  the  same  had  been 
returned  to  the  said  board  of  canvassers;  and  said  Samuel E.  Perkins 
and  Simeon  Gy 'unlawfully  persuaded,  advised,  and  procured  the  said 
Stephen  Mattler  unlawfully  and  negligently  to  deliver,  and  he,  the  said 
Stephen  Mattler,  consented  to  and  did  then  and  there  unlawfully  and 
negligently  deliver  to  said  Perkins  and  Coy  the  poll  lists,  tally  papers, 
and  certificate  of  the  board  of  judges  of  election  deposited  with  him, 
the  said  Stephen  Mattler,  for  return  to  the  board  of  canvassers  of  said 
county,  before  the  same  had  been  returned  to  and  canvassed  by  said 
board  of  canvassers;  and  the  said  John  E.  Snllivan  and  George  IV. 
Budd  unlawfully  received  and  took  from  Lorenz  Schmidt  the  poll  list, 
tally  paper  and  certificate  of  the  board  of  judges  of  election  depos- 
ited with  said  Lorenz  Schmidt  as  aforesaid  for  return  to  the  board  of 
canvassers  aforesaid ;  and  the  said  John  H.  Councilman,  negligently 
and  in  disregard  of  his  duty,  parted  with  and  surrendered  to  a  person 
or  persons,  to  the  grand  jurors  unknown,  the  poll  list»  tally  paper 
and  certificate  of  the  judges  of  election  deposited  with  him,  the  said 
John  H.  Councilman,  for  return  to  the  board  of  canvassers;  and  said 
Simeon  Coy  unlawfully  received,  procured  and  took  from  Andrew 
Oehler,  inspector  as  aforesaid,  the  poll  list,  tally  paper  and  certificate 
of  the  judges  of  election  deposited  with  him,  the  said  Ajidrexv  Oehler, 
as  aforesaid,  to  be  returned  to  the  board  of  canvassers  of  said  county; 
and  the  said  defendants,  Simeon  Coy,  Henry  Spaan,  John  E.  Sullivan, 
and  others  of  the  defendants,  to  the  grand  jurors  unknown,  advised, 
persuaded  and  procured  the  said  Joel  H.  Baker  unlawfully  and 
negligently  to  surrender  and  deliver  to  some  person  or  persons,  to 
the  grand  jurors  unknown,  the  poll  list,  tally  paper  and  certificate 
of  the  judges  of  election  deposited  with  him  for  return  to  the  said 
board  of  canvassers;  and  said  defendants,  Simeon  Coy,  Henry  Spaan, 
John  E.  Sullivan,  and  other  defendants,  to  the  grand  jurors  unknown, 
advised,  procured  and  persuaded  said  John  Edwards,  inspector  as 
aforesaid,  to  unlawfully  and  negligently  deliver  and  to  surrender  to 
some  person  or  persons,  to  the  grand  jurors  as  aforesaid  unknown, 
the  poll  list,  tally  paper  and  certificate  of  the  judges  of  election 
deposited  with  him,  the  said  John  Edwards,  as  aforesaid  to  be 
returned  to  the  said  board  of  canvassers;  and  said  Simeon  Coy,  John 
H.  Councilman,  Henry  Spaan,  Charles  N.  Metcalf,  John  E.  Sullivan, 
Albert  T.  Beck,  George  IV.  Budd,  Stephen  Mattler,  William  F.  A.  Bern- 
hamer  and  John  L.  Reardon  procured  the  election  of  said  William  A. 
Bernhamer  as  chairman  of  the  board  of  panvassers  of  said  election  in 
and  for  said  county  of  Marion,  in  said  State  and  district,  and  said 
William  F.  A.  Bernhamer,  as  such  chairman,  refused  to  accept  the 
poll  list,  tally  paper  and  certificate  of  the  judges  of  election  depos- 
ited with  said  John  H.  Councilman  as  inspector  as  aforesaid,  when 
first  presented  by  said  John  H.  Councilman  to  said  board  of  can- 
vassers and  until  the  said  tally  paper  and  certificate  of  the  judges  of 

215  Volume  5. 


6170.  CONSPIRACY.  6170. 

election  had  been  unlawfully  altered  and  forged;  and  further  to  effect 
the  object  of  said  conspiracy,  said  Simeon  Coy  sent  one  William  H. 
Eden  to  said  Joseph  Becker.,  inspector  as  aforesaid,  and  to  other 
inspectors,  to  the  grand  jurors  unknown,  with  direction,  instruction 
and  request  to  said  Joseph  Becker  and  other  inspectors,  respectively, 
not  forthwith  to  return  and  deliver  the  returns  of  said  election  con- 
tained in  sealed  bags  to  the  clerk  of  the  Circuit  Court  of  the  county 
of  Marion  aforesaid,  but  to  unlawfully  bring  the  sdme  to  him,  the 
said  Simeon  Coy;  the  said  Simeon  Coy.,  Samuel  E.  Perkins,  Henry 
Spaan.,  Charles  JV.  Metcalf,  John  E.  Sullivan,  George  W.  Budd,  Albert 
T.  Beck,  John  L.  Reardon  and  said  persons  to  the  grand  jurors 
unknown,  to  whom  said  tally  papers,  poll  lists  and  certificates  of 
judges  of  election  were  so  unlawfully  surrendered  and  delivered  to 
said  John  H.  Councilman,  John  Ediaards,  Allen  Hisey,  Lorenz  Schmidt, 
Andrew  Oehler,  Stephen  Mattler,  Joseph  Becker  and  Joel  H.  Baker, 
respectively,  as  aforesaid,  not  being  then  and  there  officers  of  said 
election,  and  not  being  then  and  there  persons  authorized  by  law  to 
have  the  possession  and  custody  of  said  poll  lists,  tally  papers  and 
certificates  of  the  judges  of  election  aforesaid,  contrary  to  the  form 
of  the  statutes  of  the  United  States  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States  oj  America. 

Emory  B.  Sellers, 
Attorney  for  the  U.  S.  for  the  District  of  Indiana. 

II.  CIVIL  ACTIONS  FOR  CONSPIRACY.i 

1.  Eeqnisites  of  Complaint,  etc.  — The  (Mass.)  124;  Taylor  v.  Bidwell,  65  Cal. 

complaint,  declaration  or  petition  must  489;    Jenner   v.    Carson,    11 1    Ind.    522; 

state   facts   showing  a  combination  or  Wellington  z-.  Small,  3  Cush.  (Mass.)  145; 

confederation  on    the  part    of   the    de-  Hay  ward   v.    Draper,   3  Allen  (Mass.) 

fendants  to  do  an  unlawful  act  by  reason  551;  Rice  ^'.  Coolidge,    121   Mass.    394; 

of  which  the  civil  rights  of  the  plaintiff  Randall  v.  Hazelton,   12   Allen  (Mass.) 

were  infringed,  and   an  injury  to    his  414;  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn, 

person,  property  or  business  sustained.  233;  Jones  v.  Baker,  7  Cow.  (N.  Y.)  445; 

Schulten   v.  Bavarian  Brewing  Co.,  96  Hutchins  v.    Hutchins,   7    Hill  (N.   Y.) 

Ky.  234.     But  the  rule  is  to  allow  great  104;  Tappan  v.  Powers,  2   Hall  (N.  Y.) 

latitude   in   setting  out   the  particular  277;  Hoodz*.  Palm,  8  Pa.  St.  237;  Sheple 

acts  relied  upon  from  which  the  con-  v.  Page,  12  Vt.  519;    Barber  v.  Lesiter, 

spiracy  is  to  be  inferred,  even  so  far  as  7  C.  B.  (N.  S.)  184,  97  E.  C.  L.  182. 

to  allow  the  individual  acts  of  the  con-  And    it   is   necessary  to    aver  in  the 

spirators  to    be   averred.     Mussina   v.  complaint,    in   a   competent    form,  that 

Clark,  17  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  the  consequence  of  the   conspiracy,  or 

188.  the  acts  done  in  furtherance  thereof,  re- 

But  the  gist  of  the  action  is  not  the  suited  in  some  damage  to  the  plaintiffs, 

conspiracy  alleged  but  the  tort  commit-  Douglass  v.  Winslow,  52   N.  Y.  Super, 

ted  by  the  defendants,  and  the  damage  Ct.  439. 

resulting  therefrom.     To  charge  all  the  For  the  formal  parts  of  a  complaint, 

defendants,  joint  action  must  be  proved,  petition  or  declaration    in    a  particular 

and  the  allegation  of  a  conspiracy  may  jurisdiction     consult      the      title     CoM- 

be  a  proper  mode  of  alleging  it,  but  for  plaints,  vol.   4,   p.    1019,    and     Decla- 

any  other  purpose  it  is  wholly  imma-  rations. 

terial,  and  it  does  notchange  the  nature  For  other  forms  of  declarations,  com- 

of  the  action    or  add    anything   to  its  plaints  or  petitions  in  civil   actions  for 

legal  force  and  effect.     Caring  t/.  Fraser,  various  conspiracies  see  as  follows: 

76  Me.  37.  citing  Dunlap  v.  Glidden,  31  To    extort    money.       Hablichtel    v. 

Me.  438,  Parker  v.  Huntington,  2  Gray  Yambert,  75  Iowa  539. 

216  Volume  5. 


6170. 


CONSPIRACY. 


6170. 


1.  Falsely  to  Accuse  Plaintiff  of  Criminal  Oflfense.^ 


To  defraud  plaintiffs  of  certain  mer- 
chandise under  color  of  purchase.  Tap- 
pan  V.  Powers,  2  Hall  (N.  Y.)  277. 

To  defraud  creditor.  Penrod  v.  Mor- 
rison, 2  P.  &  W.  (Pa.)  126,  8  S.  &  R. 
(Pa.)  522;  Mott  V.  Danforth,  6  Watts 
(Pa.)  304.  See  'also  Wellington  v. 
Small,  3  Cush.  (Mass.)  145. 

By  selling  plaintiff  a  sick  cow.  New- 
ton V.  Brown,  49  Vt.  16. 

By  fraudulently  inducing  plaintiff  to 
pay  certain  notes.  Sheple  v.  Page,  12 
Vt.  519- 

See  also  the  substance  of  declara- 
tions, complaints  and  petitions  for 
similar  causes  of  action  in  the  follow- 
ing cases:  Gardner  v.  Preston,  2  Day 
(Conn.)  205;  Spaulding  z/.  Knight,  116 
Mass.  148;  Hoosac  Tunnel  Dock,  etc., 
Co.  V.  O'Brien,  137  Mass.  424;  O'Con- 
nor V.  Jefferson,  45  Minn.  162;  Jones  v. 
Morrison,  31  Minn.  140;  Verplanck  v. 
Van  Buren,  76  N.  Y.  247;  Eason  v. 
Westbrook,  2  Murph.  (6  N.  Car.)  329. 

Conspiracy  to  Slander.  —  In  an  action 
on  the  case  for  a  conspiracy  to  defame 
by  spreading  false  statements  that  the 
plaintiff  had  cheated  and  defrauded  a 
third  person  (the  words  not  being  action- 
able), and  also  by  composing  a  libellous 
statement  to  the  same  effect,  it  was  held 
in  Pennsylvania  that  the  declaration 
need  not  aver  special  damage,  the 
damage  being  implied.  Hood  z/.  Palm, 
8  Pa.  St.  237. 

But  in  Indiana  a  demurrer  to  a  com- 
plaint alleging  that  the  defendants  con- 
spired and  agreed  with  each  other  to 
slander  and  defame  the  plaintiff  by  ac- 
cusing her  of  perjury,  and  that  in  pur- 
suance of  such  conspiracy  one  of  the 
defendants  spoke  of  the  plaintiff  cer- 
tain false  and  defamatory  words,  set- 
ting them  out,  was  sustained,  such  a 
conspiracy  not  being  the  subject  of  in- 
dictment in  that  state  as  in  Pennsyl- 
vania. Severinghaus  v.  Beckman,  9 
Ind.  App.  388. 

Where  the  plaintiff  in  his  declaration 
averred  that  he  was  by  profession  a 
teacher,  that  the  defendants  conspired 
with  their  confederates  to  ruin  him  in 
his  profession,  and  in  pursuance  and  in 
execution  of  their  said  conspiracy  mali- 
ciously spoke  and  published  of  him,  in 
his  profession  as  teacher,  words,  set 
forth  at  length  with  innuendoes,  which 
imputed  to  him  the  want  of  integrity 
and  capacity,  mental  and  moral,  fol- 
lowed by  an  averment  of  special  dam- 


age, it  was  held  to  be  error  to  sustain 
a  demurrer  to  the  sufficiency  of  the  dec- 
laration.     Wildee  v.  McKee,   iii    Pa. 

St.  335. 

A  complaint  alleging  in  substance 
that  the  defendants,  maliciously  con- 
spiring together  with  intent  to  injure, 
defame  and  destroy  the  plaintiff's  char- 
acter and  to  deprive  her  of  her  means 
of  support  and  to  force  her  to  leave  the 
community  where  she  lived,  wilfully 
maliciously  and  falsely  sued  out  an  in- 
quisition of  lunacy  against  her,  whereby 
she  was  greatly  injured  in  her  reputa- 
tion and  business  as  a  dressmaker,  and 
brought  into  public  scandal  and  dis- 
grace, to  her  damage  two  thousand  dol- 
lars, states  a  good  cause  of  action. 
Smith  V.  Nippert,  76  Wis.  86.  See  also 
Smith  V.  Nippert,  79  Wis.  135. 

1.  Conspiring  to  Have  Plaintiff  In- 
dicted for  Perjtury.  —  The  declaration 
need  not  set  out  any  agreement  to  do 
any  act  in  itself  unlawful,  or  any  act 
lawful  in  itself  by  unlawful  means,  the 
gist  of  the  action  not  being  the  con- 
spiracy but  the  damage  done  the  plain- 
tiff. Parker  v.  Huntington,  2  Gray 
(Mass.)  124. 

Declarations  Held  Insufficient.  —  A 
declaration  in  two  counts,  the  first 
charging  that  the  defendants,  devising 
and  intending  unjustly,  etc.,  to  extort 
money  from  the  plaintiff,  falsely,  etc., 
conspired  to  accuse  him  of  being  the 
father  of  a  bastard,  and  in  pursuance 
thereof  maliciously  threatened  to  accuse 
him  thereof  and  to  cause  a  criminal 
prosecution  to  be  commenced  against 
him  therefor,  whereby  they  procured 
from  the  plaintiff  a  large  sum  of  money ; 
the  second  count  being  like  the  first,  ex- 
cept that  it  charged  that  the  intent  of 
the  defendants  was  to  deprive  the  plain- 
tiff of  his  good  name  and  subject  him 
without  cause  to  the  punishment  pre- 
scribed by  law  for  bastardy,  and  that 
they  threatened  to  cause  bastardy  pro- 
ceedings to  be  carried  on  against  him, 
was  held  fatally  defective  in  that  it 
failed  to  state  that  the  charge  was  false 
or  that  it  was  known  to  the  defendants 
to  be  false,  and  did  not  allege  such  facts 
and  circumstances  as  would  constitute 
fraud.     Wright  v.  Bourdon,  50  Vt.  494. 

For  substance  of  complaint  for  con- 
spiracy to  charge  plaintiff  with  arson 
held  insufficient  to  state  a  cause  of  action 
see  Taylor  v.  Bidwell,  65  Cal.  489. 

Declarations     Held     Sufficient.  —  For 


217 


Volume  5. 


6170.  CONSPIRACY.  6170. 

Form  No.  6170. 

(Precedent  in  Garing  v.  Frazer,  76  Me.  38.) 

[(^Commencement.yy-  In  a  plea  of  the  case,  for  that  the  said  plain- 
tiff being  a  good,  true  and  faithful  citizen  of  this  state,  and  having 
behaved  and  conducted  herself  as  such  from  her  nativity  to  the 
present  time,  and  so  among  her  neighbors  as  well  as  others  was  known 
and  reputed.  Yet  the  said  defendants,  not  ignorant  of  the  premises, 
but  contriving  and  maliciously  intending  to  hurt,  wound  and  injure 
the  plaintiff,  and  her  unjustly  to  vex,  molest  and  disturb,  and  to  cause 
her  to  suffer  punishment  and  to  be  fined,  and  also  imprisoned  for  a 
long  space  of  time,  and  thus  to  be  .deprived  of  her  liberty,  and 
thereby  to  impoverish,  oppress  and  wholly  ruin  her;  did  at  Portland, 
in  the  county  of  Cumberland  and  state  of  Maine,  on  the  second  day  of 
January,  a.  d.  \^83,  maliciously  and  wickedly  conspire,  combine, 
confederate  and  agree  together  amongst  themselves  to  falsely  accuse, 
and  by  means  of  false  testimony,  to  procure  the  plaintiff  to  be  in- 
dicted and  convicted  of  the  crime  of  maintaining  a  common  nuisance, 
an  indictable  offense  by  the  laws  of  the  state  of  Maine,  and  punished 
by  a  fine  and  imprisonment;  and  did  then  and  there,  at  \\\^  January 
term  of  the  Superior  Court,  within  and  for  the  county  of  Cumberland, 
held  at  Portland,  aforesaid,  on  \h&  first  Tuesday  oi  January,  a.  d.  i8^5, 
by  false,  fabricated  and  perjured  testimony,  accuse  the  said  plaintiff 
of  the  crime  aforesaid  before  the  grand  jury  of  the  county  aforesaid, 
whereby  said  grand  jury  returned  into  said  court  a  certain  bill  of  in- 
dictment in  words  and  figures  as  follows,  viz:  (Jlere  was  set  out  the 
indictment^,  which  said  indictment  the  court  aforesaid  caused  to  be 
read,  and  caused  said  plaintiff  to  answer  thereto  in  said  court  before 
a  jury  of  the  court  aforesaid  duly  impaneled  to  try  said  plaintiff  on 
said  indictment  procured  as  aforesaid,  and  said  plaintiff  was  put  on 
her  trial  on  said  indictment  in  said  court  on  the  nineteenth  day  of 
January  aforesaid,  and  the  said  defendants  then  and  there  at  said 
trial  before  the  court  and  jury  aforesaid,  gave  said  false,  frabricated 
and  perjured  testimony  against  said  plaintiff  and  in  support  of  the 
allegations  contained  in  said  indictment  procured  as  aforesaid;  [and 
the  said  plaintiff  was  in  due  manner  and  according  to  due  course  of 
law  by  the  verdict  of  said  jury  acquitted  of  the  said  crime  charged 
in  the  said  indictment,  and  the  said  court  thereupon  ordered  that 
the  said  plaintiff  be  discharged,  j^  as  by  the  records  and  proceedings 
remaining  in  said  court  appears. 

substance  of  declaration  in  action  for  cause  him   to  be  removed  from  office 

conspiracy  to  falsely  charge  an  unmar-  see  Griffith  v.  Ogle,  i  Binn.  (Pa.)  172. 

ried  woman  with  being  pregnant  of  a  In  this  case  it  was  held  unnecessary  to 

bastard  see  Haldeman  v.  Martin,  10  Pa.  aver  special  damage,  as  the  law  implies 

St.  369.     In   this  case  it  was  held  un-  damage  from  such  a  conspiracy, 

necessary  to  aver  that  the  reports  and  See  also  Skinner  v.  Gunton,  i  Saund. 

charges  were  made    falsely  and  mali-  228. 

ciously  or  to  set  forth  the  words  spoken.  1.  For  the  commencement  and  con- 
For  substance  of  a  declaration  in  an  elusion  of  the  declaration  in  Maine  con- 
action  on  the  case  in  the  nature  of  a  suit  the  title  Declarations. 
writ  of  conspiracy  charging  the  defend-  2.  The  words  enclosed  by  [  ]  are  sup- 
ants  with  conspiring  to  falsely  accuse  a  plied  in  place  of  an  allegation  that  the 
judge  with  taking  illegal  fees  and  to  defendant  was   found   guilty,  and   the 

218  Volume  5. 


6171.  CONSPIRACY.  6171. 

By  means  of  the  premises  aforesaid  and  tiie  said  false,  fabricated 
and  perjured  testimony  given  in  said  court  as  aforesaid,  tiie  plaintiff 
has  suffered  great  anxiety  and  pain  of  body  and  mind,  and  has  been 
forced  and  obliged  to  lay  out  and  expend  divers  sums  of  money  in 
the  whole  amounting  to  a  large  sum  of  money,  to  wit,  six  hundred 
and  fifty  dollars,  in  and  about  defending  herself  in  the^premises,  and 
has  been  greatly  hindered  and  prevented  by  reason  of  the  premises 
from  transacting  her  lawful  and  legal  affairs  for  the  space  of  twenty- 
six  days,  and  also  by  reason  and  means  of  the  said  premises  she,  the 
plaintiff,  has  been,  and  is,  otherwise  greatly  injured  in  credit  and 
circumstances.  To  the  damage  of  the  said  plaintiff  (as  she  says) 
the  sum  oi  fifteen  thousand  dollars.      \{ConclusionJ)Y 

2.  To  Cheat  and  Defraud. 

Form  No.  6171. 
(Precedent  in  Boston  v.  Simmons,  150  Mass.  461.)* 

\The  City  of  Boston  )  o  or  lu    c  j.  r-^ 

against  I  "^"f^^^y  ^"P-  Ct. 

William  A.  Simmons  and  James  Wilson.  )  Plaintiff's  Declaration.]3 

And  the  plaintiff  says  that  at  the  time  of  the  acts  and  doings  here- 
inafter set  forth  it  was,  and  now  is,  a  municipal  corporation  duly 
established  by  law,  in  the  county  of  Suffolk,  in  this  Commotrnfealth, 
and  was  duly  authorized  by  law  to  purchase  land  on  which  to  con- 
struct a  reservoir  to  be  used  in  supplying  said  city  and  its  inhabitants 
with  pure  water. 

That  the  defendant  Simmons  was  a  member  and  the  chairman  of 
the  Boston  Water  Board,  a  board  duly  established  by  law,  and  author- 
ized and  empowered  to  purchase  for  the  plaintiff  land  to  be  used  for 
the  purpose  aforesaid.  That  said  Simmons,  by  virtue  of  his  said 
official  position,  knew  and  had  a  part  and  share  in  determining  the 
action  of  said  Water  Board,  under  said  authority,  in  making  such 
purchase;  that  said  defendant  Wilson  well  knew  of  said  position, 
knowledge,  and  authority  of  said  Simmons;  and  that  said  defendants 
corruptly  took  advantage  of  said  position,  knowledge,  and  authority, 
and,  intending  and  contriving  to  cheat  and  defraud  the  plaintiff,  did 
corruptly  and  fraudulently  conspire  and  agree  with  each  other  that 
the  said  Simmons  should  impart  to  said  Wilson  knowledge  of  the 
doings  of  the  said  Water  Board  in  the  selection  of  said  land,  and  of 
the  piece  of  land  which  said  board  should  consider  suitable  for  a  site 
for  said  reservoir,  did  conspire  and  agree  that  said  Wilson  should 
become  the  purchaser  and  owner  of  the  lot  of  land  which  should  be 

court,  on  motion  and  hearing  thereon,  1.  See  supra,  note  i,  p.  218. 

set  aside  the  verdict  because  of  the  false  2.  This  declaration  was  held  to  dis- 

testimony,   and   thereafter   the   county  close  a  good  cause  of  action  against  both 

attorney  entered  a  nolle  prosequi  to  the  defendants  for  the  injury  sustained  by 

indictment  on  the  records.     The  court  the  city. 

held  that  a  simple  nol.  pros,   was   not  3,  The  words  enclosed  by  [  1  will  not 

sufficient  to  entitle  the  plaintiff  to  main-  be  found  in  the  reported  case,  but  have 

tain   the  action.     The  declaration  has  been   added   to   render  the  form  com- 

therefore  been  changed  as  above.  plete. 

219  Volume  5. 


6172.  CONSPIRACY.  6172. 

so  considered  suitable  for  a  site  for  said  reservoir,  did  conspire  and 
agree  that  said  Water  Board,  acting  for  the  plaintiff,  should  purchase 
the  said  land  for  the  plaintiff  from  said  Wilson,  at  an  advance  or 
increase  above  the  price  paid  therefor  by  said  Wilson,  and  did  so  con- 
spire and  agree  to  divide  the  profits  of  said  transaction  between 
themselves. 

And  the  plaintiff  further  says,  that  in  consequence  and  pursuance 
of  said  corrupt  and  fraudulent  conspiracy  and  agreement,  said  Sim- 
mons did  impart  to  said  Wilson  said  knowledge,  and  that  said  Water 
Board  had  considered  a  certain  lot  of  land  suitable  for  a  site  for  said 
reservoir  (which  said  Water  Board  had  in  fact  done);  that  said 
Wilson  did  thereupon  purchase  said  lot  of  land  (more  particularly 
described  in  a  certain  deed  thereof  to  the  plaintiff,  which  will  be  pro- 
duced if  required),  and  thereafter  said  Water  Board,  acting  in  behalf 
of  the  plaintiff,  being  thereto  influenced  by  said  Simmons,  did  pur- 
chase said  land  for  said  city  to  pay  therefor  the  sum  of  ^l,93Jf.,  being 
in  excess  over  the  sum  paid  therefor  by  said  Wilson,  and  over  the 
price  at  which  said  Water  Board  could  have  purchased  the  same  but 
for  said  corrupt  and  wrongful  agreement  and  acts  of  said  defendants, 
and  purchase  of  said  Wilson,  by  the  sum  of  ^0,Jf88.  And  said 
defendants  did  divide  the  profits  of  said  fraudulent  transaction 
between  themselves. 

And  the  plaintiff  further  says,  that  by  said  corrupt  and  fraudulent 
conspiracy,  agreement,  and  acts  of  said  defendants,  the  plaintiff  was 
unjustly,  unlawfully  and  wrongfully  deprived,  defrauded,  and  cheated 
of  said  sum  of  $50,488. 

[A.  J.  Bailey,  for  the  Plaintiff. ]i 

3.  To  Hinder  Trade  or  Commerce.^ 

a.  By  Boycotting  Manufacturer. 

Form  No,  6172. 

(Precedent  in  Olive  v.  Van  Patten,  7  Tex.  Civ.  App.  630.)' 

[The  State  of  Texas,      \  District  Court, 
County  of  McLennan.  \  January  Term,  a.  d.  iS^^. 
To  the  Honorable  Judge  of  said  Court: 

The  petition  oi  John  Olive  a.nd  August  Sternenberg,  of  Waco,  in  said 
county  of  McLennan,  plaintiffs,  against  A.  Van  Patten,  John  Doe  and 
Richard  Roe,  of  said  city  and  county,  defendants,  respectfully 
shows: 

That  at  the  dates  of  the  transactions  hereinafter  mentioned,  the 

1.  See  supra,  note  3,  p.  219.  Oil  Co.,  106  N.  Y  669,  12  N.  E.  Rep.  825. 

2.  For  other  forms  of  complaints  for  To  hiss  an  actor  and  ruin  him  in  his 
conspiracies  to  interfere  with  trade,  profession.  Gregory  v.  Brunswick,  6 
etc.,  see  as  follows:  M.  &  G.  205,  46  E.  C.   L.   205,  6  Scott 

To  control  the  coal  trade.    Murray  v.  (N.  R.)  809. 

McGarigle,  69  Wis.  483.  To  cause  minister  to  lose    his    posi- 

By  corporation  to  destroy  business  of  tion.     Fisher  v.  Schuri,  73  Wis.  370. 

rival  corporation  by  inducing  customers  3.  It  was  held    on   the    authority  of 

of   latter   to    cease    dealing    with    him.  Delz  v.  Winfree,  80  Tex.  400,  that  this 

Buffalo  Lubricating  Oil  Co.  v.  Standard  petition  stated  a  good  cause  of  action. 

220  Volume  5. 


6172.  CONSPIRACY.  6172. 

plaintiffs  were,  and  still  are  partners  in  business,  under  the  firm 
name  and  style  of  Olive  e^'  Sternenberg;  and  that]^  on  the  16th  day  of 
May.,  1&88,  and  for  a  long  time  prior  thereto,  plaintiffs  were  owners 
of  a  large  and  extensive  sawmill  in  Hardin  county,  Tex.,  capable  of 
cutting  and  manufacturing  twelve  million  feet  of  lumber  annually; 
of  planing  mills  used  in  connection  with  the  sawmill;  ef  six  miles  of 
well  equipped  tram  railway,  leading  from  the  mill  to  their  timber 
lands,  suitable  to  carry  logs  to  the  mill;  of  5,i9(?C>  acres  of  heavy  pine 
timber,  suitable  for  the  manufacture  of  lumber,  near  the  mills,  from 
which  the  timber  had  not  been  cut;  and  of  IfiOO  acres  of  heavy 
timbered  land  contiguous  to  the  mills,  from  which  only  a  part  of  the 
timber  had  been  cut,  all  suitable  for  first  class  lumber.  The  plant 
was  worth  two  hundred  and  seventy  thousand  ^o\\d,x%\  the  8,000  acres 
of  timbered  land  worth  sixty-four  thousand  dollars;  and  the  IfiOO 
acres,  fourteen  thousand  dollars.  Of  the  twelve  million  feet  of  lumber, 
the  annual  output  plaintiffs  were  able  to  make,  and  were  making, 
with  their  mills,  and  preparing  for  market,  they  were  able  to  plane 
upon  their  planing  mills  annually  six  million  feet  of  dressed  lumber, 
and  all  the  lumber  manufactured  they  were  able  to  sell  at  advan- 
tageous prices  in  the  markets  of  the  state  and  elsewhere,  making  an 
annual  profit  of  %100,000,  up  to  the  time  of  the  interference  of  the 
defendants. 

That  defendants,  each  being  engaged  in  the  lumber  business  in 
Texas,  envying  the  prosperity  of  plaintiffs  and  seeking  to  oppress, 
boycott  and  ruin  them  and  to  deter  them  from  selling  to  actual  con- 
sumers, and  to  dissuade  and  influence  dealers  in  lumber  in  Texas  vtho 
had  been  in  the  habit  of  purchasing  lumber  from  plaintiffs,  and 
with  a  view  to  advance  their  own  pecuniary  and  selfish  interest,  on 
May  16,  iS88,  entered  into  a  trust,  styled  "  The  Lumber  Dealers' 
Association  of  Texas,"  the  object  of  which  was  to  confederate  to- 
gether for  the  purpose  of  maintaining  a  high  price  for  lumber  against 
citizens  of  the  state  as  consumers,  and  to  conspire  against  legiti- 
mate prices  on  lumber,  and  against  all  persons  who  sought  to  reach  the 
demands  of  legitimate  trade  by  legitimate  methods,  and  to  force,  by 
such  unlawful  confederacy  and  conspiracy,  all  mill  men  and  manu- 
facturers of  lumber  into  such  unlawful  combination  or  trust,  so  that 
the  lumber  business  on  the  part  of  mill  men  or  manufacturers  should 
present  a  solid  array  against  the  consumer  and  retail  dealer,  and 
thus  control,  by  means  of  such  trust,  extravagantly  high  prices  for 
lumber,  for  the  enrichment  of  themselves,  and  to  the  impoverish- 
ment of  the  consumer  and  small  dealer.  And  so  it  is  charged  that 
defendants  became  guilty  of  a  conspiracy  against  the  public,  as  well 
as  plaintiffs,  such  as  is  unlawful,  in  all  its  acts  in  furtherance  thereof. 
That  in  furtherance  of  this  unlawful  design,  defendants,  as  members 
of  the  association,  and  as  chief  members  thereof,  assembled  together 
about  the  date  mentioned,  and  adopted  and  published  by-laws  for 
carrying  out  its  unlawful  designs,  which  by-laws  provided  as  follows: 
"  Sec.  13.  When  any  manufacturer  or  wholesale  dealer,  or  his  agent 
or  agents,  shall  sell  to  any  person  not  a  dealer,  excepting  railroad 

1.  The  words  enclosed  by  [  ]  will  not  be  found  in  the  reported  case,  but  have 
been  added  to  render  the  form  complete. 

221  Volume  5. 


6172.  CONSPIRACY.  6172. 

companies,  and  at  such  points  where  there  are  no  dealers,  such  sales 
shall  be  reported  to  the  secretary,  and  he  shall  notify  the  members 
of  the  association,  whereupon  it  shall  be  the  duty  of  all  members  of 
this  association  to  discontinue  their  patronage  with  such  manufac- 
turer or  wholesale  dealer:  provided,  however,  that  if  said  manu- 
facturer or  wholesale  dealer  shall  promise  and  furnish  a  guaranty 
to  the  secretary  of  this  association  that  he  will  not  again  sell  to  any 
person  not  a  dealer,  notice  shall  be  sent  by  the  secretary  to  all  mem- 
bers of  the  association,  when  said  manufacturer  or  wholesale  dealer 
shall  again  be  considered  in  good  repute.  Sec.  14.  No  dealer  belong- 
ing to  this  association  shall  ship  to  any  point  where  any  other  mem- 
ber may  be  engaged  in  the  retail  trade,  at  less  than  the  regular  price 
at  that  point." 

That  plaintiffs  having  incurred  the  displeasure  of  said  trust,  of 
which  they  were  not  members,  because  they  had  seen  fit,  in  the  exer- 
cise of  their  rights  as  citizens,  to  sell  lumber  to  others  than  dealers, 
or  for  some  other  cause  unknown  to  plaintiffs,  defendants,  pursuant 
to  the  by-laws  quoted,  did,  it  is  alleged,  on  or  about  the  10th  day  of 
September,  1S88,  unlawfully  and  maliciously,  and  with  intent  to 
oppress  and  ruin  petitioners  and  other  mill  men  of  Texas  not  mem- 
bers of  their  unlawful  trust,  confederacy,  and  conspiracy,  issue,  pro- 
mulgate, print,  distribute,  and  mail  and  deliver,  to  nearly  every 
lumber  dealer  in  Texas,  and  especially  to  those  with  whom  peti- 
tioners had  theretofore  been  dealing  and  selling  lumber  to,  a  circular 
in  form  as  follows:  (^Here  ^vas  set  out  a  copy  of  the  circular  letter'), 
which,  when  received  by  such  lumber  dealers  to  whom  same  were 
mailed  and  delivered,  had  the  effect  —  because  many  of  them  were 
co-conspirators  with  defendants,  and  belonging  to  said  organized 
conspiracy  —  to  cause  all  of  such  lumber  dealers  and  sellers  of  lum- 
ber to  refuse  to  make  further  purchases  from  your  petitioners, 
thereby  causing  a  complete  cessation  of  their  former  prosperous 
trade  and  business  from  then  until  the  present  time,  and  causing 
your  petitioners,  to  prevent  their  absolute  ruin  and  failure  of  busi- 
ness, to  resort  to  a  trade  with  the  consumer,  direct,  and  almost 
exclusively.  And  your  petitioners  aver  that  the  effect  of  the 
malicious  issuance  of  said  circular,  and  the  distribution  of  same,  as 
aforesaid,  coupled  with  said  trust  and  conspiracy  aforesaid,  caused 
them  damage,  in  loss  of  sales  of  lumber,  from  the  date  thereof  to 
the  present  time,  in  the  way  of  net  profits  arising  from  such  sales, 
and  affected  their  business,  and  retarded  same,  and  the  probable  and 
material  effect  thereof  will  result  in  damages  to  them  and  their  busi- 
ness in  the  future,  which  cannot  be  overcome  or  prevented  by 
petitioners,  to  the  extent  of  one  hundred  thousand  dollars,  and  in  which 
sum  petitioners  have  been  damaged  by  defendants,  by  the  wrongful, 
wilful  and  malicious  acts  of  defendants,  in  the  manner  and  by  the 
means  aforesaid,  persisted  in  and  kept  up  from  May  16,  1S88,  to  the 
present  time,  by  sundry  acts  and  conduct  of  defendants,  carrying 
out  the  general  designs  of  their  unlawful  trust,  confederacy  and 
conspiracy. 

And  by  reason  of  the  premises,  and  by  reason  of  the  unlawful 
trust,  confederacy,  and  conspiracy,  and  malicious  conduct  and  acts 

223  Volume  5. 


6 1 73.  CONSPIRACY.  6 1 73. 

of  the  defendants  aforesaid,  petitioners  have  been  further  damaged 
in  the  sum  of  twenty-five  thousand  dollars,  in  addition  to  their  afore- 
said damages  of  %100fiOO,  and  which  sum  of  ^5,000  they  claim  as 
exemplary  damages.  Premises  considered,  your  petitioners  sue  and 
pray  that  defendants  be  cited,  in  terms  of  law,  to  appear  and  answer 
this  petition;  and,  on  a  final  hearing,  petitioners  pray^ for  judgment 
against  defendants  for  the  sum  of  one  hundred  and  twenty-five  thousand 
dollars,  their  actual  and  exemplary  damages  aforesaid,  and  for 
injunction  restraining  defendants  in  the  further  perpetration  and 
continuation  of  their  wrongful  and  unlawful  acts,  and  for  all  costs  of 
this  suit,  and  for  general  and  special  relief;  and,  as  in  duty  bound, 
will  ever  pray,  etc. 

[Alexander  &^  Campbell,  Plaintiffs'  Attorneys.]^ 

b.  By  Extorting  Money  from  Employer  by  Threatening  to  Induce 
Workmen  to  Leave  his  Employ. 

Form  No.  6173. 
(Precedent  in  Carew  v.  Rutherford,  106  Mass.  2.)' 

[{Caption  as  in  Form  No.  6111?)Y 

And  the  plaintiff  says  he  was  carrying  on  the  business  of  cutting 
freestone  in  said  Boston,  and  employed  a  great  many  workmen,  and 
had  entered  into  contracts  with  builders  to  furnish  them  with  such 
stone  in  large  quantities;  and  the  defendants,  conspiring  and  con- 
federating together  to  oppress  and  extort  money  from  the  plaintiff, 
and  pretending  that  the  plaintiff  had  allowed  some  of  the  said 
builders,  with  whom  he  had  made  contracts  as  aforesaid,  to  withdraw 
from  the  plaintiff's  shop  a  part  of  the  work  he  had  so  contracted  to 
do,  and  to  procure  the  same  to  be  done  by  other  contractors  out  of 
the  state,  caused  what  they  called  a  vote  of  the  Journeymen  Free- 
stone Cutters'  Association  of  Boston  and  vicinity  (named  as  defend- 
ants in  the  writ)  to  be  passed  at  a  meeting  of  said  association,  and 
to  be  written  out  upon  records  of  said  association,  to  the  effect  that 
a  fine  of  %500  was  levied  upon  the  plaintiff  for  allowing  said  builders 
to  withdraw  said  work  and  procure  it  to  be  done  out  of  the  state  as 
aforesaid;  and  the  defendants  caused  said  vote  to  be  communicated 
and  read  to  the  plaintiff,  and  threatened  the  plaintiff  that  unless  he 
paid  to  them  said  fine  of  %500  they  would  by  the  power  of  said  asso- 
ciation cause  a  great  number  of  the  workmen  employed  by  the  plain- 
tiff as  aforesaid  to  leave  his  premises;  and  the  plaintiff  refused  to  pay 
said  %500,  and  the  defendant  caused  a  great  number,  to  wit,  twelve,  of 
the  workmen  employed  by  the  plaintiff  as  aforesaid  to  leave  his 
service,  and  said  workmen  left  his  service  solely  for  the  reason  that 

1.  The  words  enclosed  by  and  to  be  settled  by  the  parlies  without  further 
supplied  within  [  ]  will  not  be  found  trial.  In  sustaining  the  exceptions  the 
in  the  reported  case,  but  have  been  court  held  that  the  money  was  illegally 
added  to  render  the  form  complete.  demanded   from  the  plaintiff  (who  was 

2.  Judgment    was   rendered   on   this  not  a  member  of  the  association)  and 
declaration  for  the  defendants  and  the  that  he  might  recover  the  same  with 
plaintiff  alleged  exceptions,  which  were  damages  in  an  action  of  tort, 
sustained,  but  the  case  was  afterward 

223  Volume  5. 


6174.  CONSPIRACY.  6174. 

he  refused  to  pay  said  $506)  demanded  of  him  as  aforesaid,  and  at  the 
instigation  of  the  defendants;  and  the  defendants  thereafter 
threatened  the  plaintiff  that  unless  he  paid  to  them  said  fine  of  %500 
they  would  by  the  power  of  said  association  prevent  the  plaintiff 
from  obtaining  suitable  workmen  for  the  carrying  on  of  his  said  busi- 
ness; and  the  defendants  did  prevent  the  plaintiff  from  so  doing,  for 
a  long  time,  and  until  the  plaintiff  paid  to  the  defendants  said  fine  of 
'^00  on  the  26th  day  of  August,  i868;  and  the  plaintiff  says  the 
defendants  extorted  said  sum  of  ^00  from  him  by  means  of  said 
threats,  and  that  he  paid  the  same  to  the  defendants  by  compulsion 
of  the  defendants,  against  his  will,  to  avert  the  injury  threatened  to 
his  business  as  aforesaid. 

[£.  F.  Hodges  (Sr*  J.  F.  Barrett, 

Attorneys  for  the  Plaintiff.  J 

c.  By  Injuring  Credit  of  Retail  Dealer  and  Preventing  his  Obtaining 

Supplies. 

Form  No.  6174. 

(Precedent  in  Schulten  v.  Bavarian  Brewing  Co.,  96  Ky.  225.)' 

\Kenton  Circuit  Court. 
Clem.  Schulten,  plaintiff,  ^ 

^S^'"^^  I  Petition  V' 

The  Bavarian  Brewing  Company  and  |  '  J 

The  John  Hauck  Brewing  Company,  defendants,  j 

The  plaintiff  Clem.  Schulten  says,  that  at  the  time  of  the  doing  of 
the  wrongs  and  injuries  hereinafter  set  forth,  and  for  many  years 
thereafter,  the  defendant.  The  Bavarian  Brewing  Cofnpany,  was  a  cor- 
poration duly  organized  under  the  general  statute  laws  of  Kentucky, 
and  the  defendant.  The  John  Hauck  Brewing  Company,  was  a  corpora- 
tion duly  organized  under  the  statute  laws  of  Ohio,  both  for  the  sole 
purpose  of  brewing  and  selling  malt  liquors,  and  were  members  of  a 
certain  unlawful  combination,  consisting  of  all  the  brewers  of  the 
city  of  Cincinnati,  Ohio,  and  Covington  and  Newport,  Kentucky,  and  the 
vicinity;  all  the  members  whereof  were  and  are  in  conspiracy  with 

1.  It  is  not  unlawful   for  wholesale  spiracy  among  cattle  dealers  to  his  in- 

dealers  to  protect  themselves  against  jury  went   further  than   to  charge  that 

insolvent  and  dishonest  customers,  and  the  defendants   refused   to  sell  to  him 

to  compel  such  customers  to  pay  their  and  charged  that  they  not  only  did  that 

debts  to  them,  and  for  this  purpose  and  but  that  they  induced  a  third  person  to 

for  the  purpose  of  otherwise  assisting  do  so,  and  it  did  not   appear  from  the 

each  other  in  their  business  they  may  petition  that  their  interference  with  the 

agree    among  themselves    not  to  deal  business  of  the   plaintiff   was  done  to 

with  such  customers,  and  hence  a  peti-  serve  any  legitimate   purpose  of  their 

tion  by  a  retail  dealer  setting  forth  such  own,   but  that   it   was    done   wantonly 

an  agreement  made  in  good  faith  does  and  maliciously,  and  that  it  caused,  as 

not  state  a  cause  of  action   for  an  in-  they  intended  it  should,  pecuniary  loss 

jury  resulting  therefrom  to  such  dealer,  to  him, the  petition  alleges  a  good  cause 

Schulten  v.  Bavarian  Brewing  Co.,  96  of  action.     Delz  i/.  Winfree,  8oTex.  400. 

Ky.   224;  Delz  v.  Winfree,  6  Tex.  Civ.  2.  The  words  enclosed  by  [  ]  will  not 

App.  II,  80  Tex.    400.     But   where   a  be  found  in  the  reported  case,  but  have 

petition  by  a  butcher  charging  a  con-  been  added  to  render  the  form  complete. 

234  Volume  5. 


61 74.  CONSPIRACY.  6 1 74. 

each  other,  and  other  persons,  to  the  plaintiff  unknown,  to  prevent 
the  obtaining  of  any  malt  liquor  by  any  retail  dealer  therein,  who 
might  be  in  debt  or  alleged  to  be  in  debt  to  any  member  of  said  com- 
bination, and  thereby  to  injure  and  destroy  his  business,  and  unlaw- 
fully compel  him  to  pay  such  debt  or  alleged  debt,  without  any  judicial 
ascertainment  or  due  process  of  law.  And  the  plaintiff  says  that  at 
the  same  time  he  was  a  retail  vendor  of  malt  liquors  in  the  city  of 
Covington,  Kentucky,  duly  licensed  as  such  and  carrying  on  said  busi- 
ness, as  the  sole  means  of  subsistence  for  himself  and  his  wife  and 
five  children,  and  was  therein  wholly  dependent  for  his  supplies  of 
such  liquors  upon  the  defendants  and  other  members  of  said  com- 
bination, and  was  able,  ready  and  willing  to  pay  for  such  supplies,  and 
tendering  and  offering  to  purchase  the  same  for  cash  of  the  defend- 
ants and  other  members  of  said  combination.  Yet  on  the  twenty- 
sei>enth  (\a.Y  oi  November,  i89i,  the  defendants  and  other  members  of 
the  said  combination  to  the  plaintiff  unknown,  intending  to  injure  the 
plaintiff  and  destroy  his  said  business  and  to  prevent  his  earning  a 
subsistence  for  himself  or  his  family,  and  to  unlawfully  and  oppress- 
ively coerce  him  into  paying  to  the  said  Bavarian  Brewing  Company 
the  sum  of  one  hundred  and  eighty-four  dollars  dLud  Jifty  cents,  then 
falsely  alleged  to  be  owing  by  him  to  it  [whereas  in  truth  and  in  fact 
the  plaintiff  was  not  indebted  to  the  said  defendant  in  the  said  sum 
nor  in  any  sum  whatever],^  did  wrongfully  and  maliciously  combine, 
conspire  and  confederate  together  so  to  do,  and  therein  to,  and  they 
then  did,  wrongfully,  falsely,  libelously  and  maliciously  write,  utter 
and  publish  to  each  other  and  to  all  the  members  of  the  said  combina- 
tion, and  others  to  the  plaintiff  unknown,  that  plaintiff  was  indebted 
as  aforesaid,  and  so  to  prevent,  and  they  did  thereby  prevent,  the 
plaintiff  from  obtaining  any  supplies  of  malt  liquors,  and  from  carrying 
on  his  said  business,  and  by  means  of  the  premises  the  plaintiff's  said 
business  then  was  and  remains  injured  and  wholly  destroyed,  to  his 
damage  in  the  sum  of  ten  thousand  doWdits.  Wherefore  he  prays  judg- 
ment for  ten  thousand  dollars  damages,  and  for  costs  and  all  proper 
relief. 

[Jeremiah  Mason,  Attorney.  J^ 

1.  The  petition  was  held  insufficient  case    in    the    nature   of  a   conspiracy 

in  that  it  did  not  aver  specifically  that  charging  that  the  defendants  combined 

the  plaintiff  was  not  indebted  to  the  de-  to   injure    the    plaintiff's    credit,    it    is 

fendant  in  the  sum   named.     The  alle-  necessary  for  the   plaintiff  to  aver,  in 

gation   by   inference   that  the   plaintiff  his   declaration,  tbe   means  by  which 

was  not  so  indebted,  being  a  mere  con-  such  injury  was  intended  to  be  effected, 

elusion  of  the  plaintiff,  is  not  sufficient.  Setzar  v.  Wilson,  4  Ired.  L.  (26  N.  Car.) 

The  words   in   [   ]  have  been  supplied  501. 

in  accordance  with  the  judgment  of  the        2.  The  words  enclosed  by  [  ]  will  not 

court.  be  found  in  the  reported  case,  but  have 

Alleging  Means.  —  In  an  action  on  the  been  added  to  render  the  form  complete. 
5  E.  of  F.  P.  —  15.                        325  Volume  5. 


CONSTABLES. 

See  the  GENERAL  INDEX  to  this  work. 


CONTEMPT. 

By  Francis  X.  Hennessy. 

I.  PROCEEDINGS  AGAINST  CONTEMNOR,  228. 
1.  Preliminary  Proceedings,  229. 

a.  Affidavit,  229. 

(i)  For  Contemptuous  Publication,  229. 
(2)  For  Failure  to  Obey  Process  or  Orders,  231. 
{a)  Injunction,  231. 

aa.  Against  Board  of  Aldermen,  231. 
bb.    To  Restrain  Operation  of  Mine,  232. 
(J))  Judgment,  234. 
{/)  Mandamus,  235. 

aa.  Directed  to  Canvassers  of  Elections, 

235- 
bb.  Directed  to  Judge,  239, 
(^)  Orders,  240. 

aa.  For  Examination,,  240, 

{ad)  Of  Party  Before  Trial,  240. 
(bby  In    Supplementary   Proceed- 
ings, 241. 
bb.    To  Pay  Money  to  Receiver,  242. 
{e)  Subpoena,  243. 

b.  fnformation  for  Contemptuous  Publication,  244. 

c.  Motion  for  Attachment  for  Failure  to  Obey,  246. 

(i)  Injunction,  246. 
(2)  Judgment,  249. 

d.  Petition  for  Attachment  for  Failure  to  Obey  Injunction^ 

249. 
a.   Order  to  Show  Cause,  250, 

a.   For  Contemptuous  Petition  for  Rehearing,  250. 
h.  For  Contemptuous  Publication,  251. 
c.  For  Failure  to  Obey,  253. 

(i)  Order  for  Examination  Before  Trial,  254. 
(  (2)  Summons,  254. 

8.  Attachment,  255. 

a.  Order  that  Attachment  Issue,  255. 

b.  Attachment  Writ,  256, 

226  Volume  5. 


CONTEMPT. 

(i)  In  General,  256. 

(2)  For  Contempt  before  Arbitrators,  259. 

(3)  For  Contemptuous  Affidavit  for  Change  of  Venue^ 

259- 

(4)  For  Contemptuous  Publication,  262. 

(5)  For  Failure  to  Obey,  263. 

(a)    Injunction,  264. 
ip)    Mandamus,  265. 
{/)    Order,  265. 
{d')  Subpoena,  266. 

aa.  In  Civil  Case,  266. 
»  (arz)  Before  Court  of  Record,  266. 

(^^  )  Before  Justice  of  Peace,  269. 
^^.  In  Criminal  Case,  270. 

(<afdf)  Before  Court,  270. 
(^^)  Before  Grand  Jury,  270. 
(^r)  Before    County  Attorney    in 
Liquor  Case,  271. 
cc.  Before  United  States  Senate^  272. 
(^)   Venire,  273. 

4.  Interrogatories  to  Contemnor,  273. 

a.  Order  Directing  Filing,  273. 
^.   Interrogatories,  275, 

(i)  ^t7r  Violating  Injunction,  275. 

(2)  For  Disobeying  Mandamus,  276. 

5.  Proceedings  Connected  with  Reference,  277. 

a.  Order  of  Reference,  277. 
^.  Referee^ s  Report,  278. 

6.  Order  of  Conviction,  281. 

d!.  ^(j?r  Contempt  in  Facie  Curict,  282. 
^.  T^i'r  Contemptuous  Publication,  287, 
<:.  7^c»r  Failure  to  Obey,  288. 

(i)  Decree  for  Payment  of  Alimony^  288. 
,  (2)  Injunction,  290. 

(3)  Mandamus,  292. 
^.    C^^«  Report  of  Referee,  295. 

7.  Commitment,  298. 

a.  /T'r  Contempt  in  Facie  Cur  ice,  298. 
^.  ^^r  Failure  to  Obey,  301. 

(i)  Decree  in  Chancery,  301. 

(2)  Injunction,  302. 

(3)  C>r</^r  /^  /'ay  Money  to  Receiver^  303. 
^.  ^  Canal  Commissioners,  304. 

8.  Criminal  Prosecution,  305. 

II.  CONTEMNOR'S  DEFENSES  AND  REMEDIES,   308. 
1.  Answers,  308. 

d!.    Ti?  7?z^/^  /^  5^<7a/  Cd!«J<r  ^'r  Attachment,  308. 
^.    JV?  Interrogatories,  308. 
».  Petition  for  Revocation  of  Order  of  Commitment,  y.o. 
8.  Order  Discharging  from  Imprisonment,  311. 

227  Volume  5. 


6175. 


CONTEMPT. 


6175. 


4.  Pardon.,  312. 

5.  Writ  of  Prohibition  Forbidding  Commitment.,  313. 

CROSS-REFERENCES. 

See  also  the  titles  ANSWERS  IN  EQUITY,  vo\.  i,  p.  854;  AT- 
'  TOPNEYS,  vol.  2,  p.  969;  and  the  GENERAL  INDEX 
to  this  work. 

For  matters  of  Practice,  see  the  title  CONTEMPT,  4  Encyclo- 
pedia OF  Pleading  and  Practice,  p.  764. 

I.  PROCEEDINGS  AGAINST  CONTEMNOR.^ 


1.  For  statutes  relating  to  the  subject 
of  contempt,  and  the  powers  of  the 
courts  and  method  of  procedure  to 
punish  the  same,  see  as  follows: 

Alabama.— QXv.  Code  (1886),  §§  648- 
650,  675,  subs.  6,  §§  723,  756,  subs.  4, 
§g  788,  826,  840.  Crim.  Code  (1886), 
g§  4066,  4194,  4298,  4694,  4790. 

Arizona.  — V^&v.  Stat.  (1887),  §§  796, 
logl,  1092,  1828,  1829,  2142,  2202,  2593. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§§  684-695. 

California.  —  Code  Civ.  Proc.  (1897), 
§§  128,  177,  178,  183,  906,  910,  1097, 
1209-1222,  1460,  1461,  199T-1994. 

Colorado. — Mills' Anno.  Stat.  (1891), 
g§  872,  896,  898,  1312,  1457,  1470,  1495, 
2117,  2210,  2416,  2661,  2662,  2666,  2741, 
3510,  3522,  4662,  4669,  4738,  4796,  4815, 
4830-4832;  Mills'  Anno.  Code  (1896), 
§§  149,  188(7,  209,  251,  306,  319,  321-334, 
355.  364,  3S0,  433. 

Connecticut.  —  Gen.  Stat.  (1888),  §§  91, 
526,  843,  1037.  I 198,  1270,  1272,  1299, 
2016. 

District  of  Columbia.  —  Comp.  Stat. 
(1894),  c.  10,  §§  41,  42,  44,  51,  c.  35.  §  33. 

Florida.  —  Rev.  Stat.  (1892),  §i^  975, 
976,  1099,  1557.  1791,2794,  2795, 

Georgia. — 2  Code  (1895),  §§  4046,  4082, 
4207,   4233,  4261,  4267,   5498,   subs.   6, 

§  5631. 

Idaho.  — '^ity.  Stat.  (1887),  §§  3862, 
3911,  3912,  3921,  4750-4754,  4989,  5155- 
5168,  5433,  5434,  7613, 8153. 

Illinois. — Starr  «&  C.  Anno.Stat. (1896), 
p.  339,  par.  114,  p.  348,  par.  131,  p.  528, 
par.  12,  577,  par.  24,  p.  589,  par.  41,  p. 
592,  par.  47,  p.  1257,  par.  ii8a,  p.  1400, 
par.  611,  p.  2093,   par.  40,  p.  2395,  par. 

15,  p.  2462,  pars.  161,  162,  p   3769,  par. 

16,  p.  3770,  par.  23,  p.  3819,  par.  33. 
Indiana.  —  Horner's      Stat.      (1896), 

§§426,  668,  679,  974,  1005-1014,  1160, 
1170,  1272,  1303,  1322,  1354,  1400,  1436, 
1649,  1664,  1676,  1790,  1828,  2253,  2255, 
2383,  2393,  2394,   2582,  2661,  3169,  5744. 


Iowa.  —  Code  (1897),  §^5  345,  500,  520, 
2119,  2128,  2407,  3611,  3739,  3954,  4082, 
41 71,  4180,  4335,  4372-4376,  4444,  4457, 
4460-4470,  5478,  5495. 

Kansas.  —  2  Gen.  Stat.  (1889),  p.  38, 
§  2,  p.  40,  §§  10-15,  p.  196,  §§  343-347, 
p.  461,  §§  16-18. 

Kentucky. —  Bullitt's  Civ.  Code  (1895), 
§§  151,  193,  205,  220,  226,  232,  257,  286, 
304,  424,  440,  443,  467,  535,  537,  539, 
633,  762. 

Louisiana.  — Rev.  Laws  (1S97),  §§  124, 
125. 

Maine.  — ^&\.  Stat.  (1883),  c.  63,  §  I, 
c.  70,  §  4,  c.  77,  §§  2,  78,  c.  99,  §  26,  c. 
106,  §  19,  c.  107,  §  29,  c.  133,  §  17. 

Maryland. —  Pub.  Gen.  Laws  (188S), 
art.  16,  ^  151,  art.  26,  §  4,  art.  47,  §  30, 
art.  93,  §§  233-243. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
22,  §  19,  c.  155,  §  41,  c.  156,  §  45,  c.  157, 
§  5.  c.  162,  §  13,  c.  169,  §  5,  c.  185,  §  31, 
c.  212,  §§  18,  54. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§§  361 I,  5670,  6470,  6610,  6766,  7076- 
7079,  7235-7238,  7257-7289,  7379,  7484, 
7951,  8083,  8115,  8663,  9478. 

Minnesota.  —  Stat.  (1894),  §§  227,  228, 
788,  1074,  4810,  5082-5091,  5117,  5218, 
5284,  5328,  5446.  5487,  5494,  5555,  6155- 
6171,  7179-7184. 

Mississippi.  —  Anno.  Code  (1892), 
§§  283,  310,  506,  641,  2370,  2388,  2680, 
2681. 

Missouri.—  Rev.  Stat.  (1889),  §i^  2150, 
2151. 

Montana.  —  Code  Civ.  Proc.  (1895), 
§§  110, 191.  192, 201,  310,  397,  1650-1654, 
1730,  1836,  1973,  2170-2183,  2572,  2573, 

3309- 

Nebraska. — Comp.  Stat.  (1897),  §§  572, 
917,  1082,  1265,  1322,  1670,  2473,  3558, 
3826,  3854,  4056,  4060,  5787,  5831,  5847, 
5931,  6138,  6254,  6266,  6282-6284,  6315, 
6459,  6489,  6621. 

Nevada.— G&n.  Stat.  (1885),  §§  600, 
1719,  2481,  3182,  3269,  3400,  3417, "3482- 


228 


Volume  5. 


6175. 


CONTEMPT. 


6175. 


1.  Ppeliminapy  Proceedings. 

a.  Affidavit. 

(1)  For  Contemptuous  Publication. 

Form  No.  6175. 

(Precedent  in  Ex  p.  Barry,  85  Cal.  604.)  ' 

State  of  California,  \ 

City  and  County  of  San  Francisco.  \ 

William  J.  Dixon,  being  duly  sworn,  deposes  and  says  that  one 
Henry  Bingham  is  the  defendant  in  an  action  wherein  the  people  of 
the  state  of  California,  upon  the  relation  of  Charles  J.  Swift,  is  plain- 
tiff; that  said  action  is  now  pending  in  the  superior  court  of  the  city 


ss. 


3495.  3596-3599.  3734,  3786,  3787.  4070, 
4100,  4427. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  207,  §  II,  c.  213,  §  7,  c.  224,  §  7,  c. 
239.  §§  25,  29. 

Newfersey. —  Gen.  Stat.  (1895),  p.  106, 
8  46,  p.  384,  §  69,  p.  392,  §  103,  p.  403, 
§  166,  p.  1216,  §  3,  p.  1406,  fe  52,  p.  1625, 
fe§  18,  19,  p.  1965,  55  38,  p.  2303,  §  342, 
p.  2377,  §  92,  p.  2387,  §  130.  p.  2568, 
§  214,  p.  2600,  §§  3S1,  382,  p.  3114,  §  22, 
p.  3116,  §  26. 

Neu)  Mexico.  —  Comp.  Stat.  (1884), 
gg  2322,  2323;  Laws  (1897),  c.  73,  §§  120, 
121,  146,  151. 

New  York.  —Birds.  Rev,  Stat.  (1896), 
p.  15,  §  21,  pp.  630-637,  p.  795,  g^  8-14, 
p.  875,  §  6,  p.   1393,  §  27,  subs.  2,  p. 

2794.  S  7,  p.  3077.  §  79- 

North  Carolina.  —Code  (1883),  §§  381, 
648-656,  1400. 

North  Dakota.  —  Rev.  Codes  (1895), 
§§  459,  1902,  5410,  5501,  5562,  5573.  5644, 
5650,  5935-5954,   6734-6737,  7999,  8370. 

Ohio.  —  Bates'  Anno.  Stat.  (1897), 
§§  52,  119,  193,  258,  310.  538,  543,  605, 
1130,  1720,  1791,  1844,  1912,  2773,  3012, 
3684.  5178.  51897,  5252-5256,  5397,  5481, 
5549.  5556.  5581,  5593.  5605,  5610,  5639- 
5650,  6541,  6542,  6779,  6783,  6906,  7201, 
7289. 

Oklahoma.  —  Stat.  (1S93),  g§  701,  2039, 
3099,  3133-3135,  4084,  4150,  4222-4224, 
4377,  4392,  4600,  4679,  4846-4848,  4908, 
5487.  5569,  6124. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
g§  171,  310,  406,  521,  525,  633,  650-664, 
797,  912,  1262,  1465,  2184,  2185. 

Pennsylvania.  —  Bright.  Pur.  Dig. 
(1894),  p.  132,  §  54,  p.  382,  5<g  1-6,  p. 
784,  §  52,  p.  1744,  §  4,  p.  1745,  §§  13,  14. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
209,  §§  15,  19,  c.  211,  §  8,  c.  221,  5^6, 
c.  262,  §  22,  c.  274,  §  37. 


South  Carolina.  —  Rev.  Stat.  (1893), 
§§  725.  726,  735,  887,  2245,  2291,  2301, 
2302,  2306,  2329,  2338,  2343. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §g  584,  667,  5022,  5112,  5185, 
5251,  5257,  5267,  5268,  5529,  5977,  6118- 
6122,  7200,  7538,  7850. 

Tennessee. — Code  (1896),  §§  4033, 
5912,  5918-5924,  5937,  subs.  9. 

Texas.  —  Rev.  Stat.  (1895;,  arts.  262, 
948,  999,  iioi,  1161,  1455,  1570. 

Utah.  —  Rev.  Stat.  (1898),  §§  II2,  697, 
713-716,  199S,  3358-3373,  3474.  3752- 
3756,  4534,  4542,  5170. 

Vermont.  —  Stat.  (1894),  g§  IO05, 
1455,  1607,  1610-1612,  2707,  4527. 

Virginia.  —  Code  (1887),  g|  329O, 
3428,  3768-3771,  4050,  4051,  4053,  4104, 
4200. 

Washington.  —  Ballinger's  Anno. 
Codes  &  Stat.  (1897),  §§  91-94.  355.  2034 
2036,  2189,  4696,  4701,  5405,  5445-5447, 
5726,  5727,  5798-5811,  6828. 

IVest  Virginia. — Code  (1891),  c.  50, 
§§  190-192,  c.  147.  §§  27-29. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §§  102,  103,  720,  1504,  2433,  2434, 
2565-2569.  3037,  3477-3497.  3575-358i, 
3648,  3726,  3856,  4064-4066,  4096,  4097. 

Wyoming.  —  Rev.  Stat.  (1887),  §§ 
2600,  2602,  2743,  2829,  2097,  2941,  2953, 
3393.  3563,  3590-3598. 

C/nited  States.  —  Rev.  Stat.  (1878),  §§ 
725,  1070,  4073,  4104,  4973,  4999,  5002, 
5005.  5006,  5037. 

1.  It  was  held  in  this  case  that  the 
publication  set  out  in  the  affidavit  was 
an  "  unlawful  interference  with  the  pro- 
ceedings of  a  court"  and  was,  therefore, 
punishable  under  the  provisions  of  Cal. 
Code  Civ.  Proc.  (1897),  §  1209  subs.  9. 
See  also  statutes  cited  supra,  note  l^ 
p.  228. 

O  Volume  5. 


6175.  ,  CONTEMPT.  6175. 

««</ county  oi  San  Francisco,  state  of  California,  and  is  still  undeter- 
mined; that  SQ.\<\  Ifenry  Bitigham  did  interpose  and  file  a  demurrer 
to  the  complaint  in  said  action,  which  said  demurrer  was,  after  full 
argument,  on  the  second  day  of  August,  i889j  by  the  said  court  sustained, 
and  on  said  last  mentioned  day  the  said  plaintiff  was  given  leave  to 
amend  his  said  complaint  within  Un  days  thereafter;  that  the  time 
granted  said  plaintiff  by  said  court  to  amend  his  said  complaint  has 
not  yet  expired;  that  one  /antes  H.  Barry  is  the  editor  of  a  paper 
published  weekly  in  the  city  and  county  of  San  Fraticisco,  state  of  Cali- 
fornia, which  said  paper  is  called  the  Weekly  Star;  that  on  the  third 
day  oi  August,  iS89,  and  while  said  action  was  then  and  there  pend- 
ing in  said  superior  court,  said  James  H.  Barry  did  publish  and  cause 
to  be  published  at  the  city  and  county  of  San  Francisco,  state  of  Cali- 
fornia, in  the  said  paper,  the  Weekly  Star,  the  following  false,  mali- 
cious, untrue,  libelous,  and  defamatory  matter  of  and  concerning 
Honorable  F.  W.  Lawler,  judge  of  the  superior  court  of  the  said  city 
and  county  of  San  Francisco,  state  of  California:  (^Here  was  set  out  a 
copy  of  the  contemptuotis  publication);  ^  with  intent  then  and  there  unlaw- 
fully to  interfere  with  the  proceedings  of  a  court  of  justice  and  to 
insult  the  said  Francis  W.  Lawler,  Esquire,  judge  of  said  court,  in 
the  discharge  of  the  duties  of  his  office,  and  to  expose  him  to  obloquy 
and  contempt. 

W.  J.  Dixon. 
Subscribed  and  sworn  to  before  me  this  ninth  day  oi  August,  i889. 

George  H.  Pippy,  Deputy  County  Clerk. 

1.  The  contemptnouB  publication  set  out  brought     against     Supervisor     Henry 

in  the  affidavit  was  in  the  language  fol-  Bingham,  to  determine   whether  he  is 

lowing,  to  wit:  entitled  to  the  office  of  supervisor.    This 

"  A  Criminal  Judge.  suit  was  assigned  by  the  Buckley  judge. 

We  charge  Francis  W.  Lawler,  judge  Levy,  to  the  other  Buckley  judge,  Law- 

of   the  superior  court   of  San  Francisco,  ler  (upon  which  every  lawyer  in   town 

with    deliberate   lying   about  the  law,  knew  beforehand    what  Lawler  would 

deliberate    intentional    falsification    in  do,  though   they  could   not  have  fore- 

his  official  capacity,  and  deliberate  in-  seen  just  how  he  would  begin  to  do  it), 

tintional  denial  of  justice.     He  is  not  When  the  case  came  up   before  La^vler 

merely  a  fool,  but  an  impudent  rascal;  yesterday,    Bingham's     attorney     '  de- 

a  criminal  on  the  bench.     He  ought  to  murred,'  —  that  is,  he  said  the  stiperior 

be  impeached  and  removed  from  office,  court  had  [no]  authority  to  try  a  case 

and  disfranchised,    indicted  and    pun-  like  this.     In  reply,  the  complainant's 

ished  by  fine  and  imprisonment;  made  attorney  showed   that  the  constitution 

a   convict   of.     But  our   criminal   ma-  expressly    provides    that    the  superior 

chinery  and  our  legislature  are  so  often  court   had   jurisdiction   over   all    such 

elected  and  used  (just  as  Lawler  acts),  cases.     And  this  impudent   falsifier  of 

not  to  punish  wrong-doing,  but  on  pur-  the  law  and  denier  of  justice,  Francis 

pose  to  protect  it,  that  such  a  proceed-  W.  Lawler,  allowed  the  demurrer,  abso- 

ing   is   hopeless.      If   the    information  lutely  giving  fora  reason  that '  although 

which  we  have  received  is  wrong,  let  the  constitution  does  give  the  superior 

the  editors  of  the  Weekly  Star 'b&^xov^ct.  court  jurisdiction  over  all  such  cases, 

arrested  on  a  charge  of  criminal  libel,  yet  this  is  not  all  cases,  but  only  one. 

We  invite  and  defy  Lawler  to  venture  case,  and  therefore  this  court  had  no 

to  defend  himself  even  in   a  San  Fran-  jurisdiction  over  it.' 
Cisco    court    by    this    proceeding.     We         This  seems  impossible.    But  we  affirm 

shall  make  the  crime  of  this  judge  so  it  to  be  true,  and  upon  the  affirmation 

plain    that   even   the   wayfaring    men,  we  are  deliberately  taking  the  risk  of 

though  fools,  shall  not  err  therein.  being  publicly  dishonored  unless  Judge 

The  case   is   this:    A   suit  has  been  Lawler   remains   publicly   dishonored. 

230  Volume  5. 


6176.  CONTEMPT.  6 1 76. 

(2)  For  Failure  to  Obey  Process  or  Orders. 

{a)  Injunction, 
aa.  Against  Board  of  Aldermen. 

Form  No.  6176.' 

John  D.  Negus 

against 

The  City  of  Brooklyn,  The  Brooklyn  Elevated 

Railway  Company  and  others. 
County  of  Kings,  \ 
City  of  Brooklyn.  \  ^^' 

David  Bar  nett,  being  duly  sworn,  says:  That  I  am  one  of  the  coun- 
sel for  the  plaintiff  in  the  above  entitled  action. 

The  action  was  commenced  by  the  service  of  a  summons  and  com- 
plaint on  the  defendants  and  on  the  members  of  the  common  council 
of  the  city  of  Brooklyn,  on  the  twenty-seventh  day  of  December  last 
past,  as  will  more  fully  appear  by  the  affidavits  of  service  hereto 
annexed.  2 

On  the  twenty-sixth  day  of  December  last  past  an  injunction  order, 
with  an  order  to  show  cause,  on  the  twenty-eighth  day  of  December 
last  past,  why  said  injunction  should  not  be  made  perpetual,  was 
made  by  the  county  judge  of  Kings  county  ^  and  duly  served  on  the 
members  of  the  common  council  of  said  city,  as  will  more  fully 
appear  by  the  affidavit  of  service  hereto  annexed,  and  that  a  copy 
of  said  injunction  order  so  made  is  also  hereto  annexed. 

That  on  the  return  day  of  said  order  to  show  cause  the  motion 
thereon  was  duly  heard  before  the  Hon.  Jasper  W.  Gilbert,  one  of  the 
justices  of  this  court,  and  upon  the  hearing  of  said  motion  the  mem- 
bers of  the  said  common  council  appeared  by  their  counsel,  Winchester 
Britton,  Esq.,  who  argued  in  opposition  to  said  motion  in  their  behalf. 

The  said  justice  reserves  his  decision  thereon  until  this  day,  when 
the  said  justice  rendered  the  decision  of  the  special  term  of  this 
court  continuing  said  injunction  order,  and  thereupon  said  order  was 
entered. 

That  between  the  hearing  of  the  motion  and  the  decision  of  the 
same,  said  common  council  kept  adjourning  from  day  to  day  until 
this  morning,  when  by  its  action,  as  hereinafter  stated,  the  members 
thereof,  and  hereinafter  named,  violated  the  said  injunction  order. 

It  is  exactly  as  if  the   burglar yi'/wwi>'  summons  and  complaint  in  the  original 

Hope  had  been   discharged    by   Judge  action  had  been  served  on  the  city  of 

Toohy  without  trial  on  the  ground  that  Brooklyn  and  that  there  was  no  formal 

the  '  law  only  provided  for  the  trying  of  proof  of  service.     It  was  held  that  the 

all  burglars,  and  therefore  did  not  pro-  attachment  papers  sufficiently  showed 

vide  for  trying  this  one.' "  that  the  city  had  been  served  and  so 

1.  This  affidavit  is  copied  from   the  was  a  party. 

record  in  the  case  of  People  v.  Dwyer,  3.   Although    issued   by   the   county 

90  N.  Y.  402.     See  Birds.  Rev.  Stat.  N.  judge  the  injunction   was  no  less  the 

Y.  (1896),  p.  795,  ^  8,  p.  796,  §  14,  and  mandate     of    the     court.       People    v. 

statutes  cited  supra,  note  i,  p.  228.  Dwyer,  90  N.  Y.  402,  citing  N.  Y.  Code 

2.  An  objection  was  taken  on  the  Civ.  Proc,  §§  606,  3343;  Erie  R.  Co.  v. 
hearing  that  it  did  not  appear  that  the  Ramsey,  45  N.  Y.  646. 

231  Volume  5. 


6177.  CONTEMPT.  ^\11. 

That  this  morning,  about  the  hour  of  eleven  o'clock,  I  called  on 
Dennis  McNamara,  the  city  clerk  of  Brooklyn  and  clferk  of  the  com- 
mon council,  for  the  purpose  of  ascertaining  from  him  whether  any 
action  had  been  taken  by  the  common  council  at  its  meeting  today 
in  reference  to  its  passing  any  resolution  to  override  the  mayor's 
veto  of  the  resolution  heretofore  passed  by  the  common  council  in 
relation  to  the  defendant's  railway.  Mr.  McNamara  informed  me 
that  the  common  council,  at  its  meeting  this  morning,  had  passed  a 
resolution  to  adopt  the  resolution  heretofore  passed  by  it,  notwith- 
standing the  mayor's  veto.  I  then  asked  him  to  show  me  the  roll- 
book  of  the  board  showing  the  result  of  the  vote  thereon,  and  what 
members  voted  for  the  resolution,  which  he  did,  and  I  examined  the 
roll  with  him,  and  found  thereby  that  the  following  named  aldermen 
voted  in  the  affirmative: 

William  Dwyer,  John  McCarty,  James  Kane,  James  Weir,  Jr., 
Daniel  O'Connell,  Philip  Casey,  James  Donovan,  William  J.  LePine, 
Felix  W.  Doyle,  William  Allison,  Philip  Schmitt,  William  H.  Waters, 
Thomas  Botvers,  Richard  S.  Roberts,  Benjamin  D.  Seaman,  Patrick  J. 
Kelly  and  Thomas  R.  Ar milage. 

And  those  voting  in  the  negative  were: 

Aldermen  Harry  O.  Jones,  Robert  Black  and  Theodore  D.  Dimon,  as 
will  more  fully  appear  by  a  certified  copy  of  said  resolution  hereto 
annexed. 

That  deponent  was  also  informed  by  Alderman  Richard  S.  Roberts 
that  they  had  passed  the  resolution  over  the  mayor's  veto. 

Deponent  further  says  that  at  the  time  of  the  passage  of  said  reso- 
lution the  injunction  in  this  action  was  still  in  full  force  and  effect,  and 
that  the  passing  of  said  resolution  was  a  gross  violation  of  said 
injunction. 

Deponent  therefore  asks  that  an  order  be  made  herein  directing 
that  an  attachment  be  issued  to  the  sheriff  of  Kings  county  against 
each  and  every  one  of  the  said  persons  named  above  who  voted  in 
the  affirmative  to  pass  said  resolution,  and  that  they  be  punished 
according  to  law, 

D.  Barneti. 

Sworn  to  before  me  the  thirty-first  day  oiDecember,  iS81. 

E.  J.  Bergen,  Commissioner  of  Deeds. 

hb.  To  Restrain  Operation  of  Mine.' 

1.  Sufficient  Affidavit.  —  Where  the  affi-  orders  and  processes  of  the  court,  and 

davit   alleged    that    since    service    on  described    particularly   the   manner  in 

defendants  of  the  injunction  which  had  which  the  mine  had  been  operated,  and 

been  issued   on    the   sixteenth  day  of  alleged  that  large  quantities  of  material 

January,  and  served  on  defendants  on  had  been  deposited  in  Deer  creek,  tribu- 

the    thirtieth  day  of  the  same  month,  tary  to  the  Yuba  river,  in  violation  of 

the  said  defendants  had  been  working  the  writ  of  injunction,  the   allegations 

and  operating  by  the  hydraulic  process  were  sufficient.     Ex  p.  Ah  Men,  77  Cal. 

the  mine  described  in  the  complaint,  in  198.     See  also  Hedges  v.  Superior  Ct., 

wilful  and  gross   disobedience  of  the  67  Cal.  405. 

232  Volume  5. 


6177.  CONTEMPT.  6177. 

Form  No.  6177. 
(Precedent  in  People  v.  District  Ct.,  19  Colo.  344.)' 

[State  of  Colorado,    \  In  the  District  Court  within  and  for 

Qownty  oi  El  Paso.  \     '  said  County.  J^ 

The  People  \of  the  State  of  Colorado,      ~\ 
ex  relatione  Samuel  S.  Pernard,]^         ' 

V. 

Thomas  L.  Darby  and Bradford. 

Samuel  S.  Bernard  being  duly  sworn  on  oath  says,  that  heretofore 
an  injunction  was  issued  out  of  said  court  in  a  certain  suit  wherein 
Samuel  McDonald  and  others  were  plaintiffs  and  the  Elkton  Mining 
and  Milling  Company  was  defendant;  and  also  another  injunction  in 
a  certain  other  suit  wherein  Thos.  L.  Cathcart  was  plaintiff  and  said 
company  defendant;  and  also  another  injunction  in  a  certain  other 
suit  in  said  court  wherein  Hull  and  others  were  plaintiffs  and  said 
company  defendant;  that  each  of  said  injunctions  was  issued  on 
behalf  of  said  company  restraining  the  plaintiffs  in  each  of  said  cases, 
their  agents  and  employees  and  ail  persons  acting  for  them  and  all 
persons  claiming  under  any  contract  or  agreement  into  which  the 
plaintiffs  or  any  of  them  after  commencement  of  said  suits  and  all 
persons  in  privity  with  said  plaintiffs  or  any  of  them,  from  removing 
and  from  mining  and  selling  any  of  the  ores  or  minerals  of  or  within 
the  boundaries  of  the  Walter  lode  mining  claim  in  Cripple  Creek 
mining  district  in  the  county  of  El  Paso  and  from  disposing  of  any 
of  said  ores  already  mined  or  the  proceeds  thereof. 

Deponent  says  that  defendant  Darby  was  present  in  court  and  had 
full  knowledge  of  the  granting  of  said  injunctions  and  that  defend- 
ants have,  as  deponent  is  informed  and  believes,  full  knowledge  of 
the  issuance  thereof;  that  said  injunctions  are  still  in  force. 

Upon  information  and  belief,  deponent  says  that  each  of  said 
defendants  claim  the  right  to  work,  mine  and  remove  ores  of  said 
Walter  lode  under  some  agreement  made  between  them  and  plain- 
tiffs, since  the  commencement  of  each  of  said  suits,  and  that  what- 
ever rights  said  defendants  have  in  or  to  the  ores  of  said  Walter  lode 
have  been  acquired  since  the  commencement  of  said  suits. 

Deponent  further  says,  that  a  large  force  of  men  have  been  since 
the  issuance  of  said  writs  of  injunction,  and  still  are,  as  deponent  is 
informed  and  believes,  engaged  in  mining  and  removing  the  valuable 
minerals  from  said  Walter  lode,  under  and  by  direction  of  defendants, 
the  property  of  defendant  company;  that  at  the  time  of  granting  of 
said  injunctions  and  the  issuance  of  said  writs  there  was  already 

1.  In    this  case  violation  of   the  in-  these  orders,  and   he  violated,  at   his 

junction  was  admitted;  but  the  defense  peril,    the   injunction   order  which   he 

was  based  on   an  alleged  purchase  of  was  bound  to  obey  implicitly, 

the   property  after   commencement  of  See  Mills'  Anno.  Code  Colo.  (1896), 

suit  but  before  any  affirmative  relief  ^  149,  and  list  of  statutes  cited  supra, 

had  been  granted.     The  defendant  in  note  i,  p.  228. 

the  present  suit,  however,  was  included  2.  The  words  enclosed  by  []  will  not 
in  the  terms  of  the  restraining  orders  be  found  in  the  reported  case,  but  have 
and  was  present  in  court  and  had  full  been  added  to  render  the  form  corn- 
knowledge  of  the  nature  and  extent  of  plete. 

238  Volume  5. 


6178.  CONTEMPT,  6178. 

mined  and  in  transit  to  mills  or  smelters  large  quantities  of  said 
Walter  ores  and  minerals,  and  that  said  defendants  have  since  that 
time,  and  after  full  knowledge  of  said  injunctions,  disposed  of  such 
ores  and  the  proceeds  thereof. 

Wherefore  deponent  says  that  defendants  are  guilty  of  a  violation 
of  said  injunction,  contrary  to  the  laws  and  the  statutes,  and  against 
the  peace  and  dignity  of  the  people  of  the  state  of  Colorado. 

Deponent  says  that  he  is  secretary  of  said  mining  company,  a  cor- 
poration, and  prays  that  defendants  be  required  to  show  cause  why 
they  should  not  be  punished  for  contempt  for  violation  of  said 
injunctions. 

[Samuel  S.  Bernard. 

Subscribed  and  sworn  to  before  me  this  eighth  day  of  January,  i893. 

John  Hancock^  Clerk  District  Court.J^ 

(J))  Judgment. 

Form  No.  6178. 

(Precedent  in  State  v.  McKinnon,  8  Oregon  487.)* 

In  the  Circuit  Court  for  the  county  of  Douglas^  State  of  Oregon. 
State  of  Oregon,  ex  rel.  J.  H.  Mahoney, 
Plaintiif, 

V. 

J.  D.  McKinnon,  Alva  Pike,  J.  H.  Shupe,  E.J. 

Page  and  George  R.  Sac^'y,  Defendants. 
State  of  Oregon,         ] 
County  of  Douglas,  f 

I,  William  R.  Willis,  being  duly  sworn,  say  I  am  attorney  for 
plaintiff  above  named;  that  said  plaintiff  did,  on  the  twenty-fifth  day 
of  June,  iS79,  recover  judgment  in  the  above  entitled  court  and 
cause  against  the  said  defendants,  J.  H.  Shupe,  E.  J.  Page,  and 
George  R.  Sacry;  that  they  were  guilty  of  usurping  and  unlaw- 
fully exercising  the  ofifice  of  trustees  of  the  city  of  Oakland,  and  that 
they  be  excluded  therefrom;  that  I  am  informed  and  believe  that 
the  said  defendants,  E.  J.  Page  and  John  H.  Shupe,  in  disobedience 
of  said  lawful  judgment,  continue  to  and  do  now  usurp  and  exercise 
the  office  of  trustees  of  said  city  of  Oakland,  and  refusing  and  neg- 
lecting obedience  to  said  judgment, 

William  R.   Willis. 

Subscribed  and  sworn  to  before  me  August  26,  i879. 

T.  R.  Sheridan,  Clerk. 

1,  The  words  and  figures  enclosed  by  reversed  by  the  supreme  court  on  the 
[  ]  will  not  be  found  in  the  reported  ground  that  the  judge  had  no  power 
case,  but  have  been  added  to  render  under  the  statute  or  at  common  law 
the  form  complete.  to  hear  and  determine  charges  of  con- 

2.  This  affidavit  sufficiently  shows  tempt  during  vacation.  See  Hill's 
the  facts  constituting  the  contempt;  Anno.  Laws  Oregon  (1892),  §  650, 
but  the  final  determination  adjudging  subs.  5,  and  list  of  statutes  cited  supra, 
the  defendant  guilty  of  contempt  was  note  i,  p.  228. 

234  Volume  5. 


Action  at  law  to  pre- 
vent the  usurpation 
of  office. 


6179. 


CONTEMPT. 


6179. 


(f)  Mandamus. 
aa.  Directed  to  Canvassers  of  Elections. 
Form  No.  6179.' 
Supreme  Court,  Albany  County. 
The  People  of  the  State  of  Ne^v  York^ 
071  the  relation  of  John  L.  Piatt 
and  William  C.  Dailey, 
against 
The  Board  of  State  Canvassers  of 
the  State  of  New  York  and  Prank 
Pice,    Secretary    of    the     State; 
Edward    Wemple,    Comptroller; 
Charles  P.  Tabor,  Attorney-  Gen- 
eral; Elliott  P.  Danforth,  Treas- 
urer,   and  John   Bogart,    State 
Engineer  and  Surveyor,  as  mem- 
bers thereof,  and  each  of  them. 
Dutchess  County,  ss.: 
John  L.  Piatt,  being  duly  sworn,  deposes  and  says:  That  he  is  one  of 
the  relators  in  the  above  entitled  proceeding;  that  on  the  twenty-ninth 
day  of  December,  iS91,  the  said  defendants  held  a  meeting,  as  the  Board 
of  State  Canvassers  of  the  State  of  New  York,  at  which  meeting  they 
canvassed  the  returns  from  the  board  of  canvassers  of  the  counties  of 
Columbia,  Putnam  and  Dutchess  of  the  votes  for  candidates  for  the  office 
of  senator  for  the  fifteenth  senatorial  district  composed  of  said  coun- 
ties;   that   said   defendants   thereupon   regarded   a   certain  return, 
known  as  the  "  Mylod  return,"  and  referred  to  in  the  order  entered 
herein  December  7,  i89i,  hereinafter  referred  to;  that  the  said  defend- 
ants did  not  consider  a  certain  other  return,  known  as  the  "  Correct 
return,"  herinafter  referred  to,  and  that  they  made  a  certificate  of  elec- 
tion whereby  they  certified  and  declared  that  one  Edward B.  Osborm 
had  received  the  greatest  number  of  votes  in  the  counties  oi  Columbia, 
Putnam  and  Dutchess  for  the  position  of  senator  from  the  fifteenth  sena- 
torial district,  whereas,  in  fact,  upon  said  returns,  he  had  not  received 
the  greatest  number  of  votes,  as  hereinafter  more  particularly  shown; 
And  this  deponent  further  says  that  hereto  annexed,  marked  Ex.  A^ 
is  a  copy  of  the  said  return  known  as  the  "  Mylod  return,"  in  so  far  as 
it  contains  the  statement  of  the  votes  in  Dutchess  county  for  the  office 
of  senator  from  said  district. 


1.  This  form  is  copied  from  the 
record  in  the  case  of  People  v.  Rice, 
144  N.  Y.  249,  in  which  case  there  was 
a  conviction.  What  constituted  the 
contempt  here  was  the  fact  that  the  de- 
fendants, knowing  of  the  order  for  the 
issuance  of  a  peremptory  writ  of  man- 
damus, did  the  thing  which  the  issu- 
ance of  the  writ  was  intended  to  pre- 
vent. The  court  in  that  case  said,  citing 
Hull  V.  Thomas,  3  Edw.  Ch.  (N.  Y.) 
236,  and   English  cases   therein  cited: 


"  It  is  no  new  principle  that  a  person 
may  be  held  guilty  of  the  offense  of 
contempt,  for  having  done  an  act  after 
the  court  had  decided  to  enjoin  its 
doing;  although  that  decision  had  not 
been  formally  and  technically  carried 
out,  or  formulated,  into  an  order  or 
writ." 

See  Birds.  Rev.  Stat.  N.  Y.  (1896),  p. 
796,  §  14,  subs.  2,  and  list  of  statutes 
cited  supra,  note  i,  p.  228. 


235 


Volume  5. 


6179.  CONTEMPT.  6179. 

He  further  says  that  hereto  annexed,  marked  Ex.  B^  is  a  copy  known 
as  the  "Correct  return,"  in  so  far  as  it  gives  the  true  statement  of  the 
votes  in  said  Dutchess  county  for  said  office. 

Deponent  further  says,  that  hereto  annexed,  marked  Ex.  C,  is  a  copy 
of  the  said  order  of  December  7,  i85i,  which  was  duly  filed  in  the  office 
of  the  clerk  of  Albany  county  on  that  day. 

Deponent  further  says  that  hereto  annexed,  marked  Ex.  Z>,  is  a 
copy  of  a  certain  stipulation  hereinafter  more  particularly  referred  to. 

Deponent  further  says  that  hereto  annexed,  marked  Ex.  E^  is  a  copy 
of  an  order  of  the  genera/  term  of  this  court,  dated  December  7,  iS^i, 
and  duly  entered  and  filed  in  the  office  of  the  clerk  of  Albany  county 
on  December  9,  i  S91. 

Deponent  further  says  that  hereto  annexed,  marked  Ex.  E,  is  a  copy 
of  the  decision  and  order  of  the  Court  of  Appeals  upon  an  appeal  by 
the  defendants  from  the  said  order  of  the  general  term,  in  so  far  as  said 
order  modifies  the  said  order  of  December  1th. 

Deponent  further  says  that  hereto  annexed,  marked  Ex.  G,  is  a  state- 
ment showing  how  the  said  order  of  December  7th  would  read  as 
modified  by  the  said  decision  of  the  Court  of  Appeals,  and  what  the 
mandamus,  if  issued  pursuant  thereto,  would  have  commanded  the 
defendants  to  do. 

And  this  deponent  further  says  that  the  returns  from  the  board  of 
canvassers  from  the  counties  of  Columbia  and  Putnam,  before  the  said 
defendants  as  such  board  of  state  canvassers,  showed  that  the  said 
Edward  B.  Osborne  had  received  in  said  counties  of  Columbia  and  Put- 
nam 6,669  votes,  and  that  one  Gilbert  A.  Deane  had  received  6,889 
votes  for  the  office  of  said  senator,  and  that  upon  those  returns,  and 
upon  the  said  "  Correct  return,"  it  appeared  that  the  said  Edward B. 
Osborne  had  not  received  the  greatest  number  of  votes  for  said  office 
of  senator  in  said  counties  of  Columbia,  Putnam  and  Dutchess,  but  that 
said  Deane  had  received  the  greatest  number  thereof. 

And  this  deponent  further  says  that  in  determining  and  declaring 
that  the  said  Osborne  had  received  the  greatest  number  of  votes  for  the 
said  office  of  senator  from  said  district,  and  in  subscribing  their  cer- 
tificate of  such  determination,  said  defendants  canvassed  and  regarded 
the  said  "  Mylod  return  "  and  failed  and  omitted  to  consider  the  said 
"Correct  return." 

And  deponent  further  says  that  the  stipulation,  hereinbefore  referred 
to  (the  original  of  Ex.  Z)),  was  entered  into  by  the  said  defendants  for 
the  purpose  of  obtaining  a  stay  of  the  issuance  of  the  writ  of  man- 
damus which  was  directed  by  the  said  order  oi  December  7ih,  and  the 
issue  of  the  said  writ  of  mandamus  was  thereupon  stayed  by  the  rela- 
tors herein  in  reliance  upon  said  stipulation. 

Deponent  further  says  that  the  said  "  Correct  return  "  (the  original 
of  Ex.  B^  was  the  return  referred  to  in  the  said  order  of  December  7th 
(the  original  of  Ex.  C)  as  the  return  which,  by  said  order,  the  said 
defendants  were  directed  to  consider.  Said  "  Correct  return  "  was 
filed  with  the  governor  of  the  state,  the  comptroller  of  the  state,  and  the 
secretary  of  state,  as  required  by  law,  on  or  about  the  twenty-first  of 
December,  i891,  and  was,  as  a  matter  of  fact,  before  said  defendants  at 
the  time  they  held  their  said  meeting  on  December  29,  i891. 

236  Volume  5. 


6179.  CON  TEMP  T.  6 1 79. 

This  deponent  makes  this  last  allegation  upon  information  and  belief, 
derived  from  the  following  facts: 

Upon  December  5,  i891,  in  a  certain  proceeding  in  this  court,  in 
Dutchess  county,  wherein  the  People,  upon  the  relation  of  the  relators 
in  this  case,  the  plaintiff,  and  the  Board  of  County  Cajwassers  of  Dutchess 
County  and  these  defendants  were  defendants,  an  order  was  duly  entered 
whereby  it  was  ordered  that  a  writ  of  mandamus  should  issue  to  the 
said  Board  of  County  Canvassers  of  Dutchess  County,  requiring  them  to 
make  certain  corrections  in  their  canvass  of  the  votes  of  Dutchess 
county  for  the  office  of  senator  from  said  district,  and  that  they  cause 
their  correct  determination  and  statement  to  be  certified,  attested,  and 
filed,  as  required  by  law,  which  mandamus  was  issued  and  executed, 
and  pursuant  to  which  the  said  "  Correct  return  "  (the  original  of  Ex. 
B)  came  into  existence,  was  filed  with  the  clerk  oi  Dutchess  county,  as 
required  by  law,  and  certified  copies  thereof  were  transmitted  to  the 
said  governor,  comptroller  and  secretary  of  state,  as  hereinafter  shown, 
and  it  was  such  return  which  the  said  order  of  December  7th  (the 
original  of  Ex.  C)  contemplated  and  referred  to  —  the  proceedings  to 
obtain  which  correct  return  having  been  started  at  the  same  time  as 
the  proceedings  in  this  case,  and  being  well  known  to  all  the  parties  to 
this  proceeding  and  their  attorneys. 

The  object  of  the  said  proceeding  in  the  Dutchess  county  case  being 
to  obtain  a  correct  return,  and  the  object  of  their  proceeding  being  to 
compel  the  defendants  to  canvass  and  regard  the  correct  return 
instead  of  the  false  one,  the  said  proceedings  in  the  Dutchess  county 
case  were  brought  to  a  successful  determination.  The  correct  return 
was  obtained  and  forwarded  and  was  before  the  said  defendants,  as  is 
shown  in  the  annexed  affidavit  oi  Charles  F.  Cossum. 

Deponent  further  says  that  the  said  defendants  and  each  of  them, 
respectively,  had  full  knowledge  and  notice  of  the  said  orders,  deci- 
sions and  stipulation  hereinbefore  referred  to. 

Deponent  makes  this  last  allegation  upon  information  and  belief, 
derived  as  follows: 

From  the  affidavits  of  service  hereto  annexed;  from  the  fact  that  the 
defendants  were  officials,  the  duties  of  whose  position  required  them 
to  make  themselves  acquainted  with  the  proceeding  herein  detailed 
as  affecting  their  official  action,  and  from  the  fact  that  all  of  said  pro- 
ceedings were  matters  of  public  notoriety  published  in  the  newspapers 
throughout  the  state,  the  time  being  one  of  great  political  excitement, 
the  papers  giving  full  account  of  what  was  done  each  day  in  the  courts. 

And  deponent  further  says  that  between  the  dates  December  7  and 
Decefnber  29,  iS91,  they,  the  said  defendant,  together  with  their  coun- 
sel, Isaac  H.  Maynard  and  Dclos  McCurdy,  entered  into  a  conspiracy 
by  which  they  agreed  that  in  case  any  correct  return  from  Dutchess 
county  should  be  transmitted  to  them,  pursuant  to  the  said  mandamus 
in  the  Dutchess  county  case,  so  issued,  as  hereinbefore  set  forth,  they, 
the  said  defendants,  would  refuse  it  and  would  return  it  to  the  county 
clerk  of  Dutchess  county  so  that  it  should  not  be  before  them. 

Deponent  makes  this  allegation  upon  information  and  belief,  derived 
as  follows: 

From  a  certain  open  letter,  bearing  date  March  16,  iS93,  and  signed 

237  Volume  5. 


6179.  CONTEMPT.  6179. 

by  Isaac  H.  Maynard,  published  by  him,  in  the  course  of  which  and  on 
page  9  he  states  that  he  and  the  said  McCurdy  and  the  said  defendants 
had  a  consultation  (which  by  said  letter  appears  to  have  been  held 
about  the  middle  of  December,  i85i),  in  which  it  was  agreed  that  they 
would  not  receive  any  such  return,  and  if  the  attempt  was  made  to 
transmit  it,  the  said  defendant  should  return  it  to  the  county  clerk  of 
Dutchess  county;  and  the  said  Maynardi\xx\htx  states  in  said  letter  that 
upon  said  returns  (being  the  ones  mailed  by  the  said  Storm  Emans  on 
December  21st  to  the  governor,  secretary  of  state  and  comptroller) 
being  received  by  those  respective  officers  at  Albany,  they  were  all 
taken  from  them  or  from  their  offices  and  handed  back  to  the  said 
Storm  Emans. 

Also  from  the  fact  that  deponent  saw  in  a  report  of  the  New  York 
newspapers  of  a  meeting  of  the  Bar  Association  that  the  said  Delos 
McCurdy  made  a  similar  statement  in  the  Bar  Association  of  New 
York  City. 

Deponent  further  says  that,  as  he  is  informed  and  believes,  and 
charges  the  fact  to  be,  that  the  said  defendants  were  guilty  of  an 
abuse  of  their  said  appeal  to  the  general  term  from  the  said  order  of 
December  7th  and  of  their  appeal  from  said  order  of  said  general  term 
to  the  Court  of  Appeals  zxiA  of  the  stay  of  proceedings  obtained  by  them 
upon  the  faith  of  their  said  stipulation  in  that  the  said  defendants 
made  use  of  the  same  for  the  purpose  of  enabling  them  to  take  meas- 
ures to  defeat  the  said  order  of  December  7th,  so  appealed  from,  in  case 
the  decision  should  be  against  them  in  the  Court  of  Appeals,  and  by 
holding  their  meeting  on  the  29th  day  of  December,  iS91,  which  was  the 
day  when  the  Court  of  Appeals  rendered  its  said  decision,  they  regarded 
the  said  "  Mylod  "  certificate  and  issued  their  said  false  certificate  of 
election,  before  the  judgment  of  the  Court  of  Appeals  could  be  made 
the  judgment  of  this  court,  by  filing  the  remittitur  and  entering  the 
usual  order  thereon,  and  before  any  mandamus  could  be  issued  against 
them,  pursuant  to  the  said  order  of  December  7th  as  so  modified. 

And  deponent  further  says  that,  as  he  is  informed  and  believes, 
and  charges  the  fact  to  be,  that  they,  the  said  defendants,  were  guilty 
of  deceit  in  entering  into  said  stipulation,  in  that  they  entered  into 
the  same  without  any  intention  of  being  bound  thereby,  but  with  the 
fraudulent  and  deceitful  purpose  to  obtain  a  stay  of  the  issuance  of 
the  writ  therein  directed;  they  intending,  as  soon  as  the  QoxxxX.  of  Ap- 
peals should  render  a  decision  upon  said  appeal,  that  they  would,  in 
case  such  decision  was  adverse  to  them,  immediately  meet  as  the 
board  of  canvassers  and  canvass  the  said  "  Mylod  return  "  and  refuse 
to  consider  the  "Correct  return,"  before  an  order  upon  the  remitti- 
tur could  be  entered  in  this  court  and  before  any  writ  of  mandamus, 
as  provided  in  said  order  of  December  7th,  could  be  issued,  and  the 
said  defendants  carried  out  said  fraudulent  and  deceitful  purpose 
and  did,  upon  the  said  decision  of  the  Court  of  Appeals  being  rendered 
against  them,  meet  and  act,  as  hereinbefore  set  forth,  and  issue  their 
certificate  declaring  said  Osborne  to  be  elected,  as  hereinbefore  stated, 
before  any  mandamus  could  be  issued. 

And  this  deponent  further  says  that  he  has  instructed  his  attorneys 
to  commence  these  proceedings  as  for  contemptof  court  out  of  a  sol- 

238  Volume  5. 


6180.  CONTEMPT.  6180. 

emn  sense  of  the  duty  which  he  owes  as  a  citizen  and  as  a  relator  in  this 
action;  deponent  has  waited  until  the  passion  and  strife  immediately 
occasioned  by  them  have  calmed  down,  the  matters  in  controversy 
having  been  contested  election  cases  and  the  voters  of  the  state  hav- 
ing been  very  much  excited  in  regard  to  them;  deponent  has  felt 
that  an  atmosphere  of  public  clamor  was  not  appropriate  in  which 
to  have  such  proceedings  as  these  carried  on;  the  year  i8P^  being 
what  is  called  a  presidential  year,  during  which  the  nominations  for 
the  presidency  and  the  election  following  the  same  is  held,  deponent 
felt  that  those  matters  were  of  such  absorbing  interest  that  it  was 
the  part  of  wisdom  to  suspend  such  proceedings  as  these,  especially 
when,  if  started  before  election,  the  charge  might  be  made  that  they 
were  instituted  or  prosecuted  merely  for  political  effect,  and  deponent 
has  waited  until  after  the  presidential  election  was  over  and  men's 
minds  had  fully  settled  down  before  giving  instructions  to  start  this 
prosecution. 

And  further  deponent  saith  not, 

John  I.  Piatt. 

Sworn  to  before  me  this  thirtieth  day  of  January,  i893. 

Edgar  M.  Meeks,  Notary  Public. 

bb.  Directed  to  Judge. 
Form  No.  6180. 
(Precedent  in  People  v.  Pearson,  4  111.  271.)* 
State  of  Illinois,  ) 
Cook  County.        j 

J.  Young  Scammon  doth  solemnly,  sincerely  and  truly  declare  and 
affirm,  that  at  the  April  term  of  the  Circuit  Court  of  Cook  county, 
held  at  Chicago  in  said  county,  in  the  year  eighteen  hundred  and  forty, 
this  affiant  delivered  in  person,  in  open  court,  to  John  Pearson,  judge 
of  said  court,  the  original  writ  of  mandamus  of  which  the  foregoing 
and  within  is  a  true  copy,  and  presented  to  him  a  copy  of  the  bill  of 
exceptions  therein  mentioned,  to  sign,  to  wit,  on  the  twenty-fifth  day 
of  April  last  past,  in  a  most  respectful  manner,  and  thereupon  said 
judge  caused  the  clerk  of  said  court  to  enter  the  order  hereto 
annexed,  marked  A,  and  made  a  part  of  this  affidavit;  and  after- 
ward, to  wit,  on  the day  of  May,  a.  d.  eighteen  hundred  and 

forty,  during  said  term  of  the  court,  said  judge  caused  the  following 
papers,  marked  B,  to  be  served  upon  this  affiant,  by  the  sheriff  of 
Cook  county,  and  compelled  this  affiant  to  appear  and  answer  the 
same,  which  he  did.  And  thereupon  the  said  judge  declared  that  he 
should  not  sign  said  bill  of  exceptions,  and  did  not  sign  the  same, 
and  has  not  since  signed  it,  as  this  affiant  is  informed,  and  believes 
to  be  true. 

J.  Young  Scammon. 

1.  It  was  held  in  this  case  that  where        In  People  v.  Judges,  2  Cai.  (N.  Y.) 

a  writ  of  mandamus  is  delivered  to  a  97,  it  was  held  that  it  should   appear 

judge  or  other   person   to  whom  it  is  from  the  affidavit  that  the  persons  who 

directed,  and  he  refuses  to  obey  it,  an  were  served  with  the  writ  of  mandamus 

attachment  will  issue  for  contempt  of  were  those  who  ought  to  have  signed 

court.  the  bill. 

239  Volume  5. 


6181.  CONTEMPT.  6181. 

Affirmed  to  according  to  law,  May  29th,  i8^C?,  before  the  clerk  of 
the  Cook  Circuit  Court,  and  the  seal  of  said  court  affixed. 

(seal)  Richd.  J.  Hamilton,  Clk. 

(^/)  Orders. 

aa.  For  Examination. 

{flo)  Of  Party  Before  Trial. 

Form  No.  6  i  8  i .' 

New  York  Supreme  Court,  City  afid  County  of  New  York. 
Rochester  Lamp  Company,  plaintiff,  ) 

against  >-  Moving  Affidavit. 

John  R.  Brtgham,  defendant.      ) 

City  and  County  of  New  York,  ss. : 

Edward  C.  Perkins,  being  duly  sworn,  deposes  and  says  as  follows, 
to  wit: 

I.  I  am  one  of  the  attorneys  for  the  plaintiff  in  the  above  entitled 
action,  which  was  commenced  by  personal  service  of  the  summons 
upon  the  defendant  on  the  sixth  day  oi  June,  i895. 

II.  The  defendant  appeared  in  this  action  on  the  sixth  day  of 
June,  iS95,  by  Prigham  cr*  Pay/is,  attorneys  and  counselors-at-law  of 
New  York  City,  as  his  attorneys. 

III.  This  action  is  brought  by  the  plaintiff  in  order  to  recover 
from  the  defendant  certain  amounts  due  upon  a  contract  by  which 
the  defendant,  for  a  valuable  consideration,  agreed  to  pay  to  the 
plaintiff  certain  royalties  upon  all  lamps  of  the  description  known  as 
central-draft  latnps,  which  might  hereafter  be  purchased,  directly 
or  indirectly,  by  the  defendant  of  the  firm  of  Edward  Miller  &>  Com- 
pany, of  New  York  City. 

IV.  The  complaint  in  this  action  has  never  been  served,  for  the 
reasons  which  will  hereafter  appear,  and  the  time  of  the  plaintiff  to 
serve  the  said  complaint  has,  from  time  to  time,  been  extended,  and 
was,  on  the  eighteenth  day  of  November,  i895,  by  order  of  the  Hon. 
Abraham  R.  Lawrence,  one  of  the  justices  of  this  court,  extended  to 
and  including  the  eighth  day  of  December,  i895. 

V.  On  the  twenty-eighth  day  of  June,  iS95,  plaintiff,  by  its  attorneys, 
made  application  to  the  Hon.  Abraham  Lawrence,  one  of  the  justices 
of  this  court,  for  an  order  directing  the  defendant  to  appear  for 
examination  before  trial  in  this  action,  upon  the  ground  that  such 
examination  was  necessary,  both  in  order  that  the  plaintiff  might 
frame  its  complaint,  and  on  the  ground  that  it  could  not  safely  pro- 
ceed to  trial  without  such  examination.  On  the  same  day  an  order 
for  such  examination  was  made  by  Mr.  Justice  Lawrence,  and  a  copy 
whereof  was  served  personally  upon  the  said  defendant,  John  LI. 
Prigham,  on  the  twenty-eighth  day  of  June,  ]  895.  The  said  order 
and  an  affidavit  proving  due  service  thereof  are  hereto  annexed.    . 

VI.  At  the  time,  place  and  hour  at  which  the  said  defendant  was 

1.  This  form  is  copied  from  the  guilty  of  contempt.  See  Birds.  Rev. 
records  in  Rochester  Lamp  Co.  v.  Brig-  Stat.  N.  Y.  (1896),  p.  796,  §  14,  subs.  2, 
ham,  I  N.  Y.  App.  Div.  490,  wherein  and  list  of  statutes  cited  supra,  note 
it  was    held   that  the  defendant   was     i,  p.  228. 

240  Volume  5. 


6182.  CONTEMPT.  6182. 

in  and  by  the  said  order  directed  to  appear  for*  such  examination, 
the  attorneys  for  the  said  defendant  appeared  and  moved  before  Mr. 
Justice  Stover,  who  was  then  sitting  at  chambers,  to  vacate  the  said 
order  upon  the  papers  upon  which  the  same  was  granted.  There- 
upon, on  the  appHcation  of  the  plaintiff's  attorneys,  the  said  exami- 
nation was  adjourned  by  Mr.  Justice  Stover  until  the  tenih  day  of  July, 
iS95,  at  the  same  time  and  place,  and  thereafter  and  on  the  tent  A 
day  of  Ju/y,  iS95,  an  order  was  entered  in  this  action  of  Mr.  Justice 
Zawrenee. 

VII.  Thereafter  the  plaintiff  in  due  season  appealed  in  the  general 
term  of  the  Supreme  Court  from  the  order  of  the  tenth  day  of  July, 
iS95,  aforesaid,  and  said  appeal  having  duly  come  on  to  be  heard,  the 
said  order  of  the  tent/i  day  oi  July,  iS95,  was  reversed  and  an  order  to 
that  effect  was  duly  entered  in  this  court  on  the  eighteenth  day 
of  October,  iS95,  whereby  in  addition  the  defendant  was  ordered  to 
appear  for  his  examination  in  pursuance  to  the  aforesaid  order  of 
Mr.  Justice  Lawrence  at  chambers  of  this  court  on  the  twenty-second 
day  of  November,  iS95,  at  10:30  o'clock,  as  will  more  fully  appear 
from  the  copy  of  said  order,  which  is  hereto  annexed  and  made  a 
part  of  this  affidavit. 

VIII.  Deponent  is  advised  and  believes  that  the  said  JohnH.  Brig- 
ham  left  the  United  States  either  shortly  before  or  immediately  after 
the  tenth  day  of  July,  i895,  and  has  not  since  been  within  the  state 
of  New  York. 

IX.  On  the  tenth  day  of  November,  i895,  a  certified  copy  of  said 
general  term  order  was  served  personally  upon  the  defendant,  John 
H.  Brig  ham,  at  Birmingham,  England,  as  will  further  appear  from  the 
affidavit  of  A.  G.  Johnson  hereto  annexed. 

X.  On  th.t  first  day  of  November,  iS95,  a  certified  copy  of  the  said 
general  term  order  and  notice  of  the  entry  thereof  was  served  upon 
Messrs.  Brigham  6-  Baylis,  the  attorneys  for  the  defendant,  in  the 
city  of  N'ew  York. 

XI.  The  defendant  wholly  failed  to  appear  for  his  examination  as 
directed  by  the  order  of  Mr.  Justice  Lawrence,  aforesaid,  and  pursu- 
ant to  the  said  order  of  the  general  term  fixing  the  date  for  such 
examination,  as  will  appear  from  the  minutes  of  his  default  made  by 
Mr,  Justice  Lngraham  hereunto  annexed. 

Edward  C.  Perkins. 
Sworn  to  before  me  this  second  day  of  December,  iS95. 
Henry  H.  Abbott,  Notary  Public, 

New  York  Co.,  112. 

{bb)  In  Supplementary  Proceedings. 
Form  No.  6182.' 
Supreme  Court,  New  York  County. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant, 

\.  Nexu  York.  — Code  Civ.  Proc,  Where  a  defendant  is  ordered  to  show 
§2457  (Birds.  Rev.  Stat.  (1896),  p,  3031,  cause  why  he  should  not  be  punished 
§  26).  as   for   a   contempt    in   disobeying  an 

5  E.  of  F.  P.  — 16,  241  Volume  5. 


6183.  CON  TEMP  T.  6183. 

State  of  New  York,  \ 

r   SS 

City  and  County  of  New  York,  f     * 
Edward  Green,  being  duly  sworn,  deposes  and  says: 

I.  That  he  is  the  attorney^  of  John  Doe,  plaintiff  in  the  above  entitled 
action,  and  that  on  the.  eighth  da.y  oi  July,  i896,  judgment  in  said 
action  was  duly  recovered  and  entered  against  the  said  Richard  Roe, 
defendant  above  named. 

II.  That  thereafter  execution  against  the  property  of  the  said 
defendant,  Richard  Roe,  was  duly  issued,  and  thereafter  returned 
wholly  unsatisfied.2 

III.  That  thereafter  and  on  the  tenth  day  of  October,  i896,  an  order 
for  the  examination  of  the  said  Richard Roe^  in  supplementary  proceed- 
ings was  duly  obtained,  and  the  said  order  was,  on  the  eleventh  day  of 
October,  i896,  duly  served  upon  the  said  Richard  Roe;  and  that  a  copy 
of  the  said  order  and  of  the  affidavit  of  the  service  of  said  order  upon 
Richard  Roe  are  annexed  to  this  affidavit  and  made  a  part  hereof. 

IV.  That  on  the  twenty -second  d^y  of  October,  iS96,  at  eleven  o'clock  in 
the /(i'/'^noon  of  said  day,  the  deponent  attended  before  Honorable 
Roger  A.  Pryor,  one  of  the  justices  of  this  court,  at  the  chambers  thereof 
held  in  the  county  court-house  in  the  city  of  New  York,  and  there  re- 
mained for  the  space  of  one  hour  prepared  to  take  the  deposition  of  the 
said  Richard  Roe,  pursuant  to  the  said  order,  but  that  the  said  Richard 
Roe,  judgment  debtor  herein,  failed  to  appear  before  the  said  justice 
at  the  place  aforesaid  during  the  time  above  mentioned,  thus  dis- 
obeying the  aforesaid  order. 

V.  That  at  the  said  time  and  place  the  deponent  caused  the  said 
Richard  Roe  to  be  duly  and  repeatedly  called,  but  that  he  failed  to 
appear,  whereupon  deponent  had  his  default  duly  noted. 

Edward  Green. 
Sworn  to  before  me  this  twenty-eighth  day  of  October,  i896. 

Charles  Rice, 
Notary  Public,  N  Y.  County. 

Sk  To  Pay  Money  to  Receiver.* 

order,  in  proceedings  supplementary  to  motion  to  punish  a  third  person  for  con- 
execution,  "  enjoining  and  restraining  tempt  in  not  appearing  was  denied, 
the  debtor  from  making  any  transfer  Sloan  v.  Higgins,  i  Law  Bui.  59. 
or  other  disposition  of  his  property  not  8.  Misnomer  of  Defendant. — Where  the 
exempt  by  law  from  execution,  or  from  name  of  the  defendant  is  wrongly  stated 
any  interference  therewith,"  the  affi-  both  in  the  judgment  and  the  order,  it 
davits  must  show  affirmatively  that  the  is  not  a  contempt  for  him  to  fail  to  corn- 
money  or  property  which  the  defendant  ply  with  the  order  for  examination,  even 
has  received  or  paid  out,  or  that  some  though  he  is  the  real  person  intended, 
part  of  it,  was  due  him  or  was  earned  Muldoon  v.  Pierz,  i  Abb.  N.  Cas.  (N.  Y. 
by  him  prior  to  the  date  of  the  order.  Supreme  Ct.)  309.  But  by  appearance 
Potter  V.  Low,  16  How.  Pr.  (N.  Y.  Su-  and  examination  without  objection,  the 
preme  Ct.)  549.  right  to  raise  the  question  of  misiiomer 

1.  Affidavit  by  Attorney.  —  Where  the  is  waived.  Matter  of  Johns,  i  Law 
affidavit  is  made  by  an  attorney,  he  need  Bui.  75. 

not  swear  to  or  prove  his  authority  to  4.  Demand   Necessary,  —  To    bring    a 

act.     Miller  v.  Adams,  52  N.  Y.  409.  party   into  contempt  for  disobedience 

2.  Ezecntion  Betamed  Unsatisfied. —  of  an  order  or  judgment  requiring  the 
Where  it  did  not  appear  that  the  execu-  payment  of  money  or  the  delivery  of 
tion  had  been  returned  unsatisfied,  a  property,    it  is   not   sufficient  that  the 

243  Volume  5. 


6183.  CON  TEMP  T.  6 1 84. 

Form  No.  6183. 
(Precedent  in  Cartwright's  Case,  114  Mass.  233.) 

Respectfully  represents  to  the  Justices  of  the  Supreme  Judicial 
Court  James  C.  Davis,  who  has  been  heretofore  appointed  one  of  the 
receivers  of  the  Hide  &'  Leather  Insurance  Company,  "that  John  W. 
Cartwright,  one  of  the  receivers  of  said  company,  has  failed  and 
neglected  to  comply  with  the  order  of  this  court  made  on  the  thir- 
teenth day  of  December  current,  whereby  he  was  directed  to  pay  into 
the  hands  of  the  said  James  C.  Davis,  receiver  as  aforesaid,  on 
or  before  Wednesday,  the  seventeenth  day  of  December  current,  the  sura 
of  thirteen  thousand  five  hundred  and  sixty-five  and  ninety-seven  otie- 
hundredths  dollars,  to  be  administered  as  part  of  the  assets  of  the 
said  company,  and  that  the  said  Cartwright  has  not  paid  to  him  any 
part  of  the  said  sum. 

And  the  said  James  C.  Davis  further  represents  unto  your  honors 
that  the  account  which  was  annexed  to  the  said  order  of  December  13th 
was  prepared  by  him  from  the  books  of  the  receivers  of  the  said 
company,  and  that  it  is  just  and  true;  that  of  the  amount  appearing 
to  be  due  from  said  Cartwright  to  said  receivers  by  said  account, 
being  %13,565.9T,  in  all,  the  sum  of  thirteen  hundred  and  forty-two  and 
fifty-three  one-hundredths  dollars  ($75^.5-5)  was  charged  for  interest, 
at  the  rate  of  six  per  cent,  per  annum,  upon  the  indebtedness  of  said 
Carttvright  X.O  said  receivers;  and  the  sum  of  sixteen  hundred  and  fifty 
dollars  (^1650),  for  money  loaned  to  said  Cartwright  by  said  Hide  cr* 
Leather  Insurance  Company  before  the  appointment  of  said  receivers, 
which  has  never  been  paid  to  the  said  receivers;  and  that  the  remain- 
ing sums  charged  in  said  account,  amounting  to  ten  thousand  five  hun- 
dred and  seventy-three  and  forty-four  one-hundredths  dollars  i%10,513.^Jt), 
are  sums  of  money  which  were  withdrawn  by  the  said  Cartwright 
from  the  assets  of  the  said  company,  in  the  hands  of  the  receivers 
thereof,  from  time  to  time  at  the  dates  and  in  the  amounts  shown  by 
said  account,  and  appropriated  by  him  to  his  own  personal  use,  as  the 
saXdi  James  C.  Davis  i?,  informed  and  believes;  and  that  such  with- 
drawal and  appropriation  has  not  been  at  any  times  directed  or 
authorized  by  any  order  of  this  court. 

James  C.  Davis,  Receiver, 

December  18,  iS73. 

Suffolk,  ss. 

Subscribed  and  sworn  to  before  me, 

James  G.  Freeman^  Justice  of  the  Peace. 

{e)  Subpoena. 

Form  No.  6184.' 
The  Circuit  Court  for  the  County  of  Wayne. 

order  or  Judgment  be  served  upon  him  mand;  and  where  the  order  is  to  deliver 

and  he  be  made  fully  acquainted  with  property  over  to  a  receiver  the  property 

its  effect;  but,   in   addition    thereto,    a  must    be    demanded    by  the   receiver 

compliance  with  the  order  or  judgment  personally.      McComb  v.   Weaver,   il 

must  be  explicitly  demanded  by  a  party  Hun  (N.  Y.)  271. 

who   has  a  right  to  make  such  a  de-  1.  Michigan.  —  How.      Anno.     Stat. 

248  Volume  5. 


6185.  CONTEMPT.  6186. 

John  Doe         ) 
against  > 

Leonard  A.  Ford.  ) 
State  of  Michigan^  \ 
County  of  Wayne.   \  ^^' 

Leonard  A.  Ford^  the  defendant  in  this  cause,  being  duly  sworn,  de- 
poses and  says,  that  on  the  ninth  day  of  April,  at  the  city  of  Detroit 
in  said  county,  he  served  the  annexed  subpoena  on  Richard  Roe, 
the  witness  named  therein,  personally,  by  then  and  there  showing  to 
the  said  Richard  Roe  the  said  subpoena,  with  the  seal  of  the  court 
thereon,  and  delivering  to  him  a  true  copy  thereof,  and  paying  to 
the  said  Richard  Roe,  at  the  same  time  and  place  aforesaid,  the  sum 
of  one  dollar  and  ten  cents,  for  his  fees  for  traveling  to  and  from  the 
court  named  in  the  said  subpoena,  and  for  his  attendance  thereat. 
And  this  deponent  further  says  that  the  said  Richard  Roe  is  a  material 
witness  for  him  on  the  trial  of  this  cause,  without  whose  testimony 
he  cannot  safely  proceed  to  the  trial  thereof,  as  he  is  advised  by 
Joseph  Story,  Esq.,  his  counsel  therein,  to  whom  he  has  fully  and 
fairly  stated  the  case  in  this  cause,  and  what  he  expects  to  prove  by 
the  said  Richard  Roe,  and  as  this  deponent  verily  believes.  And 
this  deponent  further  says  that  the  said  Richard  Roe  has  wholly 
failed  to  attend  this  court  as  a  witness  for  this  deponent  in  pursuance 
of  the  said  subpoena,  without  any  reasonable  excuse  known  to  this 
deponent. 

.  Leonard  A.  Ford. 

Sworn  to  and  subscribed  this  seventeenth  day  of  April,  a.  d.  \%96. 

Abraham  Kent,  Justice  of  the  Peace. 

b.  Information  for  Contemptuous  Publication.  > 

Form  No.  6185. 

(Precedent  in  People  v.  Wilson,  64  III.  197.) 
State  of  Illinois,  )  Northern  Grand  Division. 

r  SS 

Supreme  Court,    j      *     September  Term,  a.  d.  i87^. 
The  People  of  the  State  of  Illinois        ) 

v.  >  Information. 

Charles  L.  Wilson  and  Andrew  Shuman.  ) 

And  now  come  the  said  People,  by  Washington  Bushnell,  Attorney 
General,  and  represent  to  the  court  that  on  the  16th  day  of  October, 

(1882),   S  7257,   subs.   5,   §  7259.      See  clear  and  unmistakable  cases,  such  as 

also  list  of   statutes  cited  supra,  note  contemptuous  publications  in  a  nevvs- 

I,  p.  228.  paper.      The   statement    in    this   case, 

1.  In  State  v.  Frew,  24  W.  Va.  416,  it  which  was  sufficient,  was  as  follows: 

was  held  that  although  in  cases  of  con-  "To   the    Honorable    Judges    of    the 

structive  contempt  the  proceedings  are  Supreme  Court   of  Appeals   of    West 

usually  based  on  an  affidavit  or  other  Virginia. 

sworn    statement  of   the   facts   consti-  As  is  well  known  to  the  court,  there 

tutiftg  the  contempt,  yet  such  an  affi-  was  pending  here  on  the   i8th  day  of 

davit  or  statement  is  not  always  essen-  June,  12184,  ^"^  there  is  now   pending 

tial,  but  that  the  court  may  act  on  its  and   undetermined,    a    proceeding   by 

own  information  or   on    the   unsworn  mandamus,  at  the  relation  oi  Joseph  S. 

statement  of  a  member  of  the  bar  in  Mitter,  Auditor,  SLgainst  T./i.BucAanan, 

244  Volume  5. 


6185. 


CONTEMPT. 


6185. 


A.  D.  1 87^,  there  was,  and  still  is,  pending  in  this  court,  a  certain  cause 
for  the  adjudication  and  determination  of  this  court,  wherein  one 
Christopher  Rafferty  is  plaintiff  in  error  and  The  People  of  the  State  of 
Illinois  are  defendants  in  error,  and  that,  on  the  same  day  there  was 
published  in  the  city  of  Chicago^  in  said  State,  a  certain  daily  news- 
paper called  the  Chicago  Evening  Journal,  of  which  said  paper  on  said 
day  the  said  Charles  L.  Wilson  was  proprietor  and  the  said  Andrew 
Shuman  was  editor,  and  that  said  Charles  L.  Wilson  and  Andrew 
Shuman,  on  the  said  day  caused  to  be  published  in  said  paper,  of  and 
concerning  said  cause  so  pending  in  this  court,  and  of  and  concern- 
ing this  court  and  its  supposed  action  with  reference  to  said  cause,  a 


assessor  of  Brooke  county.  This  pro- 
ceeding involves  the  constitutionality 
of  the  exemption  act,  contained  in  sec- 
tion 43  of  chapter  I2  of  Acts  of  i88i, 
and  the  propriety  of  what  is  well 
known  throughout  the  State  as  the 
'  supplemental  assessment  order.' 

I  have  the  honor  to  be  a  member  of 
the  bar  of  this  Court  and  to  be  the 
counsel  for  the  relator  in  the  cause  re- 
ferred to. 

On  the  i8th  day  oljune,  t'ae  Wheeling 
Intelligencer^  a  newspaper  of  general 
circulation  published  in  the  city  of 
Wheeling,  contained  an  editorial  article, 
referring  expressly  to  the  questions  I 
have  mentioned  as  involved  in  said 
cause  and  referring  by  implication  to 
that  cause  itself.  This  article  stated 
that  three  out  of  the  four  judges  of 
your  honorable  Court  had  told  a  Demo- 
cratic caucus,  more  than  a  year  ago,  in 
effect  that  the  Court  would  sustain  the 
'supplemental  assessment  order'  and 
hold  the  exemption  statute  unconsti- 
tutional. The  article  then  says  that  it 
was  not  intended  that  '  the  purpose  of 
the  Court'  should  be  made  public,  and 
intimates  that  the  publication  of  its 
purpose  '  may  induce  the  Court  to 
change  its  mind.'  I  beg  leave  to  sub- 
mit with  this  communication  a  copy 
of  the  newspaper  containing  the  article 
referred  to. 

This  article  has  every  appearance  of 
an  attempt  to  affect  the  decision  of  the 
Court  in  the  case  of  Miller  v.  Buchanan, 
and  to  intimidate  it  into  deciding 
against  the  relator.  While  I  do  not 
believe  that  any  effect  will  be  produced 
upon  the  Court  which  will  affect  the 
case,  still  I  deem  it  my  duty  as  an 
officer  of  the  Court  and  as  counsel  for 
the  relator,  not  to  permit  so  palpable 
an  assault  upon  the  purity  and  inde- 
pendence of  the  administration  of  jus- 
tice to  pass  unnoticed. 


The  firm  of  Frew,  Campbell  6*  Hart, 
composed  oljohn  Frew,  A,  W.  Campbell 
and  C.  B.  Hart,  are,  as  I  am  informed, 
the  publishers  of  the  Wheeling  Intelli- 
gencer, 

Should  the  members  of  this  Court  so 
far  forget  their  duty  and  dignity  as  to 
express  in  advance,  for  political  or 
other  purposes,  their  opinions  upon 
cases  which  may  come  before  them,  as 
judges,  no  one  would  be  quicker  than 
I  to  condemn  such  a  practice.  If  it 
could  be  shown  me  that  any  of  your 
honors  had  been  guilty  of  what  the 
Intelligencer  lays  to  your  charge,  I 
would  willingly  join  the  editors  of  that 
paper  in  bringing  the  matter  before  the. 
proper  tribunal  at  the  proper  time- 
But  whether  these  matters  are  true  or 
false,  the  case  of  Miller  v.  Buchanan  is 
now  pending  and  you  alone  must  de- 
cide it.  While  it  is  before  you,  your 
conduct  with  respect  to  the  case  itself 
and  the  questions  in  it  is  not  tho 
proper  subject,  in  my  opinion,  oi. 
public  criticism. 

Disclaiming  any  feeling  of  resenf- 
ment  or  animosity  against  the  pub- 
lishers of  the  Intelligencer,  and  acting 
solely  from  a  desire  to  do  my  profes- 
sional duty,  I  now  lay  the  matter  be- 
fore the  court,  and  shall  not  feel  that  I 
am  called  upon  either  to  suggest  to  the 
Court  what  it  shall  do  in  the  matter 
or  to  take  part  in  the  prosecution  of 
any  proceedings,  which  may  be  insti- 
tuted, should  the  Court  see  fit  to  act. 
With  great  respect, 

Henry  M.  Russell. 
June  2j,  1SS4." 

An  information  for  contempt  on  ac- 
count of  a  newspaper  article  which 
charges  that  the  publication  was  "  false 
and  grossly  inaccurate  "  is  insufficient 
if  it  fails  to  specify  in  what  respects 
the  article  is  false.  Worland  v.  Stale, 
82  Ind.  49. 


245 


Volume  5. 


6186. 


CONTEMPT. 


6186. 


certain  article,  in  the  words  following,  that  is  to  say:  {Here  was  set 
out  a  copy  of  the  contemptuous  article^}- 

Wherefore  the  said  Attorney  General,  for  and  on  behalf  of  the  said 
People,  moves  this  court  for  a  rule  upon  the  defendants,  Charles  L. 
Wilson  and  Andrew  Shuman,  to  be  and  appear  before  this  court,  on  a 
day  to  be  named,  and  show  cause,  if  any  they  or  either  of  them  have, 
why  an  attachment  should  not  issue  against  them  for  a  contempt  of 
this  court  in  respect  to  the  publication  of  said  article. 

Washington  Bushnell,  Attorney  General. 

c.  Motion  for  Attachment  for  Failure  to  Obey.* 

(1)  Injunction. 

Form  No.  6  i  8  6 . 
(Precedent  in  Fort  Worth  St.  R.  Co.  v.  Rosedale  St.  R.  Co.,  63  Tex.  163.)' 
Fort  Worth  Street  Railway  Company,  Appellant, 

V. 

Rosedale  Street  Railway  Company,  Appellee. 
In  the  Supreme  Court  of  the  State  of  Texas. 
county. 


Appeal  from  Tarrant 


1.  The  contemptuoas  publication  was  in 
the  language  following,  to  wit: 
"  The  Case  of  Rafiferty. 

At  the  time  a  writ  of  supersedeas 
was  granted  in  the  case  of  the  mur- 
derer Chris.  Rafferty,  the  public  was 
blandly  assured  that  the  matter  would 
be  examined  into  by  the  supreme  court 
and  decided  at  once;  that  possibly  the 
hanging  of  this  notorious  human 
butcher  would  not  be  delayed  for  a 
single  day.  Time  speeds  away,  how- 
ever, and  we  hear  of  nothing  definite 
being  done.  Rafferty's  counsel  seems 
to  be  studying  the  policy  of  delay,  and 
evidently  with  success.  The  riffraff 
who  contributed  fourteen  hundred  dol- 
lars to  demonstrate  that  '  hanging  is 
played  out'  may  now  congratulate 
themselves  on  the  success  of  their 
little  game.  Their  money  is  operating 
splendidly.  We  have  no  hesitancy  in 
prophesying  clear  through  to  the  end 
just  what  will  be  done  with  Rafferty. 
He  will  be  granted  a  new  trial.  He 
will  be  tried  somewhere,  within  a  year 
or  two.  He  will  be  sentenced  to  im- 
prisonment for  life.  Eventually  he 
will  be  pardoned  out.  And  this  in 
spite  of  all  our  public  meetings,  reso- 
lutions, committees,  virtuous  indig- 
nation, and  what  not.  And  why? 
Because  the  sum  of  fourteen  hundred 
dollars  is  enough  nowadays  to  enable 


a  man  to  purchase  immunity  from  the 
consequences  of  any  crime.  If  next 
winter's  session  of  the  legislature  does 
not  hermetically  seal  up  every  chink 
and  loop-hole  through  which  mur- 
derers now  escape,  it  will  deserve  the 
bitter  censure  of  ever  honest  man  in 
Illinois.  We  must  simplify  our  modes 
of  procedure  in  murder  trials.  The 
criminal  should  be  tried  at  once,  and 
when  found  guilty  should  be  hanged 
at  once,  and  the  quicker  hanged  the 
better.  The  courts  are  now  completely 
in  the  control  of  corrupt  and  mercenary 
shysters — the  jackals  of  the  legal  pro- 
fession—  who  feast  and  fatten  on 
human  blood  spilled  by  the  hands  of 
other  men.  All  this  must  be  remedied. 
There  can  be  found  a  remedy,  and  it 
must  be  found." 

2.  See  also  forms  of  motion  in  2  Rev. 
Swift's  Dig.,  p.  776;  Baldwin  v.  State, 
II  Ohio  St.  681. 

3.  In  this  case  the  defendants  were 
adjudged  not  guilty  of  contempt  be- 
cause the  injunction  order  was  limited 
in  duration  on  its  face  "  only  until  the 
hearing."  The  cause  was  not  kept 
alive,  therefore,  after  the  hearing  by 
appeal,  but  as  these  facts  do  not  appear 
in  the  motion  and  the  form  is  otherwise 
good,  it  serves  as  a  model  where  the 
injunction  has  been  disobeyed. 


246 


Volume  5. 


6186.  CON  TEMP  T.  6186. 

To  the  Honorable  Supreme  Court  of  the  State  of  Texas. 

Your  complainant,  the  Fort  Worth  Street  Railway  Company,  respect- 
fully respresents  to  the  court: 

That,  heretofore,  to  wit,  on  the  seventeenth  day  of  September,  j8S4, 
your  complainant  applied  to  the  district  court  of  Tarrant  county, 
Texas,  for  an  injunction  to  enjoin  and  restrain  the  Rosedale  Street 
Railway  Company  from  building  or  constructing  any  street  railway 
track  on  Houston  street,  in  the  city  of  Fort  Worth,  in  Tarrant  county, 
Texas,  until  the  respective  rights  of  complainant  and  said  Rosedale 
Street  Railway  Company  had  been  adjudicated  and  settled  by  the  here- 
inafter mentioned  suit,  then  pending  in  said  district  court  of  Tarrant 
county,  to  determine  the  question  as  to  which  of  said  two  companies 
had  the  superior  right  to  build  and  construct  a  street  railway  on  said 
Houston  street;  that  said  district  court  of  Tarrant  county  granted  said 
application  and  issued  a  writ  of  injunction  enjoining  and  restraining 
said  Rosedale  Street  Railway  Company,  its  officers,  agents  and  servants 
from  building  or  constructing  any  street  railway  track  on  said  Hous- 
ton street  until  the  respective  rights  of  complainant  and  said  Rosedale 
Street  Railway  Company  had  been  adjudicated  and  settled  by  said  suit. 

That  complainant  was  defendant  in  the  suit  in  which  it  obtained 
said  injunction,  namely  the  suit  of  the  Rosedale  Street  Railway  Com- 
pany V.  The  Fort  Worth  Street  Railway  Company,  that  said  suit  is  now 
in  appeal  in  this  (the  Supreme)  court. 

Said  Fort  Worth  Street  Railway  Company  being  appellant,  and  said 
Rosedale  Street  Railway  Company  being  appellee,  and  the  said  suit  was 
brought  to  determine  which  of  the  parties  complainant  or  said  Rose- 
dale Street  Railway  Company,  had  the  superior  right  to  build  and  con- 
struct a  street  railway  on  said  Houston  street.  That  in  said  suit,  said 
district  court  of  Tarrant  county,  Texas,  on  t\\t  fifteenth  day  of  May, 
iSS5,  rendered  a  judgment  decreeing  the  dissolution  of  said  injunc- 
tion and  holding  same  for  naught  and  adjudging  the  superior  right 
to  construct  and  build  a  street  railway  on  said  Houston  street  to  be 
in  said  Rosedale  Street  Railway  Company. 

That  this  complainant  has  prosecuted  an  appeal  from  said  judg- 
ment to  the  Supreme  Court  of  the  State  of  Texas,  and  said  appeal  is 
now  pending  in  said  Supreme  Court  at  Austin,  Texas. 

That  the  effect  of  said  appeal  is  to  continue  in  force  said  injunc- 
tion.    That  heretofore,  to  wit,  on  the day  of  March,  i887, 

said  Rosedale  Street  Railway  Company,  its  officers,  agents  and  servants, 
under  the  guise  and  color  and  in  the  name  of  the  Queen  City  Street 
Railway  Company,  which,  complainant  is  informed  and  believes,  and 
therefore  charges,  has  no  legal  corporate  existence,  commenced  the 
construction  and  building  of  a  street  railway  track  on  said  Houston 
street,  and  is  now  prosecuting  said  work. 

That  said  Queen  City  Street  Railway  Company  filed  articles  of  incor- 
poration in  the  office  of  the  Secretary  of  State  of  the  State  of  Texas, 
as  far  back  as  October  20,  i88J,  but  it  never  legally  organized  or  took 
any  steps  to  begin  active  operation  to  construct  a  line  of  railway 
until  after  said  injunction  was  sued  out  as  aforesaid.  That  at  some 
time  during  the  year  i8<?7  said  Queen  City  Street  Railway  Company 
organized,  or  pretended  to  do  so,  by  electing  officers,  the  names  of 

247  Volume  5. 


6186.  CONTEMPT.  6186. 

whom  are  unknown  to  complainant,  except  that  P.  M.  Willing  was 
elected  president,  Joe  Mayer,  treasurer,  and  _/.  C.  Scott,  secretary, 
and  Theo.  Vogel,  David Boaz,  P.  M.  Willing,  and  J.  C.  Scott,  directors. 
That  John  Tierney  is  a  stockholder  in  said  Queen  City  Company;  that 
said  Theo.  Vogel  is  secretary  and  treasurer  of  said  Rosedale  Street  Rail- 
way Company,  that  said  Joe  Mayer  is  treasurer  of  said  Qneen  City 
Street  Railway  Company;  that  said  John  Tierney  is  president  of  said 
Rosedale  Street  Railway  Company  and  one  of  its  directors  as  well  as  a 
director  of  the  said  Queen  City  Street  Railway  Company;  that  said 
David  Boaz  is  director  of  said  Rosedale  Street  Railway  Company,  as 
well  as  of  said  Queen  City  Railway  Company,  and  that  said  John  Tier- 
ney is  a  director  of  said  Rosedale  Street  Railway  Company,  as  well  as  a 
stockholder  of  the  Queen  City  Street  Railway  Company. 

The  complainant  is  informed  and  believes,  and  so  charges,  that 
said  Vogel,  Boaz,  Mayer  and  Tierney  own  a  majority  of  the  stock  of 
said  Queen  City  Railway  Company,  and  they  are  each  large  share- 
holders in  said  Rosedale  Street  Railway  Company;  that  before  said 
work  of  constructing  and  building  said  street  railway  track  on  said 
Houston  street  as  aforesaid  by  said  Rosedale  Company  in  the  name  of 
said  Queen  City  Company,  said  Vogel,  Boaz,  Tierney  and  Mayer  each 
had  notice  of  said  injunction  sued  out  by  complainant  against  said 
Rosedale  Street  Railway  Company  zs  aforesaid.  That  the  work  of  con- 
structing and  building  said  street  railway  track,  begun  and  now  being 
prosecuted  on  said  Houston  street  in  the  name  of  and  ostensibly  for 
said  Queen  City  Railway  Company,  but  really  in  the  interest  of  and 
for  the  benefit  of  said  Rosedale  Street  Railway  Company,  has  been  and 
is  now  being  done  on  and  over  the  same  territory  from  the  building 
and  construction  of  a  street  railway  track  on  which  said  Rosedale 
Street  Railway  Company  was  enjoined  and  restrained  as  aforesaid,  and 
on  which  it  claimed  the  right  to  build  and  construct  said  railway 
track  in  said  suit,  the  determination  of  its  right  to  do  so  in  preference 
to  and  exclusive  of  complainant,  being  the  main  object  of  said  suit. 
That  said  pretended  organization  of  said  Queen  City  Street  Railway 
Company  was  made  by  the  officers  and  directors  of  said  Rosedale  Street 
Railway  Company,  and  was  made  for  the  purpose  of  enabling  said 
Rosedale  Street  Railway  Company  to  evade  the  effect  of  said  injunction, 
and  that  said  building  and  construction  of  said  street  railway  track 
on  said  Houston  street  in  the  name  of  said  Queen  City  Street  Railway 
Company,  is  being  done  for  the  use  and  benefit  of  the  said  Rosedale 
Street  Railway  Company,  with  an  agreement  that  when  completed  said 
Rosedale  Street  Railway  Company  is  to  run  and  operate  its  cars  thereon ; 
that  the  said  Vogel,  Boaz,  Mayer  and  Tierney  are  encouraging,  advis- 
ing and  aiding  in  the  work  of  building  the  road  of  the  pretended 
Queen  City  Railway  Company;  that  the  said  parties  reside  in  Tarrant 
county,  and  the  place  of  business  of  the  said  street  railway  compa- 
nies is  Fort  Worth,  in  said  county. 

Wherefore  complainant  prays  that  said  Rosedale  Street  Railway 
Company  and  said  Queen  City  Railway  Company,  and  said  Theo.  Vogel, 
David  Boaz,  John  Tierney  Sind  Joe  Mayer  h&  attached,  and  required 
to  show  cause  why  they  should  not  be  punished  for  contempt  for 
disobeying  said  injunction,  and  that  they  be  required  to  tear  up  the 

248  Volume  5. 


6187.  CON  TEMP  T.  6188. 

track  which  they  have  built  on  said  Houston  street  in  violation  of 
said  injunction,  and  restore  said  Houston  street  to  the  same  condi- 
tion in  which  it  was  before  they  disregarded  said  injunction,  and 
complainant  prays  for  general  relief. 

John  D.  Templeton, 
J.  W.  Terry, 

Counsel  for  Appellant. 
\{yerification)Y 

(2)  Judgment. 

Form  No.  6187. 

(Precedent  in  State  v.  McKinnon,  8  Oregon  488.)* 

Now  comes  the  plaintiff  above  named,  and  moves  the  Hon.  J.  F. 
Watson,  judge  of  the  above  entitled  court,  upon  the  foregoing  affi- 
davit, for  a  warrant  of  arrest  against  the  said  defendants,  E.  J.  Page 
and  John  H.  Shupe,  to  answer  for  contempt  in  neglecting  and 
refusing  to  obey  said  judgment. 

W.  R.  Willis,  Plaintifif's  Attorney. 

d.  Petition  for  Attachment  for  Failure  to  Obey  Injunction.' 

Form  No.  6  i  8  8  .* 

Carroll,  ss.  To  the  Hon.  John  Marshall,  Chief  Justice  of  the  Supreme 
Court: 

Jane  Doe,  of  Ossipee,  in  said  county  of  Carroll,  complains  against 
John  Doe,  of  said  Ossipee,  and  says  that  she  is  the  wife  of  said  John 
Doe,  and  on  the  sixteenth  day  of  October,  i897,  she  caused  to  be  filed, 
in  the  office  of  the  clerk  of  said  court  of  said  county,  her  libel  pray- 
ing for  a  divorce  from  said  John  Doe,  and  for  other  relief,  for  the 
causes  therein  set  forth;  and  upon  her  petition  a  writ  of  injunction 
was  duly  issued  by  said  justice  on  the  twentieth  day  of  October,  i897, 
enjoining  and  prohibiting  saidy^^«  Doe  from  imposing  any  restraint 
upon  her  personal  liberty  during  the  pendency  of  said  libel,  which 
was  duly  served  upon  said  John  Doe  on  the  twentieth  day  of  October, 
iS97. 

Yet  the  said  John  Doe  well  knowing  the  premises,  but  wholly 
regardless  of  the  said  injunction,  on  the  twenty-fifth  day  of  October, 
1 897,  at  Ossipee  aforesaid,  in  the  county  of  Carroll  aforesaid,  with 

1.  The  motion  was  verified  by  the  to  restrain  defendants  from  removing 
agent  of  the  Fort  Worth  Street  Railway,  certain  machinery  in  their  possession, 
but  the  verification  is  not  set  out  in  the  Stimpson  v.  Putnam,  41  Vt.  238. 
reported  case.  For  the  form  of  verifi-  Where  the  contempt  consisted  in  the 
cation  in  a  particular  jurisdiction  con-  contemner,  a  newspaper  reporter,  hav- 
sult  the  title  Verifications.  ing  concealed  himself  in  the  jury  room 

2.  This  motion  was  annexed  to  the  during  the  deliberations  of  the  jury, 
affidavit  set  out  supra,  in  Form  No.  Matter  of  Choate,  (Oyer  &  T.  Ct  )  8 
6178.  N.  Y.  Crim.  Rep.  I. 

S.  See  also  the  substance  of  petitions  4.  This  form  is  adapted  from  the 
as  follows:  form  set  out  in  56  N.  H.  620.     See  also 

Where  the  contempt  consisted  in  the    the  form  in  38  N.  H.  623. 
disobeying,  a  writ  of  injunction  issued 

249  Volume  5. 


6189.  CONTEMPT.  6189. 

force  and  arms  made  an  assault  upon  the  said  Jane  Doe,  and  beat  and 
bruised  her,  and  imprisoned  and  deprived  her  of  her  personal  liberty 
for  the  space  of  twenty  days,  from  said  twenty-fifth  day  of  October^ 
iS97,  to  the  fourteenth  day  of  November,  i897;  in  contempt  of  said 
injunction,  and  against  the  peace  and  dignity  of  the  state. 

Wherefore  she  prays  that  sdiid  John  JDoe  msiy  be  held  to  answer  for 
said  contempt,  and  that  justice  may  be  had  in  the  premises. 

Jane  Doe. 
Carroll,  ss.  Noziember  15,  i876. 

Jane  Doe  personally  appeared,  and  made  oath  that  the  above  com- 
plaint, by  her  subscribed,  is,  in  her  belief,  true. 
Before  me, 

Abraham  Kent,  Justice  of  the  Peace. 

2.  Order  to  Show  Cause.^ 
a.  For  Contemptuous  Petition  for  Rehearing:. 

Form  No.  6189. 

(Precedent  in  In  re  Woolley,  11  Bush  (Ky.)  loi.)' 

The  Commonwealth  of  Kentucky,  \ 

Court  of  Appeals,  July  2, 1874.  ) 

Whereas,  J^obt.  W.  Woolley,  an  attorney  and  officer  or  this  court,  did, 
on  the ^7/-^  day  oi  June,  i874,  while  exercising  his  functions  and 
privileges  as  attorney  and  officer  aforesaid,  file  ^  in  open  court  a 
printed  petition  for  a  rehearing  of  the  appeal  in  the  case  oi  F.  D.  B. 
O.Gray  v.J.M.  Reamer  and  others,  then  pending  therein,  which  contains 
language  not  only  disrespectful,  but  insulting  to  the  court;  and 
whereas,  on  the  1st  day  of  July,  the  said  Woolley,  of  his  own  motion, 
filed  in  open  court,  a  paper  denominated  or  styled  "Statement  of^. 
W.  Woolley"  in  which,  while  disclaiming  intentional  disrespect  to  the 
court  in  the  matter  of  the  petition  in  the  case  of  Gray  v.  Reamer  and 
others,  he  reiterates  some  of  the  most  offensive  charges  and  imputa- 
tions contained  therein. 

Now  therefore  the  said  Robert  W.  Woolley,  attorney  and  officer  afore- 
said, is  hereby  ruled  and  required  to  appear  in  the  Court  of  Appeals, 
at  the  capitol  in  Frankfort,  on  the  8th  day  of  September,  i87^  and 
show  cauge,  if  any  he  can,  why  his  authority  to  practice  as  an  attor- 
ney and  officer  of  said  court  shall  not  (on  account  of  the  filing  of  said 

1.  Precedents.  —  See  also  forms  in  sary,  as  the  petition  for  a  rehearing  is 
People  2/.  Pearson,  4  111.  271;  Wicker  z*.  not  a  pleading,  but  an  argument  ad- 
Dresser,  14  How.  Pr.  (N.  Y.  Supreme  dressed  to  the  court,  and  the  contempt 
Ct.)  466;  Spinning  v.  Ohio  L.  Ins.,  etc.,  was  therefore  committed  in  presence  of 
Co.,    2    Disney    (Ohio)    336;    State    v.  the  court. 

Kaiser,  20  Oregon   51;  U.  S.  v.  Church        3.  Where  the  contempt  consists  in  fil- 

of  Jesus  Christ,  6  Utah  79.  ing  an  offensive  brief  or  paper,  the  party 

2.  It  was  claimed  in  this  case  that  the  cited  to  show  cause  why  he  should  not 
rule  was  not  sufficiently  specific,  in  that  be  punished  for  filing  the  same  may  rest 
it  did  not  specifically  aver  or  state  the  upon  his  exceptions  to  the  sufficiency 
language  deemed  disrespectful  and  in-  of  the  citation  if  it  fails  to  charge  that 
suiting  and  does  not  in  terms  set  out  he  wrote,  signed  or  filed  the  offensive 
the  charges  and  imputations  regarded  brief  or  paper.  Ex  p.  Rust,  38  Tex. 
as  offensive.     This  was  held  unneces-  344. 

250  Volume  5. 


6190. 


CONTEMPT. 


6190. 


petition  and  statement)  be  revoked,  and  he  be  otherwise  punished 
for  the  contempt  hereinbefore  set  out. 

b.  For  Contemptuous  Publication.* 

Form  No.  6  190. 

(  Precedent  in  State  v.  Judge,  45  La.  Ann.  1251.)' 

State  of  Louisiana. 
Civil  District  Court  for  the  Parish  of  Orleans, 
Peter  Fabacher      \ 

V.  [-Division  "  C." 

Bryant  &>  Mathers.  ) 

1.  Precedent.  —  In  State  v.  Frew,  24 
W.  Va.  419,  it  was  held  that  the  notice 
plainly  and  explicitly  notified  the  de- 
fendants of  the  cause  and  nature  of  the 
offense  and  that  they  were  the  persons 
charged  with  its  commission.  Omitting 
formal  parts,  the  rule  was  as  follows: 

^''  Henry  M .  Russell,  esq.,  a  member  of 
the  bar  of  this  Court,  this  day  presented 
a  written  communication  addressed  to 
the  Court  referring  to  the  fact  that  on 
the  i8th  day  of  the  present  month  of 
June,  the  case  of  the  State  of  West  Vir- 
ginia ex  rel.  Joseph  S.  Miller,  Auditor, 
V.  T.  H.  Buchanan,  assessor  of  Brooke 
county,  upon  a  petition  for  mandamus, 
was  in  this  Court  pending  and  unde- 
termined; that  said  case  involved  the 
constitutionality  of  the  exemption  act, 
contained  in  section  43,  chapter  12  of  the 
Acts  of  1 881,  and  the  propriety  of  what 
is  well  known  throughout  the  State  as 
the  'supplemental  assessment  order'; 
that  he  was  the  counsel  for  the  relator 
in  said  case;  and  that  on  the  said/^M 
day  ol  June,  the  Wheeling  Intelligencer, 
a  newspaper  of  general  circulation  pub- 
lished in  the  city  of  Wheeling,  contained 
an  editorial  article  referring  to  the 
question  involved  in  said  case,  and  by 
implication  to  the  said  case  itself.  With 
this  communication  is  presented  a  copy 
of  said  newspaper  containing  said 
article.  The  Court  is  informed  that 
Frew,  Campbell  df  Hart,  consisting  of 
John  Frew,  A.  W.  Campbell  and  C.  B. 
Hart  are  the  proprietors  and  publish- 
ers of  said  newspaper,  and  that  said 
C.  B.  Hart  is  the  chief  editor  thereof. 
The  said  editorial  article  is  as  follows: 

'  The  State  campaign  seems  to  be 
shaping  itself.  It  leaks  out  that  the 
Supreme  Court  of  Appeals  is  to  be 
brought  to  the  rescue  in  a  decision 
affirming  the  constitutionality  of  the 
exemption  act,  and  declaring  the  sup- 
plemental assessment  order  to  be  law- 


ful and  right.  This  is  in  effect,  what 
was  promised  by  the  three  Supreme 
Court  judges  to  the  Democratic  caucus 
before  the  order  was  issued. 

It  might  be  thought  strange  that  any- 
body could  know  what  the  decision  of 
the  Supreme  Court  is  to  be  on  any  ques- 
tion. But  it  seemed  equally  strange 
that  three  out  of  four  judges  of  the 
Supreme  Court  told  the  Democratic 
caucus  more  than  a  year  ago  to  go 
ahead  and  rely  on  the  backing  of  the 
Court. 

The  present  understanding  is  that 
the  decision  is  to  be  rendered  before 
the  meeting  of  the  Democratic  State 
Convention  in  order  to  simplify  ^he 
situation.  It  is  also  understood  that 
this  move  is  not  intended  to  advance 
the  interests  of  Hon.  E.  Boyd  Faulkner. 

Of  course  it  was  not  intended  that 
the  purpose  of  the  Court  should  be 
made  public,  and  publicity  may  induce 
the  Court  to  change  its  mind,  just  to 
show  that  somebody  has  been  taking 
liberties  with  the  text  and  misrepre- 
senting the  Court.  We  shall  see  what 
we  shall  see.' 

It  is  therefore  considered  and  ordered 
by  the  Court  that  a  rule  be  and  is  here- 
by awarded  against  the  i.zXd.John  Frew, 
A.  W.  Campbell  and  C.  B.  Hart,  proprie- 
tors and  publishers  of  said  Wheeling 
Intelligencer,  and  said  C.  B.  Hart,  chief 
editor  thereof,  commanding  them  and 
each  of  them  to  appear  before  this  Court 
on  Saturday  morning,  June  28,  at  ten 
o'clock,  to  show  cause,  if  any  or  either 
of  them  can,  why  they  and  each  of 
them,  shall  not  be  attached  for  their 
contempt  of  this  Court  in  publishing 
the  aforesaid  article. 

It  is  further  ordered  that  service  of 
a  copy  of  this  order  on  the  said  parties 
above  named,  shall  be  considered  as 
service  of  the  said  rule." 

2.  It  was  held  in  this  case  that  the 


251 


Volume  5. 


6190.  CONTEMPT.  6190. 

Thomas  JEgan,  Jr.,  called  in  Warranty. 

On  motion  of  Lazarus,  Moore  &"  Lemie,  of  counsel  iox  Peter  Fabacher^ 
plaintiff  herein,  of  E.  W.  Huntington  and  Horace  L.  Dufour,  of  counsel 
for  Bryant  6^  Mathers,  defendants,  and  of  White,  Parlange  6^  Saunders, 
of  counsel  for  Thomas  Eagan,  called  in  warranty  —  and  on  giving  this 
court  to  be  informed  and  to  understand  that  there  is  now  pending 
before  this  court  in  this  division  a  cause  as  above  entitled  wherein 
Peter  Fabacher  is  plaintiff,  Bryant  6^  Mathers  are  defendants,  and 
Thomas  Eagan  is  defendant  called  in  warranty  of  said  Btyant  dr 
Mathers;  that  issue  was  joined  in  said  cause  upon  the  main  demand 
and  upon  the  call  in  warranty;  that  after  issue  so  joined  said  cause 
was  in  due  course  of  procedure  fixed  for  trial;  that  upon  the  prayer 
of  the  plaintiff  it  was  to  be  tried  by  jury. 

And  on  further  giving  the  court  to  be  informed  and  to  understand 
that  said  case  was  regularly  called  for  trial  on  Thursday,  March  16, 
i893,  and  a  jury  impaneled  and  sworn  to  try  the  issues  in  said  case 
—  that  the  trial  of  said  case  was  continued  until  Friday,  March  17, 
and  testimony  administered  for  and  on  behalf  of  plaintiff  in  support 
of  his  demand,  and  that  there  were  two  witnesses  sworn  on  said  trial, 
to  wit:  Peter  Fabacher,  the  plaintiff,  and  John  Mahone,  a  witness  for 
and  on  behalf  of  the  plaintiff;  that  prior  to  the  adjournment  on 
March  17,  the  jury  being  allowed  their  liberty  and  freedom,  they 
were  instructed  by  the  court  to  hold  no  converse  with  reference  to 
the  case  or  the  issues  therein,  and  were  especially  instructed  and 
directed  not  to  allow  any  one  to  discuss  the  case  which  they  the 
jury  held  as  jurors  under  consideration  for  a  verdict. 

And  on  further  giving  the  court  to  be  informed  and  to  understand 
that  the  case  was  only  partially  tried,  that  all  the  witnesses  for  the 
plaintiff  had  not  been  heard,  that  none  had  been  called  for  the 
defendants,  Bryant  &"  Mathers,  and  none  for  Thomas  Eagan,  called  in 
warranty,  and  that  the  case  was  continued  for  further  consideration 
by  the  court  and  the  jury  until  Tuesday,  March  21,  iS93,  at  11  o'clock 
A.  M.,  when  the  jury  were  by  said  court  directed  to  be  present  in 
court  to  hear  the  further  testimony  in  the  case  and  to  pass  upon  the 
issues  therein. 

And  on  giving  the  court  to  be  further  informed  and  to  understand 
that  a  newspaper  known  as  the  Times-Democrat,  and  published  by  the 
Times-Democrat  Publishing  Company,  oi  which  Ashton  Phelps  is  presi- 
dent, and  Page  M.  Baker  is  the  manager,  did  on  Sunday,  March  19, 
iS93,  publish  or  cause  to  be  published  and  circulated  throughout  the 
city  of  JVew  Orleans  the  daily  issue  of  said  paper,  in  which  was  con- 
tained a  commentary  or  criticism  upon  the  case  now  pending  before 

civil   district   court  for   the   parish   of  of  that  court,  under  proper  proceedings, 

Orleans  is  a  court  of  record  of  original  extends  to  both.     It  was  further  held 

general  jurisdiction,  and  is  not  an  in-  that  where  a  publication  in  a  newspaper 

ferior  court,  in  the  technical  sense   of  being  read  by  jurors  and  attendants  on 

that  term.     It  has  the  power  and  au-  the   courts  would   have  a  tendency  to 

thority  to  punish  for  contempt  of  court,  interfere  with  the  proper  and  unbiased 

and  though  the  proceedings  in  cases  of  administration  of  the  laws  in  pending 

constructive  contempt  <3iffer  from  those  cases,  it  may  be  adjudged  a  contempt 

in  cases  of  actual  contempt,  the  power  and  accordingly  punished. 

253  Volume  5. 


6191.  CONTEMPT.  6191. 

this  court  and  the  jury,  and  to  give  their  opinion  for  the  public's 
perusal,  of  the  relative  positions  of  the  parties  to  this  controversy, 
and  their  comments  upon  the  testimony  of  the  witnesses  who  had 
testified  in  said  case,  and  that  the  effect  of  the  said  publication  was 
to  operate  to  the  injury  of  all  the  parties  to  said  case,  and  was  a  dis- 
cussion of  the  case  out  of  the  hearing  of  the  court,  and  had  the 
effect  of  influencing  the  judgment  of  the  jurors,  who  have  been 
sworn  to  try  the  issues  upon  the  evidence  as  adduced  in  court  and 
upon  the  law  as  given  to  them  by  the  court. 

And  on  further  giving  the  court  to  be  informed  and  understand 
that  the  statements  contained  in  said  article  are  in  many  respects 
not  true  and  not  justified  by  any  evidence  received  in  the  case. 

And  on  further  giving  the  court  to  be  informed  and  understand 
that  if  in  the  said  comments  upon  the  case  depending  before  the 
court  and  the  jury  the  said  newspaper  was  acting  upon  its  own 
motion,  it  was  guilty  of  a  breach  of  the  license  and  privilege  of  the  press ; 
and  if  acting  from  other  motives  they  should  disclose  to  the  court  at 
whose  suggestion  or  instance  the  said  publication  was  made  in  order 
that  justice  may  be  done,  and  that  there  should  be  no  miscarriage  of 
justice  in  consequence  of  said  publication;  that  by  their  acts  and 
doings  in  the  premises  they  have  been  guilty  of  a  flagrant  breach  of 
the  decorum  of  this  court  and  are  in  contempt  thereof. 

It  is  ordered  that  the  Times  Publishing  Company^  through  its  man- 
ager, Page  M.  Baker ^  and  its  president,  Ashton  Phelps,  do  show  cause 
on  Tuesday,  March  21,  i%93,  at  11  o'clock  a.  m.,  in  open  court,  why 
the  said  manager  and  president  should  not  disclose  to  the  court  the 
party  at  whose  instance  the  said  publication  was  made,  and  from 
whom  the  information  was  received,  and  whether  the  said  publica- 
tion was  paid  for,  and  if  so,  by  whom;  or  in  default  thereof,  why 
they  should  not  stand  committed  for  contempt  of  the  authority  of 
this  court  under  the  statutes  and  laws  of  the  State  of  Louisiana  in 
such  cases  made  and  provided. 

c.  For  Failure  to  Obey.* 

1.  Pailore  to  Pay  Money  to  Receiver.  —  law,  a  portion  of  the  assets  of  the  said 

In   Cartwright's  Case,   114   Mass.  234,  Hide  &"  Leather  Insurance  Company,  it 

the  rule  to  show  cause  why  the  defend-  is  ordered  that  the  said  Cartwright  be 

ant  should   not  be   punished   for  con-  notified,  by  the  service  upon  him  of  an 

tempt   for  failing   to  pay   over  to  his  attested  copy  of  this  order,  to  be  and 

coreceiver  certain   moneys  as  ordered  appear  before  some  one  of  the  justices 

by  the  court  was  in  the  words  following,  of    this  court,   at    the     court-house    in 

to  wit :  Boston,  on   Saturday,  the  twentieth  day 

"  And  now,  it  appearing  to  the  court  of  December  current,  at  nine  o'clock  in 

here,  upon   the    statement   oi  James  C.  the  forenoon,  then  and  there  to  show 

Davis,  one  of  the  receivers  of  the  said  cause,  if  any  he  has,  why   an  attach- 

company,  iha.tJohn  W.  Cartwright,  one  ment  should  not  issue  against  him,  the 

of  the  receivers  of  the  said  company,  saAAJohn  fV.  Cartwright,  as  and  for  a 

has  failed  and  neglected   to  obey  and  contempt  of  this  court,  as  well  for  the 

comply  with    the   order   of   this   court  disobedience  of  the  said  order  as  for  an 

passed  in  said  cause  on  the  thirteenth  unlawful  appropriation  of  the  assets  of 

day  of  December  current,  and   also  that  the    said    Hide    &'   Leather    Insurance 

the  said  Cartwright  has  appropriated  to  Company  to  his  own  use. 
his  own  use,  without   the  direction   of  Charles  Devens,  Jr.,],  S.J.  C." 

this  court,  and  without  the  authority  of 

253  Volume  5. 


6191.  CONTEMPT.  6192. 

(1)  Order  for  Examination  Before  Trial. 

Form  No.  6  i  9  i .' 

New  York  Supreme  Court,  City  and  County  of  New  York. 
Rochester  Lamp  Company,  plaintiff,  j 

against  >  Order  to  Show  Cause. 

John  H.  Brigham,  defendant.       ) 

On  reading  the  annexed  afifidavits  of  Edward  C.  Perkins  and  A.  G. 
Johnson,  and  the  paper  annexed  thereto,  and  on  such  other  affidavits 
as  may  be  served  by  the  attorneys  for  the  plaintiffs  herein  on  the 
defendant,  or  his  attorneys,  on  or  before  the  seventh  day  of  December, 
i896,  let  John  H.  Brigham,  the  defendant  above  named,  show  cause 
at  a  special  term  of  this  court,  to  be  held  at  chambers  thereof,  at  the 
county  court-house,  in  the  city  of  New  York,  on  the  eleventh  day  of 
December,  iS9-5,  at  eleven  o'clock  in  the  forenoon,  or  as  soon  thereafter 
as  counsel  can  be  heard,  why  he  should  not  be  punished  as  for  a  con- 
tempt for  his  misconduct  in  failing  to  obey  the  mandate  of  this  court, 
as  alleged  in  the  said  affidavit  of  Edward  C.  Perkins,  and  why  the 
plaintiff  should  not  have  such  other  and  further  relief  as  may  be  just, 
with  costs  of  this  motion.  Service  of  this  order  on  the  above  named 
defendant,  John  IT.  Brigham,  or  on  Messrs.  Brigham  &=  Baylis,  his 
attorneys,  on  or  before  the  fourth  day  oi  December,  iS95,  shall  be 
sufficient. 

Dated  New  York,  December  3,  iS95. 

George  P.  Andrews,  J.  S.  C. 

(2)  Summons. 

Form  No.  6  i  92. 

(Precedent  in  State  v.  Bourne,  21  Oregon  225.)' 

In  the  circuit  court  of  the  state  of  Oregon  for  the  county  of  Mult- 
nomah. 

The  State  of  Oregon,  plaintiff, 

V. 

Jonathan  Bourne,  Jr.,  defendant. 

And  now  this  day  the  affidavit  of  A.  C.  Emmons,  Esq.,  having  been 
filed  in  this  court,  in  the  matter  entitled,  "In  the  matter  of  letters 
rogatory  from  the  superior  court  at  Suffolk  county,  Massachusetts,  in 
the  case  of  Annie  B.  Everett  v.  John  Stetson,  pending  therein,"  and  it 
being  shown  to  the  court  by  said  affidavit  that  the  above  named 
Jonathan  Bourne,  Jr.,  has  disobeyed  the  process  of  this  court  duly 
served  upon  him  requiring  him  to  appear  and  testify  before  said 
A.  C.  Emmons,  notary  public,  as  commissioner,  under  commission 
from  the  superior  court  of  Suffolk  county,  Massachusetts,  in  said  case 
of  Everett  v.  Stetson  pending  therein,  by  failing  to  appear  before  said 

1,  This  form  is  copied  from  the  rec-  subs.  2,  and  list  of  statutes  cited  supra, 
ords  in   Rochester  Lamp  Co.  v.   Brig-     note  i,  p.  228. 

ham.  I  N.  Y.  App.  Div.  490.    See  Birds.         2.  Oregon. —  Hill's  Anno.  Laws  (1892), 
Rev,  Stat.   N.  Y.  (1896),  p.  796,  §   14,     §  797.     See  supra,  note  i,  p.  228. 

254  Volume  5. 


6193. 


CONTEMPT. 


6193. 


commissioner  at  the  time  and  place  named  in  said  process,  upon 
motion  of  Annie  B.  Everett,  by  W.  M.  Gregory,  her  attorney,  it  is  there- 
fore ordered  that  said  Jonathan  Bourne,  Jr.,  be  required  to  be  and 
appear  before  this  court  at  1:S0  o'clock  p.  m.  of  this  day,  or  if  service 
hereof  be  not  so  soon  made  upon  him,  then  forthwith  upon  service 
hereof,  then  and  there  to  show  cause  why  he  should  not  be  arrested 
to  answer  for  contempt  of  this  court,  in  disobeying  the  lawful  process 
of  this  court  as  above  mentioned  duly  served  upon  him.  It  is  fur- 
ther ordered  that  a  duly  certified  copy  of  this  order  be  forthwith 
served  upon  said  Jonathan  Bourne,  Jr. 
Dated  September  2Jf,  i891. 

E.  D.  Shattuck,  Judge. 

3.  Attachment, 
a.  Order  that  Attachment  Issue.' 


1.  For  Contemptaoas  Publication.  —  In 
In  r^  Millington,  24  Kan.  214,  the  order 
for  attachment  for  contemptuous  pub- 
lication, omitting  the  formal  parts,  was 
as  follows,  to  wit: 

"  Now,  on  this  seventeenth  day  of 
May,  A.  D.  i8<?o,  there  being  reasonable 
grounds  for  believing  that  Daniel  A. 
Millington  and  Edwin  P.  Greer  are  the 
editors,  publishers  and  proprietors  of  a 
weekly  newspaper  called  the  Winjield 
Courier,  published  and  of  general  cir- 
culation in  the  county  of  Cowley;  and 
that  heretofore,  to  wit,  on  the  twelfth 
day  of  May,  inst.,  the  said  Millington 
and  Greer  caused  to  be  published  in 
said  paper  several  articles  of  and  con- 
cerning a  certain  case  then  pending 
and  undetermined  in  this  court  in 
which  the  State  of  Kansas  was  plaintiff 
and  Charles  H.  Payson  was  defendant, 
and  among  other  things  then  and  there 
published  the  following  language, 
viz. :  {Here  were  set  out  three  contemptu- 
ous paragraphs.)  The  court  being  of 
the  opinion  that  the  publications,  such 
as  above  set  forth,  concerning  a  case 
pending  in  court,  are  calculated  to  ob- 
struct and  embarrass  the  administra- 
tion of  justice,  have  a  tendency  to 
prejudice  the  public  concerning  the 
merits  of  the  case,  and  to  weaken  the 
influence  and  authority  of,  and  destroy 


public  confidence  in,  the  tribunal  try-     Cow.  (N.  Y.)  494 


Conditional  Order,  unless  Witness  At- 
tend and  Testify.  —  For  the  form  of  a 
conditional  order  for  an  attachment, 
unless  a  witness  attend  and  testify,  see 
Briggs  V.  Mackellar,  2  Abb.  Pr.  (N.  Y. 
C.  PI.)  63. 

Failure  to  Obey  Mandamus.  —  In  Del- 
gado  V.  Chavez,  5  N.  Mex.  661,  the 
following  order  for  an  attachment  for 
contempt  was  entered,  to  wit: 

"  It  being  shown  to  the  court  by  the 
petition  and  affidavit  of  William  H. 
Nesbitt,  filed  this  igth  day  oi  January, 
i8g/,  in  the  cause  lately  pending  in 
said  district  court,  in  which  Abraham 
Staab,Juan  Garcia  and  William  H.  Nes- 
bitt were  relators,  and  Pedro  Delgado 
was  respondent,  that  the  said  defend- 
ant, Pedro  Delgado,  has  refused,  and 
still  does  refuse,  to  obey  the  peremp- 
tory writ  of  mandamus  issued  out  of 
this  court  in  said  mandamus  proceed- 
ing on  the  i^th  day  ol  January,  \%gi, 
it  is  ordered  by  the  court  that  an  attach- 
ment for  contempt,  returnable  at  five 
o'clock  this  afternoon,  issue  for  the 
arrest  of  said  defendant,  Pedro  Delgado. 
Edtoard  P.  Seeds, 
Associate  Justice,  etc. 

Santa  Fe,  New  Mexico, 
January  iq,  \%gi." 

Against  sheriff  for  failure  to  bring  in 
defendant's  body.     People  v.  Marsh,  2 


mg  the  cause,  and  as  such  are  a  con- 
tempt of  court,  therefore  ordered  that 
an  attachment  issue  forthwith  against 
the  said  Millington  and  Greer,  and  that 
they  be  brought  before  the  bar  of  this 
court,  and  be  required  to  answer  in 
writing  and  under  oath  the  matters 
herein  set  forth  and  charged." 


For  violation  of  injunction  held  void 
because  the  court  issuing  the  restrain- 
ing order  had  no  jurisdiction  so  to  do. 
In  re  Ayers,  123  U.  S.  445. 

See  also  forms  in  Gorham  v.  Luckett, 
6  B.  Mon.  (Ky.)  639;  Young  v.  Cannon, 
2  Utah  576. 


256 


Volume  5. 


6193.  CONTEMPT.  6194. 

Form  No.  6193.' 
At  a  Special  Term  of  the  Supreme  Court,  held  at  the  Kings  County 
Court-house  in  the  City  of  Brooklyn  on  the  third  day  oi  January,  iS82, 
Present:  Hon.  Jasper  V.  Gilbert,  Justice. 
John  JD.  Negus 

The  City  of  Brookfyiyfe  Brooklyn  Elevated  \  ^'^^"  ^ °"  Attachment. 
Railway  Company  and  others. 

On  reading  and  filing  the  affidavits  of  David  Barnett  and  Edward 
J.  Bergen,  and  the  injunction  order  therein  referred  to  and  annexed 
thereto,  showing  the  violation  of  the  injunction  heretofore  made  in 
this  action  by  the  members  of  the  common  council  of  said  city  of 
Brooklyn  and  aldermen  of  said  city,  to  wit,  William  Dwyer,  John 
McCarty,  James  Katie,  James  Weir,  Jr.,  Daniel  O'Connell,  Philip 
Casey,  James  Donovan,  William  J.  LePine,  Felix  W.  Doyle,  Williatn 
Allison,  Philip  Schmitt,  William  H.  Waters,  Thomas  Bowers,  Richard 
S.  Roberts,  Benjamin  B.  Seaman,  Patrick  J.  Kelly  and  Thomas  R. 
Armitage,  which  injunction  was  made  herein  on  the  twenty-sixth  day 
of  December  last  past,  and  which  injunction  was  duly  served  on  the 
persons  above  named ;  now,  on  motion  of  Herbert  G.  Hull,  attorney 
for  the  plaintiff,  it  is  hereby  ordered  and  directed,  that  an  attachment 
as  for  a  contempt  for  disobedience  of  the  said  injunction  order,  be 
issued  to  the  sheriff  of  the  county  of  Kings  against  each  and  every 
of  the  following  named  members  of  the  common  council  of  the  city 
of  Brooklyn,  and  aldermen  of  said  city,  to  wit,  William  Dwyer,  John 
McCarty,  James  Kane,  James  Weir,  Jr. ,  Daniel  O'Connell,  Philip  Casey, 
James  Dotiovan,  William  J.  Le  Pine,  Felix  W.  Doyle,  Williatn  Allison, 
Philip  Schmitt,  William  H.  Waters,  Thomas  Bovvers,  Richard  S.  Roberts, 
Benjamin  B.  Seaman,  Patrick  J.  Kelly  and  Thotnas  R.  Armitage;  and 
that  the  said  attachment  be  returnable  at  a  special  term  of  this  court 
to  be  held  at  the  court-house  in  the  city  of  Brooklyn  on  the  third  day 
oi  Ja?tuary,  iS82,  at  ten  o'clock  in  the  forenoon  of  that  day. 

And  it  is  further  ordered,  that  each  and  every  of  the  said  persons, 
to  wit,  William  Dwyer,  John  McCarty,  James  Kane,  James  Weir,  Jr. , 
Daniel  O'Connell,  Philip  Casey,  James  Donovan,  William  J.  Le  Pine, 
Felix  W.  Doyle,  William  Allison,  Philip  Schmitt,  William  H.  Waters, 
Thomas  Bowers,  Richard  S.  Roberts,  Benjamin  B.  Seaman,  Patrick  J. 
Kelly  and  Thomas  R.  Armitage,  be  held  to  bail  on  said  attachment 
in  the  sum  of  two  thousand  dollars  each. 
Enter:  /.  W.  G. 

b.  Attachment  Writ. 

(1)  In  General. 

Form  No.  6194. 

The  State  of  Delaware. 
Kent  County,  ss. 
To  the  Sheriff  of  Kent  County,  Greeting: 

(seal)     We  command  you   that  you  attach  Richard  Roe,  late  of 

1.  This  form  is  copied  from  the  record  in  People  v.  Dwyer,  90  N.  Y.  402.     See 
Birds.  Rev.  Stat.  N.  Y.  (1896),  p.  631,  §  5,  and  statutes  cited  supra,  note  i,  p.  228. 

256  Volume  5. 


6196.  CONTEMPT.  6196. 

Kent  county,  if  he  shall  be  found  in  your  bailiwick,  so  that  you  have 
his  body  before  our  judges,  at  Dover,  at  our  Superior  Court  forthwith, 
to  answer  unto  our  judges  of  a  certain  contempt  by  him  committed, 
and  further  to  abide  and  perform  such  order  as  our  said  court 
shall  then  and  there  consider  of  him  in  this  behalf,  etc.,  and  therefore 
fail  not.  And  have  you  then  there  this  writ  with  your  doings 
thereon  indorsed,  etc. 

Witness,  the  Honorable  Edward  W.  Gilpin,  Esquire,  chief  justice 
of  our  said  court,  at  Dover,  the  twenty-fourth  day  of  February,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight. 

John  Hancock,  Prothonotary. 

Form  No.  6195. 

(82  Me.  606.V 

(seal)  State  of  Maine. 

To  the  Sheriffs  of  our  Counties  and  their  Deputies: 

We  command  you  to  attach  the  body  of  John  Doe,  of  Paris,  in  our 
county  of  Oxford,  so  that  you  have  him  before  our  Supreme  Judicial 
Court,  at  Paris,  within  and  for  our  county  of  Oxford,  on  t\\Q  fourth 
Tuesday  of  April  next,  to  answer  for  an  alleged  contempt  in  not  (^Here 
insert  the  cause),  and  you  may  take  a  [bond  with  sufficient  sureties  to 
Richard  Roe,  the  party  injured,  in  the  sum  of  one  thousand  dollars, 
conditioned  that  he  then  and  there  appear  and  abide  the  order  of 
court.]2  Hereof  fail  not  and  make  due  return  thereof  and  of  your 
proceedings,  at  the  time  and  place  aforesaid. 

Witness,  James  Smith,  justice  of  our  said  court,  the  eighteenth  day 
oi  Marchy  in  the  year  of  our  Lord  1W6. 

George  Jones,  Clerk. 

Form  No.  6196. 

(Precedent  in  In  re  Wood,  82  Mich.  76.)* 

State  of  Michigan,  ) 
County  of  Wayne.    \ 

(seal)     In  the  Circuit  Court  for  said  County. 
To  the  Sheriff  or  any  Deputy  Sheriff  of  Wayne  County,  Greeting: 

Whereas,  it  has  been  made  to  appear  to  said  circuit  court,  by  return 
of  the  officer  duly  made,  that  ^.  T.  Woodwas  duly  served  with  an 
order  of  said  court  citing  him  to  appear  before  said  court  on  Wednes- 
day, the  4^h  day  of  June,  iS90,  at  9:30  o'clock  a.  m.,  to  show  cause 
why  he  should  not  be  punished  for  contempt  of  court,  and  the  hear- 
ing of  said  matter  being  continued  until  2  P.  m.  of  said  June  4,  at 
which  time  said  respondent  was  ordered  to  appear  in  court,  and  E.  T. 
Wood  has  made  default  in  obeying  the  command  of  said  order: 

Now,  therefore,  you,  and  each  of  you,  are  hereby  commanded,  in 
the  name  of  the  people  of  the  State  of  Michigan,  forthwith  to  appre- 

1.  Form  is  also  set  out  in  37  Me.  595.  charged  on  habeas  corpus,  as  the  con- 

2.  Where  the  party  is  not  bailable,  tempt  was  not  committed  within  the 
that  part  of  the  writ  enclosed  by  [  ]  view  of  the  court  and  the  proceedings 
should  be  omitted.  were  not  commenced  by  affidavit.     The 

3.  In  this  case  the  petitioner  was  dis-  form  of  the  writ,  however,  is  good. 

5  E.  of  F.  P.  —  17.  257  Volume  5. 


6197.  CON  TEMP  T.  6199. 

hend  said  E.  T.  Wood,  and  bring  him  before  the  said  court  to  be  dealt 
with  according  to  law;  and  you  are  further  commanded  to  detain,  in 
the  manner  prescribed  by  law,  the  said  E.  T.  Wood,  until  he  shall  be 
discharged  by  said  circuit  court,  and  of  this  writ  make  due  return. 

Witness,  the  Honorable  H.  JV.  Brevoort,   Presiding  Judge,  on  the 
Jjih  day  ol  June,  a.  d.  \Z90. 

Wm.  P.  Lane, 
Clerk  of  the  Circuit  Court  for  the  County  of  Wayne, 
By  Wm.  May,  Dp.  Clk. 


State  of  Minnesota,  \ 
County  of  Ramsey.  \ 


"WoTTO.  No.  6197. 

(Minn.  Stat.  (1894),  §  5092.) 

SS. 

The  State  of  Minnesota. 


To  the  sheriff  or  constable  of  said  county: 

You  are  hereby  commanded  to  apprehend  John  Doe,  and  bring  him 
before  Abraham  Kent,  one  of  the  justices  of  the  peace  of  said  county, 
at  his  office  in  said  county,  to  show  cause  why  he,  the  said  John  Doe, 
should  not  be  convicted  of  a  criminal  contempt  alleged  to  have  been 
committed  on  the  eighteenth  day  of  January,  a.  d.  \^d8,  before  the 
said  justice,  while  engaged  as  a  justice  of  the  peace  in  judicial 
proceedings. 

Dated  this  twentieth  day  of  January,  a.  d.  \W8. 

Abraham  Kent,  justice  of  the  peace. 

Form  No.  6198. 
(Precedent  in  Matter  of  Sloan,  5  N.  Mex.  637.) 

The  Territory  of  New  Mexico  to  the  sheriff  of  Santa  Fe  county, 
greeting: 

You  are  hereby  commanded  to  arrest  and  take  the  body  of  John 
H.  Sloan,  and  him  safely  keep,  so  that  you  have  his  body  before  the 
district  court  within  and  for  the  county  of  Santa  Fe,  sitting  at 
chambers  at  Xh^  federal  building  in  said  county,  on  Monday,  January 
19,  i891,  at  nine  o'clock  A.  m.,  then  and  there  to  answer  for  a  charge 
of  contempt. 

Witness,  the  Honorable  Edward  P.  Seeds,  associate  justice  of  the 
supreme  court  of  the  territory  of  New  Mexico,  and  judge  of  the  First 
judicial  district  court  thereof,  and  the  seal  of  said  district  court,  this 
17th  day  of  January,  iS91. 

A.  E.   Walker,  Clerk,     (seal) 

Form  No.  6199. 

(Hill's  Anno.  Stat.  Wash.  (1891),  §  1605.)' 

The  State  of  Washington,  \ 
King  County.  [ 

To  the  Sheriff  or  any  constable  of  said  County: 

In  the  name  of  the  state  of  Washington,  you  are  hereby  commanded 
to  apprehend  John  Doe,  and  bring  him  before  Abraham  Kent,  one  of 

1.  The  same  form  is  set  out  in  Sanb.  &  B.  Anno.  Stat.  Wis.  (1889),  §  3578. 

258  Volume  5. 


\ 


I 


6200.  CONTEMPT.  6201. 

the  justices  of  the  peace  of  said  county,  at  his  office  in  said  county, 
to  show  cause  why  he  should  not  be  convicted  of  a  contempt  alleged 
to  have  been  committed  on  the  sixth  day  of  January,  a.  d.  \W8, 
before  the  said  justice,  while  engaged  as  a  justice  of  the  peace 
in  a  judicial  proceeding. 

Dated  this  tenth  day  of  January,  a.  d.  i8P<P. 

Abraham  Kent,  Justice. of  the  Peace. 

(2)  For  Contempt  before  Arbitrators. 

Form  No.  6200. 

(Pepp.  &  L.  Dig.  Pa.  (1895),  p.  180,  §  53.) 

Cumberland  County,  ss. 

The  Commonwealth  of  Pennsylvania. 

To  the  constable  of  Carlisle.  We  command  you,  that  you  take 
Richard  Roe,  late  of  your  county,  aforesaid,  and  have  him  forthwith 
before  Samuel  Short,  William  West  and  Leonard  A.  Ford,  arbitrators 
(or  referees)  appointed  to  hear  and  determine  all  matters  in  variance 
in  a  certain  action,  wherein  John  Doe  is  plaintiff  and  Joseph  Hunt 
defendant,  at  the  house  of  Samuel  Short,  in  Carlisle,  then  and  there 
to  answer  to  such  matters  and  things  as  shall  be  objected  against 
him,  and  not  depart  without  leave. 

Witness  my  hand,  this  twenty-fifth  day  of  February,  a.  d.  \W8. 

Samuel  Short. 

William  West.       \  Arbitrators. 
Leonard  A.  Ford. 

(3)  For  Contemptuous  Affidavit  for  Change  of  Venue. 

Form  No.  6201. 

(Precedent  in  Hughes  v.  People,  5  Colo.  437.) 

State  of  Colorado,       ) 
Clear  Creek  County.  )      * 

The  People  of  the  State  of  Colorado  to  the  Sheriff  of  Clear  Creek 
County,  Greeting: 
We  command  you  to  take  William  T.  Hughes,  and  him  safely  keep, 
so  that  you  have  his  body  forthwith  before  our  county  court  of  Clear 
Creek  County  at  a  term  now  being  held  at  the  court  in  Georgetown 
for  probate  matters,  to  answer  us  for  and  concerning  a  contempt  of 
our  said  court,  in  this,  to  wit:  on  the  2Jfih  day  oi  June,  i879,  in  the 
district  court  in  and  for  said  county,  at  the  regular  June  term  thereof, 
A.  D.  iS79,  in  a  case  then  and  therein  pending,  wherein  Daniel  Ernst, 
administrator  of  the  estate  of  Jenny  Akin,  against  William  T.  Hughes, 
William  J.  Hurd  and  Frank  X.  Aicher;  after  the  trial  of  said  case  by 
said  district  court,  the  following  order  was  therein  entered  by  said 
district  court,  to  wit:  (^Here  was  set  out  a  copy  of  the  order. y- 

1.  The  order  was  as  follows  :  John  A.  Coulter,  and  this   cause  came 

"  Now,  at  this  day  comes  the  plain-     on  to  be  heard,  and  is  submitted  to  the 

tiff,  by  his  attorney,  G.   G.   JV/iiie,  and     court  without  a  jury,  and  after  hearing 

the  said  defendants,  by  their  attorney,     all  the  testimony,  and  the  court  being 

259  Volume  5. 


6201.  CONTEMPT.  6201. 

That  afterwards,  to  wit,  on  the  15th  day  oi  July,  i879,  a  copy  of 
the  said  order  was  filed  in  the  said  county  court. 

That  afterwards,  on  the  5th  day  oi  August,  a.  d.  i879,  by  order  of 
the  attorney  of  the  estate  of  said  Jenny  Akin,  a  citation,  under  the 
hand  and  seal  of  said  county  court,  was  duly  issued,  requiring  the 
said  defendants,  Wm.  T.  Hughes,  Wm.  J.  Hurd,  Frank  X.  Aicher  and 
Charles  H.  Martin,  to  be  and  appear  before  said  county  court  on  the 
6th  day  oi  August,  iS79,  then  and  there  to  show  cause,  if  any  they 
may  have,  why  they,  and  each  of  them,  should  not  comply  with  the 
judgment  and  order  of  said  district  court;  and  that  said  William  T. 
Hughes  show  what  amount,  if  any,  he  has  paid  out  on  account  of  said 
estate.  Which  said  citation  was  duly  served  upon  said  Wm.  T. 
Hughes,  by  the  sheriff  of  Clear  Creek  county,  on  the  day  of  the  date 
hereof;  and  on  said  Frank  X.  Aicher,  on  the  6th  day  oi  August,  iS79, 
and  on  said  last  day  duly  returned  in  court. 

That  upon  last  said  date  the  said  Wm.  T.  Hughes  failed  to  appear 
in  said  county  court  in  person,  but  did  appear  hyJohnA.  Coulter,  Esq., 
his  attorney;  and  upon  information  received  by  this  court  from  the 
said  John  A.  Coulter,  as  such  attorney,  the  court,  of  its  own  motion, 
continued  the  time  for  the  appearance  of  the  said  Wm.  T.  Hughes  to 
answer  concerning  said  citation  until  Thursday,  the  7th  day  of  August, 
A.  D.  i87P,  at  2  o'clock  P.  m.  of  said  day.  And  on  the  said  7th  day  of 
August,  A.  D.  i87P,  at  2  o'clock  P.  m.,  and  for  more  than  one  hour 
thereafter,  the  said  Wm.  T.  Hughes  still  failed  to  personally  appear 
before  said  court  in  obedience  to  said  citation,  and  the  order  extend- 
ing the  time  of  appearance  of  said  Hughes  in  respect  thereto;  but  the 
said  John  A.  Coulter,  attorney,  did  appear  for  the  said  William  T. 
Hughes,  and  presented  to  the  court  to  be  filed,  the  pretended  answer 
of  the  said  William  T.  Hughes,  in  words  and  figures  following:  {Ilere 
was  set  out  the  answer  in  full ^ 

sufficiently  advised  in  the  matter,  it  is  of  them,  have  had,  or  may  have,  in 
ordered  by  the  court  that  the  defend-  their  possession  or  under  their  control, 
ants,  W.  T,  Hughes,  Wm .  J .  Hurd  a.nA  belonging  to  said  estate.  It  is  further 
/"ra«/^  X  ^tV^^r,  deliver  to  the  said  ad-  ordered  that  the  said  William  T. 
ministrator  all  and  singular  the  goods  Hughes  pay  into  said  county  court  the 
and  chattels  belonging  to  the  said  es-  sum  of  nineteen  dollars,  received  by 
tate,  viz:  one  bedstead,  one  bureau,  him  from  the  sale  of  personal  property 
one  commode,  one  rocking  chair,  one  belonging  to  said  estate,  and  had  and 
heating  stove,  one  dining  table,  one  received  by  him  from  said  estate,  ex- 
meat  safe,  one  wash  bowl,  one  bed  cept  as  to  such  amount  as  he  may  have 
spring,  one  mattress,  one  bolster,  two  paid  out  on  account  of  said  estate,  and 
pillows,  two  bed  spreads,  three  com-  for  which  he  will  account  to  said  r^ww/y 
forts,  and  all  other  articles  of  personal  court,  and  that  the  said  defendants  pay 
property  that  they  and  each  of  them  the  costs  of  this  appeal  and  all  other 
have  in  their  possession,  or  under  their  proceedings  had  herein;  and  that  the 
control;  and  it  appearing  that  Charles  order  be  certified  by  the  clerk  of  this 
H.  Martin  has  in  his  possession  certain  court  to  the  said  county  court,  and  the 
property  belonging  to  said  estate:  one  same  be  there  enforced  as  the  law 
trunk  and  contents,  one  wash  bowl  and  directs." 

other  articles,  it  is  ordered  that  he  de-        1.  The  answer  was  as  follows: 
liver  the  same  to  said   administrator,         "The  defendant,  in  response  to  the 

and  that  the  said  defendants  and  the  citation   issued   by   the    judge   of    the 

said  Martin  are  hereby  required  to  ac-  county  court,  within  and  for  the  county 

count  to  the  county  court  of  this  county  of  Clear  Creek,  Colorado,  on  the  jtk  day 

for  all  personal  property  they,  or  any  of  August,  A.  D.  1879: 

260  Volume  5. 


6201. 


CONTEMPT. 


6201. 


That  during  the  same  session  of  said  court,. the  said  Hughes  still 
being  absent  therefrom,  the  said  John  A.  Coulter^  his  attorney,  pre- 


I. 

That  on  the  26th  day  oi  June,  1879, 
an  order  was  made  and  entered  of  rec- 
ord in  the  district  court,  within  and  for 
the  county  of  Clear  Creek,  Colorado, 
against  William  T.  Hughes,  William  J. 
Hurd,  Frank  X.  Aicher  and  Charles  H. 
Martin,  and  in  favor  of  Daniel  Ernst, 
administrator  of  the  estate  of  Jenny 
Akin,  deceased,  ordering  these  defend- 
ants to  turn  over  certain  goods  and  to 
pay  over  certain  moneys  in  said  order 
specified;  and  it  was  further  ordered  by 
the  district  court,  that  these  defendants 
have  thirty  days  to  file  their  bill  of  ex- 
ceptions in  said  cause. 

That  the  defendants,  to  wit:  on  the 
^th  day  oljune,  A.  D.  1879,  the  said 
Daniel  Ernst,  administrator  of  the  es- 
tate of  Jenny  Akin,  deceased,  com- 
promised, released  and  discharged,  and 
received  in  accord  and  satisfaction  the 
goods  in  the  possession  of  William  J. 
Hurd,  one  of  the  above  named  defend- 
ants, which  said  compromise,  release 
and  discharge  is  in  words  and  figures 
as  follows,  to  wit: 
'  Daniel  Ernst,  admin.,  ) 

V.  \  No.  2,138. 

W.  T.  Hughes  et  al.     \ 

Plaintiff  and  defendants  hereby  com- 
promise all  matters  in  dispute  in  this 
cause,  and  defendants  agree  to  turn 
over  to  plaintiff  all  goods  of  the  estate 
oi  Jenny  Akin,  now  in  the  possession 
of  William  J.  Hurd,  and  law  the  same 
no  farther,  for  which  plaintiff  agrees  to 
absolve  them  from  all  existing  and 
further  liabilities  of  whatsoever  kind 
and  nature,  and  the  defendants  be  fully 
acquitted  of  the  same. 

June  JO,  1879. 

Daniel  Ernst. 
W.   T.  Hughes, 
For  Defendants.' 

That  defendants  did,  on  the  joth  day 
oi  June,  liyg,  fully  perform  their  agree- 
ments and  undertakings,  in  accordance 
with  the  above  agreement,  and  did  then 
and  there  deliver  the  goods  mentioned 
in  the  said  release  and  discharge  to  the 
said  Daniel  Ernst,  administrator  afore- 
said, and  that  said  release  and  dis- 
charge was  made  a  part  and  parcel  of 
the  records  of  the  district  court  of  Clear 
Creek  County,  Colorado. 

That  the  defendants,  relying  and  be- 
lieving that  said  release  and  discharge, 
after  their  compliance  with  the  same, 


would  wholly  absolve  them  from  any 
further  or  other  liability  in  the  prem- 
ises, and  that  the  same  were  made  in 
good  faith,  allowed  the  time  for  filing 
bill  of  exceptions  and'  making  up  the 
record  in  the  said  district  court  within 
and  for  the  county  of  Clear  Creek,  Colo- 
rado, to  pass  without  filing  the  same. 

These  defendants  further  state  that 
said  Daniel  Ernst,  administrator  afore- 
said, had  full  notice  of  the  above 
release  and  discharge,  and  the  per- 
formance thereof  on  the  part  of  these 
defendants,  and  did  duly  accept  the 
terms  and  conditions  of  the  same. 

And  these  defendants  further  state, 
that  the  judge  of  the  county  court  within 
and  for  the  county  of  Clear  Creek,  Colo- 
rado,  had  notice  of  the  release  and  dis- 
charge as  aforesaid,  at  or  about  the 
time  that  the  same  was  executed  by  the 
said  Daniel  Ernst,  administrator  as 
aforesaid,  and  further  charge,  upon  in- 
formation and  belief,  that  G.  G.  White, 
attorney  of  the  estate  of  Jenny  Akin, 
had  notice  of  the  release  and  discharge 
of  these  defendants,  on  or  about  the 
time  that  said  Daniel  Ernst,  admin- 
istrator as  aforesaid,  executed  and 
performed  the  conditions  of  said  agree- 
ment; and  further  charged,  upon  in- 
formation and  belief,  that  the  said 
county  judge  and  G.  G.  White,  the  at- 
torney for  said  estate,  and  Daniel 
Ernst,  administrator  aforesaid,  purpose 
and  intentionally  acquiesced  in  the  re- 
lease and  discharge  given  by  Daniel 
Ernst,  administrator  aforesaid,  until 
the  time  for  perfecting  the  record  of 
the  case  in  the  district  court  had  ex- 
pired, and  thus  gained  an  unjust  and 
undue  advantage  by  these  further  pro- 
ceedings in  said  cause. 

John  A.  Coulter, 
Attorney  for  Defendants. 
State  of  Colorado,        \ 
Clear  Creek  County.  \  '   ' 

W.  T.  Hughes,  oi  lawful  age,  being 
first  duly  sworn,  on  oath  states  that  he 
has  read  the  foregoing  answer  and 
knows  the  contents  of  the  same,  and 
that  the  same  are  true  of  his  own 
knowledge,  excepting  those  matters 
stated  on  information  and  belief,  and 
as  to  those  matters,  he  believes  the 
same  to  be  true.  W.  T.  Hughes. 

Subscribed  and  sworn  to  before  me 
this  August  6,  1879. 

Arthur  D.  Bullis,  Notary  Public." 


261 


Volume  5. 


6202. 


CONTEMPT. 


6202. 


sented  to  the  court  the  affidavit  of  said  W.  T.  Hughes,  stating  causes 
for  a  change  of  venue  of  said  case,  which  affidavit  of  said  William  T. 
Hughes  \s  in  words  and  figures  following,  to  wit:  {Here  was  set  out 
the  affidavit  in  full. y- 

Whereupon,  upon  information  imparted  to  said  court,  the  time  for 
appearance  of  said  Hughes,  under  the  said  citation,  was  extended  to 
August  11,  iS79,  at  10  o'clock  A.  m. 

Such  contempt  consisting  in  — 

First.  The  failure  of  said  Hughes  to  personally  appear  as  required 
by  said  citation. 

Second.  The  allegations  in  said  answer,  sworn  to  by  said  Hughes, 
contained  in  the  eight  last  lines  of  said  answer,  are  disrespectful  to 
the  judge  of  said  county  court,  untrue,  scandalous  and  impertinent. 

Third.  The  affidavit  of  said  Hughes,  stating  causes  for  a  change  of 
venue  of  said  case,  contained  grossly  scandalous,  untrue  and  imperti- 
nent allegations  and  outrageously  insulting  imputations  against  the 
said  county  court  and  the  judge  thereof. 

And  have  you  then  and  there  this  writ,  with  an  indorsement  show- 
ing how  you  have  executed  the  same. 

Witness,  J.  C.  McCoy,  Judge  of  said  court,  and  the  seal  thereof,  at 
Georgetown,  this  12th  day  oi  August,  a.  d.  i87P. 

(seal)  y.  C.  McCoy,  County  Judge. 

(4)  For  Contemptuous  Publication. ^ 


1.  The  affidavit  was  as  follows: 
"  State  of  Colorado,    )  In  County 

Clear  Creek  County.  )      '       Court. 
Daniel  Ernst,  administrator,  etc., 

V. 

William  T.    Hughes,   William  J. 

Hurd,   Charles  H.  Martin  and 

Frank  X.  Aicher. 

William  T.  Hughes,  being  duly  sworn 
according  to  law,  on  oath  states  that  he 
is  one  of  the  above  named  defendants 
in  the  above  entitled  cause.  That  he 
fears  that  he  cannot  have  a  fair  and 
impartial  hearing  or  trial  hciorc  John  C. 
McCoy,  county  judge  within  and  for  the 
county  of  Clear  Creek,  Colorado,  where 
the  above  entitled  action  is  pending, 
because  — 

As  affiant  is  informed  and  believes, 
and  therefore  charges  the  fact  to  be, 
that  the  said  John  C.  McCoy,  county 
judge  of  said  county,  and  before  whom 
said  action  is  now  pending,  has  pre- 
judged the  merits  of  this  action  against 
these  defendants;  and  further,  as  affiant 
is  informed,  and  verily  believes,  that 
the  sa.\AJohn  C.  McCoy  is  interested  in 
the  result  of  these  proceedings;  and 
further,  that  the  sa.idJohn   C.  McCoy, 


county  judge  as  aforesaid,  is  so  preju- 
diced against  this  affiant,  as  to  inca- 
pacitate him  from  doing  this  affiant 
justice  in  any  cause  in  which  this  affiant 
is  a  party  or  has  any  interest  what- 
ever. 

That  this  bitter  and  disqualifying 
enmity  has  existed  over  a  year  last 
past,  and  was  greatly  increased  after 
the  sitting  of  the  grand  jury  at  ih&Juue 
term  of  the  district  court,  before  whom, 
as  is  said,  certain  charges  were  pre- 
ferred against  y^/zw  C.  McCoy,  accusing 
him  of  taking  and  securing  a  bribe 
from  one  G.  G.  White,  in  a  cause  pend- 
ing in  said  county  court,  the  preferring 
of  which  charges  the  said  John  C.  Mc- 
Coy charges  affiant  of  being  chief  and 
instrumental  in  bringing  about. 

For  these  and  other  reasons,  affiant 
says  that  a  fair  and  impartial  trial  can- 
not be  had  in  said  cause,  nor  of  any 
issue  arising  out  of  the  same. 

W.   T.  Hughes. 

Subscribed  and  sworn  to  before  me, 
this  August  6,  1879. 

/.  P.  Post,  Justice  of  the  Peace." 

2.  See  also  a  form  in  Neel  v.  State,  9 
Ark.  259. 
t2  Volume  5. 


6202.  CONTEMPT.  6204. 

Form  No.  6202. 

(Precedent  in  People  v.  Wilson.  64  III:  236.) 

State  of  Illinois,  \    Northern  Grand  Division. 

In  the  Supreme  Court.    [    September  Term,  a.  d.  i87^. 
The  People  of 'the  State  of  Illinois,  to  the  Sheriff  of  La  Salle  County — 
Greeting: 

Whereas,  it  has  been  made  to  appear  that  Charles  L.  Wilson  and 
Andrew  Shuman  have  printed  and  pubHshed  an  article,  which  has  been 
adjudged  by  the  said  court,  now  in  session  at  Ottawa,  in  the  afore- 
said county  and  State,  to  have  been  printed  and  published  in  con- 
tempt of  said  court  while  so  in  session  as  aforesaid. 

We,  therefore,  command  you,  that  you  attach  the  said  Charles  L. 
Wilson  and  Andrew  Shuman,  so  as  to  have  their  bodies  forthwith 
before  our  said  supreme  court  at  Ottawa,  in  the  county  aforesaid,  to 
answer  the  said  court  of  the  said  contempt,  by  them  lately  committed 
against  it,  as  it  is  said,  and  further  to  do  and  receive  what  our  said 
court  shall  in  that  behalf  consider.  Hereof  fail  not,  and  have  you 
then  and  there  this  writ. 

Witness,  Charles  B.  Lawrence,  Chief  Justice  of  said  Court,  and  the 
seal  thereof,  at  Ottawa,  this  6th  day  of  November  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-two. 

(seal)  W.  M.  Taylor,  Clerk  of  the  Supreme  Court. 

Form  No.  6203. 

(Precedent  in  State  v.  Frew,  24  W.  Va.  491.) 

State  of  West  Virginia. 

In  the  Supreme  Court  of  Appeals.  June  Term,  \^J^. 

The  State  of  West  Virginia  to  the  Sheriff  of  Ohio  county,  greeting: 

Whereas  it  has  been  made  to  appear,  that  John  Frew  and  C.  B. 
Hart  have  printed  and  published  an  article,  which  has  been  adjudged 
by  the  said  court,  now  in  session  at  Wheeling,  in  the  aforesaid  county 
and  State,  to  have  been  printed  and  published  in  contempt  of  said 
court  while  so  in  session,  as  aforesaid.  We  therefore  command  you 
that  you  attach  the  said  John  Frew  and  C.  B.  Hart,  so  as  to  have 
their  bodies  forthwith  before  our  said  Supreme  Court  of  Appeals  here 
now  in  session  at  Wheeling  in  the  county  aforesaid,  to  answer  the 
said  Court  of  the  said  contempt,  by  them  lately  committed  against 
it,  as  it  is  said,  and  further  to  do  and  receive  what  our  said  Court 
shall  in  that  behalf  consider.  Hereof  fail  not  and  have  you  then  and 
there  this  writ. 

Witness  the  judges  of  said  Court,  and  the  seal  thereof,  this  Tth  day 
oi  July,  \^1^. 

O.  S.  Long, 

(seal)  Clerk  Supreme  Court  of  Appeals. 

(5)  For  Failure  to  Obey.i 

1.  Failure  to  Obey  Order.  —  In  Cono-  David  Dudley  Field,  Esq.,  was,  omit- 
ver's  Case,  5  Abb.  Pr.  (N.  Y.  Supreme  ting  the  signature  of  the  judge,  in  the 
Ct.)  194,  note,  the  warrant  drawn  by     words  following,  to  wit: 

263  Volume  5. 


6204. 


CONTEMPT. 


6204. 


id)  Injunction}- 

Form  No.  6204.^ 

The  People  of  the  State  of  Ne7v  York,  to  the  Sheriff  of  Kings  County, 
Greeting: 
We  command  you  that  you  attach  William  Dwyer,  John  McCarty, 
James  Kane,  James  Weir,  Jr.,  Daniel  O'Connell,  Philip  Casey,  James 
Donovan,  William  J.  LePine,  Felix  W.  Doyle,  William  Allison,  Philip 
Schmitt,  William  H.  Waters,  Thomas  Bowers,  Richard  S.  Roberts,  Ben- 
jamin B.  Seaman,  Patrick  J.  Kelly  and  Thomas  R.  Armitage,  and  each 
and  every  of  them,  so  as  to  have  their  and  each  and  every  their 
several  bodies  before  our  Supreme  Court,  at  a  special  term  thereof  to  be 
held  at  the  court-house  in  the  city  of  Brooklyn  on  the  third  day  of 


"  The  People  of  the  State  of  New  York 
to  the  Sheriff  of  the  City  and  County 
of  New  York : 

Whereas,  at  the  City  Hall  of  the  city 
of  A^ew  York,  on  the  i8th  day  oijune, 
i8f7,  complaint  was  made  to  the  un- 
dersigned, one  of  the  justices  of  the 
Supreme  Court  of  the  State  of  Ne-.v 
York,  by  Daniel  D.  Conover,  setting 
forth,  among  other  things,  t\\a.\.  Joseph 
S.  Taylor,  who  was,  in  November,  iSfj, 
elected  to  the  office  of  street  commis- 
sioner of  the  city  of  Ne7u  York,  to 
serve  for  three  years  from  January, 
1856,  went  into  his  office  in  said  ya«M- 
ary,  and  continued  in  office  until  the 
gth  day  of  June,  1857,  when  he  died; 
that  the  said  Conover  was,  on  the  12th 
day  of  saidywwif,  duly  appointed  and 
commissioned  to  fill  the  vacancy  in 
said  office  occasioned  by  the  death  of 
the  said  Taylor,  and  had  duly  qualified 
himself,  and  was  then  the  successor  to 
said  office;  that  books,  maps,  papers 
and  documents  belonging  and  apper- 
taining to  the  said  office  had  come  to 
the  hands  of  Charles  Devlin;  that  the 
said  Conover  had  demanded  the  said 
books,  maps,  papers  and  documents 
from  the  said  Charles  Devlin,  and  that 
the  said  Devlin  had  withheld  them, 
and  refused  to  deliver  them  to  the 
said  Conover,  and  asking  that  the  said 
Devlin  might  be  ordered  to  show  cause 
before  the  undersigned  why  he  should 
not  be  compelled  to  deliver  the  said 
books,  maps,  papers  and  documents 
to  the  said  Conover.  And  whereas,  be- 
ing satisfied  by  the  oath  of  the  said  Con- 
over that  the  said  books,  maps,  papers 
and  documents  were  withheld,  the  un- 
dersigned granted  an  order  directing 
the  said  Devlin  to  show  cause  before 
the  undersigned,  on  the  2jd  day  of 
S2l\A  June,  at  the  chambers  of  the  jus- 


tices of  said  court,  in  the  City  Hall  ol 
the  city  of  New  York,  why  he  should 
not  be  thus  compelled;  and  whereas, 
at  the  time  and  place  so  appointed  the 
said  Conover  and  the  said  Devlin  ap- 
peared before  the  undersigned,  and  due 
proof  having  been  made  of  the  service 
of  the  said  order,  the  undersigned  pro- 
ceeded to  inquire  into  the  circum- 
stances, which  inquiry  was  continued 
before  the  undersigned  from  day  to 
day  until  this  day,  the  matter  having 
been  regularly  thus  adjourned,  and  the 
said  Devlin,  not  having  made  oath  that 
he  has  truly  delivered  to  the  said  Cono- 
7Jer  the  said  books,  maps,  papers  and 
documents,  and  it  appearing  to  the  un- 
dersigned that  the  said  books,  maps, 
papers  and  documents  are  still  with- 
held, and  that  the  said  Devlin  omits 
and  refuses  to  deliver  up  the  same, 
— these  presents  are  therefore  to  com- 
mand you,  the  sheriff  of  the  city  and 
county  of  New  York,  and  you  are 
hereby  commanded,  to  take  the  body 
of  the  said  Charles  Devlin,  and  commit 
him  to  the  jail  of  the  city  and  county  of 
New  York,  there  to  remain  until  he 
shall  deliver  such  books,  maps,  papers 
and  documents,  or  be  otherwise  dis- 
charged according  to  law. 

In  witness  whereof,  I  have  hereto 
set  my  hand  and  seal,  at  the  City  Hall 
of  the  city  of  New  York,  this  ninth  day 
oijuly,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  fifty- 
seven." 

1.  See  also  forms  in  Stimpson  v.  Put- 
nam, 41  Vt.  238. 

2.  This  form  is  copied  from  the  rec- 
ord in  People  v.  Dwyer,  90  N.  Y.  402. 
See  Birds.  Rev.  Stat.  N.  Y.  (1896),  p.  631, 
§  5,  and  list  of  statutes  cited  J«/ra,  note 
I,  p.  228. 


264 


Volume  5. 


6206.  CONTEMPT.  6206. 

Ja?iuary,  iS83,  at  ten  o'clock  in  the  forenoon  of  said  day,  there  to 
answer  us  as  well  touching  the  contempt  which  they  and  each  of 
them  as  alleged  have  committed  against  us,  as  also  such  other 
matters  as  shall  be  laid  to  their  and  each  of  their  charge,  and  further 
to  perform  and  abide  such  order  as  our  said  court  shall  make  in  this 
behalf. 

And  have  you  then  and  there  this  writ  and  make  and  return  a  certifi- 
cate under  your  hand  of  the  manner  in  which  you  shall  have  executed 
the  same. 

Witness,  Hon.  Jasper  W.  Gilbert^  one  of  the  justices  of  our  court,  at 
the  court-house  in  the  city  of  Brooklyn^  on  the  third  day  of  January^ 
iSS2. 

(seal)  Chas.  B.  Elliott^  Clerk. 

H.  G.  Hull,  Attorney  for  Relator,  John  D.  Negus. 

{V)  Mandamus. 

Form  No.  6205. 

(Precedent  in  People  v.  Pearson,  4  111.  272.) 

State  of  Illinois^  Supreme  Court: 
The  People  of  the  State  of  Illinois^  to  any  and  all  Sheriffs  of  all  Coun- 
ties of  the  State  of  Illinois,  Greeting:^ 

We  command  you,  and  each  of  you,  that  you  take  the  body  of 
John  Pearson,  and  that  you  have  him  before  the  Supreme  Court 
of  the  State  of  Illinois,  at  Springfield,  forthwith,  to  answer  for  a 
contempt  of  said  court,  in  refusing  to  obey  a  peremptory  mandamus 
issued  out  of  the  said  court,  and  to  him  directed  and  delivered,  and 
have  you  then  and  there  this  writ. 

Witness,  William  Wilson,  chief  justice  of  our  said  Supreme  Court  at 
Springfield,  this  tenth  day  oi  June,  a.  d.  18.4^. 

(seal)  J.  M.  Duncan,  Clerk  S.  C. 

Per  Jas.  H.  Matheny,  D.  C. 

(r)  Order. 

Form  No.  6206. 
(i  N.  Car.  Code  (1883),  p.  352,  No.  13.) 

John  Doe     ) 
against       >  Justice's  Court. 
Richard  Roe.  ) 

State  of  North  Carolina,  to  any  constable  or  other  lawful  officer  of 
Nash  county.  Greeting: 
Whereas,  it  appears  that  Samuel  Short  was  duly  served  on  the  six- 
teenth day  of  February,  iS98,  with  an  order  issued  by  Abraham  Kent, 
Esq.,  one  of  our  justices  of  the  peace  for  said  county,  requiring  said 
Samuel  Short  to  attend  before  said  justice  at  his  office,  in  said  county, 
on  the  twenty-third  ddiy  of  February,  iS98,  and  be  examined  on  oath 

1.  Addren.  —  It  was  held  in  this  case    any  and  all  sheriffs  of  all  counties  of  the 
that  an  attachment  from  the  supreme     state  of  Illinois." 
court  for  contempt  may  be  directed  ' '  To 

265  Volume  5. 


6207.  CONTEMPT.  6207. 

concerning  a  certain  debt  owing  to  the  defendant  named  in  the 
above  action,  by  the  said  Samuel  Short  (or  property  held  by  the  said 
Samuel  Short  for  the  benefit  of  the  defendant^. 

And  whereas,  the  said  Samuel  Shorty  in  contempt  of  said  order,  has 
refused  or  neglected,  and  doth  still  refuse  or  neglect,  to  appear  and 
be  examined  on  oath  as  in  said  order  he  is  required  to  do; 

Now,  therefore,  we  command  you  that  you  forthwith  attach  the 
said  Samuel  Short,  so  as  to  have  his  body  before  Abraham  Kent,  Esq., 
one  of  our  justices  of  the  peace  for  your  county,  on  the  twenty-sixth 
day  oi  February,  iS98,  at  his  office  in  said  county,  then  and  there  to 
answer,  touching  the  contempt  which  he,  as  is  alleged,  hath  com- 
mitted against  our  authority;  and  further,  to  perform  and  abide  by 
such  order  as  our  said  justice  shall  make  in  his  behalf.  And  have 
you  then  and  there  this  writ,  with  a  return,  under  your  hand,  of  your 
proceedings  thereon. 

Hereof  fail  not  at  your  peril. 

Witness,  our  said  justice,  this  twenty-third  day  oi  February,  i898. 

Abraham  Kent,  Justice  of  the  Peace. 

{a)  Subpoeruz. 

aa.  In  Civil  Case. 

(aa)  Before  Court  of  Record. 

Form  No.  6207.' 

The  State  of  Alabama.  )  Circuit  Court, 

Jefferson  Connty.  \  April  Term,  iS96. 

To  any  Sheriff  of  the  State  of  Alabama  —  Greeting: 

It  having  been  made  known  to  the  court  by  competent  evidence 
that  heretofore,  viz:  on  the  tenth  day  oiApril,iS96,a.  subpoena  issued 
out  of  this  court  directed  to  fohn  Livingston  commanding  him  to 
appear  at  the  present  term  of  this  court  to  give  evidence  in  behalf 
of  the  plaintiff  in  a  case  now  pending  in  this  court  ^hertiw  John  Doe 
is  the  plaintiff  dind  Richard  Roe  is  the  defendant.  And  it  appearing 
to  the  court  by  the  return  of  the  sheriff  on  said  subpoena  indorsed, 
that  the  said  John  Livingston  was  duly  served  with  a  copy  of  said  sub- 
poena; and  it  further  appearing  that  said  John  Livingston  has  wilfully 
refused  to  appear  and  testify,  as  by  said  subpoena  he  was  required; 
and  wilfully  and  without  good  excuse  refuses  to  appear  in  obedience 
to  said  subpoena.  You  are,  therefore,  hereby  commanded  to  arrest 
the  said  John  Livingston  and  him  safely  keep,  unless  he  give  bond  in 
the  sum  oi  five  hundred  dollars,  so  that  you  have  him  before  this 
court  on  the  twentieth  day  oi  April,  iS96. 

Herein  fail  not,  and  show  by  your  return  how  you  have  executed 
this  process. 

Witness  my  hand,  this  the  elez/enth  day  oi  April,  i896. 

Richard  Fleming,  Clerk. 

1.  Alabama.  — Civ.  Code  (1886),  §  756,  subs.  4.  See  also  statutes  cited  supra, 
note  I,  p.  228, 

366  Volume  5. 


6208.  CONTEMPT,  6210. 

Form  No.  6208. 

(Sand.  &  H.  Dig.  Ark.  (1894),  p.  1630,  No.  49.)' 

The  State  of  Arkansas  to  the  Sheriff  of  Pulaski  County: 

You  are  commanded  to  arrest  George  Morgan  and  have  him  before 
the  Pulaski  Circuit  Court  on  the  fourth  day  of  its  next  (^March)  term, 
which  will  be  on  Thursday ^  the  third ddiy  of  March^  iS98,  as  well  to 
testify  in  behalf  of  the  plaintiff  in  an  action  in  said  -court  between 
Richard  Roe,  plaintiff,  dind  John  Doe,  defendant,  as  to  answer  for 
contempt  of  said  court;  and  you  will  admit  him  to  give  bail  for  his 
appearance  in  the  sum  of  one  hundred  dollars. 

(seal)  Witness  my  hand  and  the  seal  of  said  court  this  tenth  day 
ol  January,  iS98. 

John  Hancock,  Clerk. 

Form  No.  6209.* 

In  the  District  Court  of  the  First  Judicial  District  of  the  State  of 
Idaho,  in  and  for  the  County  of  Shoshone. 

The  People  of  the  State  of  Idaho,  to  the  Sheriff  of  the  County  of 
Shoshone,  Greeting: 

You  are  hereby  commanded,  forthwith,  to  attach  the  body  of 
Richard  Roe  and  bring  him  before  the  District  Court  of  said  county, 
to  show  cause,  if  any  he  has,  why  he  should  not  be  adjudged  in  con- 
tempt for  failing  to  attend  and  serve  as  witness  in  said  court,  after 
being  personally  served  with  a  subpoena  to  attend. 

Witness,  Hon.  John  Marshall,  judge  of  the  District  Court,  this 
twenty-fourth  day  of  February,  i898. 

(seal)  John  Hancock,  Clerk. 

Form  No.  6210.* 

In  the  name  of  the  People  of  the  State  of  Michigan. 

(seal)     To  the  Sheriff  of  the  County  of  Wayne: 

We  command  you  to  attach  Leonard  A.  Ford  and  bring  him  forth- 
with personally  before  the  Circuit  Court  for  the  county  of  Wayne  to 
answer  to  said  court  for  a  certain  contempt  in  not  obeying  a  certain 
writ  of  subpoena,  issued  out  of  the  said  court,  and  to  him  directed, 
and  on  him  duly  served,  commanding  him  to  appear  on  Monday,  the 
eighth  day  oi  September,  i896,  at  the  city  of  Detroit,  before  the  said 
court,  to  testify  and  give  evidence  in  a  certain  cause  then  to  be  tried 
between  John  Doe,  plaintiff,  and  Richard  Roe,  defendant,  on  the  part  of 
the  defendant.  And  you  are  further  commanded  to  detain  the  said 
Leonard  A.  Fordm  your  custody  until  he  shall  be  discharged  by  the 
said  Circuit  Court.     And  have  you  there  then  this  writ. 

Witness,  the  HonorabX^  R.  E.  Frazer,  circuit  indgt,  aX  the  city  of 
Detroit,  this  eighth  day  of  September,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  ninety-six. 

John  Hancock,  Clerk. 

1.  Arkansas.  —  Sand.  &  H.  Dig.  See  statutes  cited  supra,  note  i,  p.  228. 
(1894),  ^  2944.  See  also  statutes  cited  3.  Michigan.  —  How.  Anno.  Stat. 
j«/ra,  note  I,  p.  228.  (1882),  §  7257,  subs.  5,  §  7483.     See  also 

2.  Idaho.  —  Rev.  Stat.  (1887),  §  5158.  statutes  cited  j«/ra,  note  i,  p.  228. 

267  Volume  5. 


6211.  CONTEMPT.  6213. 

Form  No.  62  1 1 .' 

The  State  of  Mississippi  to  the  Sheriff   of  De  Soto  County  in   said 
State: 

You  are  hereby  commanded  to  take  the  body  of  John  Livingston^  if 
to  be  found  in  said  county,  and  have  him  before  the  Chancery  Court 
of  the  county  of  De  Soto  in  the  state  aforesaid,  at  the  court-house  in 
the  town  of  Hernando  in  said  De  Soto  county,  on  the  tenth  day  of  May, 
A.  D.  \W5,?iX  eleven  o'cXozV  A.  u.^Xo  testify  for  Xht plaintiff  in  the 
cast  ol  John  Doe  zgdimst  Richard  koe.  No.  183.  But  if  s&id  John  Liv- 
ingston shall  furnish  bail,  with  sureties,  to  be  approved  by  you,  in  the 
sum  of ^ve hundred doWciTS,  for  his  r.ppearance  as  above  required,  you 
will  discharge  him.^ 

And  have  there  then  this  writ. 

Given  under  my  hand  and  seal  of  said  court,  and  issued  this  the 
second  day  of  May ,  a.  d.  iS95. 

(seal)  Charles  Fleming., 

Chancery  Clerk,  De  Soto  County,  Miss. 

Form  No.  62  I2.* 

In  the  District  Court  of  the  Fourth  Judicial  District  of  the  State  of 
Montana.,  County  of  Missoula.,  ss: 

The  People  of  the  State  of  Montana  to  the  Sheriff  of  said  Missoula 
County,  Greeting:* 

You  are  hereby  commanded  forthwith  to  attach  the  body  of  Leonard 
A.  Ford,  defaulting  witness,  and  have  him  before  our  said  court  on 
Monday,  the  twenty-first  day  of  February,  a.  d.  \W8,  then  and  there 
to  show  cause  why  he  should  not  be  punished  for  contempt  in  dis- 
obeying the  mandate  of  said  court. 

Witness,  the  Hon.  John  Marshall,  judge,  and  the  seal  of  said  court, 
this  Jourteenth  day  of  February,  a.  d.  i2>98. 

(seal)  Attest:     John  Hancock^  Clerk. 

Form  No.  6213.* 

State  of  Rhode  Lsland  and  Providence  Plantations. 
Providence,  sc. 

Court  of  Common  Pleas,  May  Term,  a.  d.  iS9S. 
To  the  Sheriff  of  said  County  or  to  his  Deputy,  Greeting: 

Whereas,  at  our  said  court,  now  holden  at  Providence,  within  and 
for  said  county,  at  its  present  term,  John  Livingston  has  been  duly 
summoned  to  appear  before  our  said  court,  to  give  evidence  of  what 

1.  Mississippi. — Anno.  Code  (1892),  the  state.  Miss.  Anno.  Code  (1892),  § 
§  506.      See  also  statutes  cited  supra,     3454. 

note  I.  p.  228.  3.  Montana.  —  Code  Civ.  Proc.  (1895), 

2.  Bond  for  Appearance.  —  The  court    §§2173,  3306,  1650,  subs.  4. 

shall,    on    ordering     the     attachment,         4.  Address.  —  The    warrant   must  be 

direct  whether  the  witness  shall  enter  directed   to   the   sheriff   of  the  county 

into  bond   for  his  appearance,  and  in  where    the   witness    may   be.      Mont, 

what  sum,  and  whether  with  or  without  Code  Civ.  Proc.  (1895),  §  3309. 
sureties,  which  bond  the  sheriff  or  other        5.  Rhode  Island.  —  Gen.   Laws  (1896), 

officer  by  whom  the  attachment  is  exe-  c.    221,    §   6.     See   also   statutes   cited 

culed  is  authorized  to  take,  payable  to  supra,  note  i,  p.  228. 

268  Volume  5. 


6214.  CONTEMPT.  6215. 

he  knows  relative  to  a  certain  cause  now  pending  httvTtevi , John  Doe, 
plaintiff,  dixxdi  Richard  Roe,  defendant,  and  has,  in  contempt  of  our  said 
court,  and  to  its  great  hindrance  and  delay,  neglected  and  refused  to 
appear  to  testify  in  said  case: — 

We  therefore  command  you  to  attach  the  body  of  the  said  John 
Livingston  and  have  him  forthwith  before  our  said  court  to  testify  in 
relation  to  said  case,  and  likewise  to  abide  the  order  and  determina- 
tion of  our  said  court  for  his  contempt  of  its  process. 

Witness,  Hon.  Thomas  Durfee,  chief  justice  of  our  Supreme  Court, 
at  Providence,  this  third  (la.y  olMay,  a.  d.  i%93. 

Charles  Edwards,  Clerk. 

Form  No.  6214.' 

The  State  of  Tennessee  to  the  Sheriff  of  J/aary  County,  Greeting: 

Whereas,  in  our  Circuit  Court  for  Maury  county,  an  action  is  pend- 
ing wherein  John  Doe  is  plaintiff  and  Richard  Roe  is  defendant,  and 
whereas,  it  appears  to  the  court  from  the  affidavit  of  the  said  John  Doe, 
and  from  an  inspection  of  the  subpoena,  that  y<7^«  Z/W«^j/^«  has  been 
regularly  summoned  to  appear  at  the  January  term  of  our  said  court,  to 
testify  on  behalf  of  the  said  y^^«  Doe  in  said  action;  and  it  further 
appearing  to  the  court  that  said  John  Livingston  has  failed  to  obey  said 
summons,  in  contempt  of  court:  It  is  therefore  ordered,  that  an  attach- 
ment issue  for  the  body  of  the  said  John  Livingston. 

You  are  hereby  commanded  to  have  the  body  of  the  said  John 
Livingston  before  the  judge  of  our  said  court  to  give  evidence  as  hereto- 
fore commanded,  and  answer  for  contempt.     Herein  fail  not. 

Witness,  George  Smith,  clerk  of  said  court,  at  office  in  Columbia,  this 
second  Monday  in  January,  i8P<?,  and  of  American  independence  the 
one  hundred  and  seventeenth  year. 

Charles  Jones,  Clerk. 
Edward  Smith,  D.  C. 

(W)  Before  Justice  of  Peace. 

Form  No.  6215. 

(Sand.  &  H.  Dig.  Ark.  (1894),  p.  1630,  No.  50.)' 

The  State  oi  Arkansas  to  any  Constable  o(  Pulaski  County : 

You  are  commanded  to  arrest  George  Morgan  and  have  him  before 
me  at  my  office  in  Little  Rock,  on  the  tenth  day  of  January,  xWJf.,  as  well 
to  testify  in  behalf  of  the  plaintiff  in  an  action  pending  before  me 
between  Richard  Roe,  plaintiff,  dix\d  John  Doe,  defendant,  as  to  answer 
for  contempt;  and  you  will  admit  him  to  give  bail  for  his  appearance 
in  the  sum  of  one  hundred  diOW^s^. 

Given  under  my  hand  t\i\s first  day  of  January,  iWJf.. 

Thomas  Mason,  J.  P. 

1.  Tennessee.— ZoAe^  (1896),  §  5918,  2.  Arkansas.  — '?,^nA.  &  H.  Dig. 
subs.  4.  See  also  statutes  cited  supra,  (1894),  ^  2944.  See  also  list  of  statutes 
note  I,  p.  228.  cited  supra,  note  i,  p.  228. 

269  Volume  5. 


62 1 6.  CON  TEMP  T.  62 1 8. 

Form  No.  6216.' 
State  of  Indiana,     \ 
St.  Joseph  County,  f 
The  State  of  Indiana,  to  John  Smith,  constable  of  Portage  Township: 

Whereas,  it  appears  to  the  satisfaction  of  the  undersigned,  a  jus- 
tice of  the  peace  of  said  township,  that  John  Doe  was,  on  the 
eighteenth  day  of  May,  iS95,  duly  served  with  a  subpoena  to  appear 
at  my  office  at  eleven  o'clock  forenoon  of  the  twenty -seventh  day  of 
May,  iS95,  and  testify  in  a  certain  complaint  then  pending  before 
me,  between  Edward  Rice  and  Richard  Roe,  and  that  he  neglected  to 
attend  as  such  witness  in  conformity  to  said  subpoena;  you  are  there- 
fore hereby  commanded  to  attach  the  body  of  said  John  Doe  and  him 
forthwith  bring  before  me,  to  answer  to  his  alleged  contempt  in  so 
disobeying  said  writ  as  aforesaid.  And  of  this  attachment  make  due 
return. 

Given  under  my  hand  and  seal,  this  twenty-eighth  day  of  May,  iS95. 

Charles  Fleming,     (seal) 

bb.  In  Criminal  Cask. 

ifld)  Before  Court. 

Form  No.  6217.' 

Co^unt^^ofS'?'  \  ^"  ^^'''^^^^  Court,  Second  Judicial  Circuit. 

The  State  of  Florida  ) 
against  >• 

John  Doe.  ) 

To  the  Sheriff  of  leon  County,  Greeting: 

We  command  you  that  you  attach  John  Livingston  so  that  you  have 
his  body  before  the  honorable  the  judge  of  the  Circuit  Court  for  said 
county,  instanter,  to  answer  us  as  well  of  a  certain  contempt  by  him 
to  us  offered  in  failing  to  attend  the  said  court  at  the  spring  term, 
i896,  as  a  witness  in  behalf  of  the  state  in  the  above  entitled  cause 
(as  in  the  last  summons),  as  upon  those  things  to  do  and  receive 
what  our  said  court  shall  consider  just  and  proper  in  the  premises. 
And  have  you  then  and  there  this  writ. 

Witness  the  Honorable  George  Reynolds,  judge,  as  also  Edward  Rice, 
clerk,  and  the  seal  of  said  court,  at  the  court-house  at  Tallahassee, 
Florida,  this  tenth  day  of  April,  a.  d.  \W6. 

(seal)  Edward  Rice,  Clerk. 

ipS)  Before  Grand  fury. 
Form  No.  6218.' 

The  State  of  Mississippi  to  the  Sheriff  of  De  Soto  County,  in  said 
State : 
You  are  hereby  commanded  to  take  the  body  of  Edward  Rice,  if  to 

1.  Indiana.  —  Horner's  Stat  (1896),  §  975,  976.  See  supra,  note  i,  p.  228. 
1436.  See  also  statutes  cited  supra,  3.  Mississippi. — Anno.  Code  (1892), 
note  I,  p.  228.  §  3457.     See  also  statutes  cited   supra, 

2.  Florida.— Rev.     Stat.    (1892),     §§  note  i,  p.  228. 

270  Volume  5. 


62 1 9.  CON  TEMP  T.  6219. 

be  found  in  your  county,  and  have  him  before  the  grand  jurors  of  the 
state  of  Mississippi,  impaneled  for  the  May  term,,  a.  d.  i8P7,  of  the 
Circuit  Court  of  the  county  of  De  Soto,  in  the  state  aforesaid,  at 
the  court-house,  in  the  town  of  Hernando  in  said  De  Soto  county,  on 
tht  fifth  day  oi  June,  i897,  at  eleven  o'clock  A.  m.,  to  testify  concerning 
any  matters  upon  which  he  may  be  legally  examined.  But  if  the  said 
Edward  Rice  shall  furnish  bail,  with  sureties,  to  be  apprpved  by  you, 
in  the  sum  oi  five  hundred  dollars,  for  his  appearance  at  said  time  and 
place,  you  will  discharge  him.^ 

And  have  there  then  this  writ. 

Given  under  my  hand  and  the  seal  of  said  court,  and  issued  this 
the  twenty-eighth  day  of  May,  1 8P7. 

Daniel  Webster, 
Circuit  Clerk,  De  Soto  County,  Miss. 

(cc^   Before  County  Attorney  in  Liquor  Case. 

Form  No.  6219.' 

The  State  of  Kansas  to  Charles  Johnson,  Sheriff  of  Linn  County,  in 
said  State,  Greeting: 

Whereas,  on  the  tenth  day  of  April,  a.  d.  \W6,  it  having  become 
my  duty  as  county  attorney  of  said  Linn  county,  in  the  state  of 
Kansas,  because  of  due  notification  to  me  theretofore  duly  given  of  a 
certain  violation  of  the  act  of  the  legislature  of  the  state  of  Kansas 
entitled  "An  Act  amendatory  and  supplemental  to  chapter  128  of  the 
Session  Laws  of  1881,  being  an  act  entitled  'An  Act  to  prohibit  the 
manufacture  and  sale  of  intoxicating  liquors,  except  for  medical, 
scientific  and  mechanical  purposes,  and  to  regulate  the  manufacture 
and  sale  thereof  for  such  excepted  purposes,'  "  approved  March  7, 
1885,  to  diligently  inquire  into  the  facts  of  such  alleged  violation  of 
said  act,  and  having  reason  to  believe  that  one  Richard  Roe  of  said 
county  had  information  and  knowledge  of  said  alleged  violation  of 
said  act,  I  did,  as  such  county  attorney,  duly  sign  and  issue  my  cer- 
tain subpoena  as  by  said  act  in  such  cases  provided,  directed  to  the 
sheriff  of  said  Linn  county,  thereby  requiring  and  commanding  the 
said  Richard  Roe  to  appea.T  before  me  at  the  county  court-house  in 
said  county  on  the  twenty-second  day  of  April,  a.  d.  \Z96,  at  eleven 
o'clock  A.  M.  of  said  day,  then  and  there  to  testify  before  me  con- 
cerning said  violation  of  said  act,  which  said  subpoena  was  delivered 
by  me  forthwith  to  said  sheriff,  and  was  by  him  duly  served  upon  said 
Richard  Roe,  at  said  Linn  county,  on  the  said  tenth  day  of  April,  A.  d. 
\896,  as  by  return  thereof  to  me  by  said  sheriff  fully  appears;  and 
the  time  so  fixed  for  his  said  appearance  having  fully  passed,  and 
said  Richard  Roe  having  wholly  failed  to  attend  before  me  as  he  was 
as  aforesaid  required  and  commanded,  and  no  excuse  for  said  dis- 
obedience to  said  subpoena  appearing: 

These  are  therefore  to  command  you  that  you  do  forthwith  arrest 
the  said  Richard  Roe  and  bring  him  before  me  at  the  county  court- 

1.  See  supra,  note  2,  p.  268.  2.  Kansas.  —  Gen.     Stat.    (1889),     § 

2435. 
271  Volume  5. 


6220.  CONTEMPT.  6220. 

house  in  said  Linn  county,  on  tlie  twenty-ninth  day  of  Aprils  a.  d. 
xW6,  at  eleven  o'clock  A.  m.,  to  give  his  testimony  and  be  examined 
as  aforesaid,  and  to  answer  for  his  said  contempt  in  disobeying  my 
said  subpoena.  And  have  you  then  and  there  this  writ,  with  your 
due  and  proper  return  thereof. 

Witness  my  hand  at  Mound  City,  Potose  township  in  said  Linn 
county,  in  the  state  of  Kansas,  this  twenty-second  day  of  April,  a.  d. 

Ralph  Anderson, 
County  Attqrney  of  Linn  County,  Kansas. 

cc.  Before  United  States  Senate. 

Form  No.  6220. 

(Precedent  in  Sanborn  v.  Carleton,  15  Gray  (Mass.)  399.)* 

By  authority  of  the  Senate  of  the  United  States,  in  the  Senate  of  the 

United  States. 
To  Dunning  R.  McNair,  sergeant  at  arms  of  the  senate  of  the   United 
States: 

Whereas  F.  B.  Sanborn,  of  Concord  in  the  State  of  Massachusetts, 
was  on  the  sixteenth  day  oi  January,  a,  d.  \2>60,  duly  summoned  to 
appear  and  testify  before  the  select  committee  of  the  senate  "  to  in- 
quire into  the  facts  attending  the  late  invasion  and  seizure  of  the 
armory  and  arsenal  of  the  United  States  at  Harper  s  Ferry  in  Virginia 
by  a  band  of  armed  men,"  and  has  failed  and  refused  to  appear  before 
said  committee  pursuant  to  said  summons.  And  whereas  the  senate 
did  on  the  fifteenth  day  of  February,  A.  D.  i2>60,  by  a  resolution  direct 
the  president  of  the  senate  to  issue  his  warrant  to  the  sergeant  at 
arms,  commanding  him  to  take  into  his  custody  the  body  of  the  said 
F.  B.  Sanborn,  wherever  to  be  found,  and  to  Jiave  the  same  forthwith 
before  the  bar  of  the  senate  to  answer  for  contempt  of  the  authority 
of  the  senate  in  thus  failing  and  refusing  to  appear  before  said  com- 
mittee: 

You  are  therefore  commanded  to  take  the  body  of  the  said  F.  B. 
Sanborn,  wherever  found,  and  forthwith  have  the  same  before  the  bar 
of  the  senate  to  answer  for  contempt  of  the  authority  of  the  senate  in 
thus  failing  to  appear  before  its  committee. 

In  testimony  whereof  I  have  set  my  hand  and  seal  of  the  Senate  of 
the  United  States  this  16th  day  of  February,  1S6O. 

(seal)  John  C.  Breckenridge, 

Vice  President  of  the  United  States  and 
President  of  the  Senate. 

Attest:  Asbury  Dickins, 

Secretary  of  the  Senate  of  the  United  States. 


1.  It  was  held  in  this  case,  in  habeas     fore  a  committee  of    the  senate,  and 
corpus  proceedings,  that  a  warrant   is-     addressed  only  to  the  sergeant-at-arms 
sued   by  order   of    the   senate   of    the     of  the  senate,  cannot  be  served  by  dep- 
United  States  for  the  arrest  of  a  witness     uty  in  Massachusetts. 
for  contempt  in  refusing  to  appear  be- 

272  Volume  5. 


6221.  CONTEMPT.  6223. 

{/)   Venire. 
'    Form  No.  6221.' 

In  the  Superior  Court,  in  and  for  the  County  of  Marin,  State  of 
California. 

The  People  of  the  State  of  California,  to  the  Sheriff  of  the  County 
of  Marin,  Greeting: 

You  are  hereby  commanded  forthwith  to  attach  the  body  oi  John 
Livingston,  defaulting  juror,  and  have  him  before  our  said  court,  on 
Friday,  the  tenth  day  of  April,  18P4,  at  the  hour  of  elei^en  A.  m.,  and 
there  to  show  cause  why  he  should  not  be  punished  for  contempt,  in 
(^Here  describe  the  contemptuous  act^. 

Witness,  Hon.  George  Randolph,  superior  judge,  and  the  seal  of  the 
said  court,  this  seventh  day  of  April,  iS96. 

Attest :     Richard  Fleming,  Clerk, 

(seal)  By  George  Jones,  Deputy  Clerk. 

{Indorsement.  )2 

Form  No.  6222.* 

State  of  Illinois,  ) 
La  Salle  County.  ) 

The  People  of  the  State  of  Illinois,  to  any  Constable  of  said  County, 
Greeting: 

Whereas,  John  Smith  has  been  duly  summoned  to  appear  before 
me,  at  my  office  in  said  county,  on  the  tenth  day  of  AT  ay,  a.  d.  i8P^, 
to  serve  as  a  juror  in  a  certain  case  then  and  there  pending  before 
me,  wherein  John  Doe  was  the  plaintiff  and  Richard  Roe  was  the 
defendant,  and  hath  failed  to  appear  according  to  the  command  of 
the  summons: 

We,  therefore,  command  you  to  attach  the  body  of  the  said  John 
Smith,  and  him  forthwith  bring  before  me,  at  my  office  in  Ottawa,  in 
said  county,  then  and  there  to  answer  for  contempt  in  not  obeying 
said  summons,  and  to  show  cause,  if  any  he  have,  why  he  should  not 
be  fined  for  such  contempt,  according  to  the  statute  in  such  case 
made  and  provided.  Hereof  fail  not,  but  of  this  writ  make  legal 
service  and  due  return. 

Given  under  my  hand  and  seal,  this  eleventh  day  of  May,  a.  d.  \Z9}^. 

Richard  Fleming,     (seal) 

Justice  of  the  Peace. 

4.  Interrogatories  to  Contemnor. 

a.  Order  Directing  Filing. 

Form  No.  6223.* 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  Court-house, 

1.  California. — Code  Civ.  Proc.  3.  Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1897),  i;^  1209,  subs.  II.  See  also  (1896),  p.  2462,  par.  161.  See  also  stat- 
statutes  cited  supra,  note  I,  p.  228.  utes  cited  supra,  note  I,  p  228. 

2.  Indorsement.  —  The  judge  must  in-  4.  This  form  is  copied  from  the 
dorse  on  the  warrant  a  direction  that  record  in  the  case  of  People  v.  Dwyer, 
bail  may  be  taken  specifying  the  90  N.  Y.  402.  See  Birds.  Rev.  Stat, 
amount.  Cal.  Code  Civ.  Proc.  (1897),  N.  Y.  (1896),  p.  633,  §  16,  and  statutes 
^  1213.  cited  supra,  note  I,  p.  228. 

5  E.  of  F.  P.  -  18.  273  Volume  5. 


6223.  CONTEMPT.  6223. 

in  the  City  of  Brooklyn,  in  the  County  of  Kings,  on  the  9th  day  of 
January,  iS83. 

Present:  Hon.  /as/>er  W.  Gilbert,  Justice. 
The  People  of  the  State  of  New  York,  on  the " 
relation  of  John  D.  Negus, 
against 
Richard  S.    Roberts,    William   Dwyer,    John 
McCarty,  James  Kane,  James    Weir,  Jr., 
Daniel    O'Connell,     Philip     Casey,     James  \ 
Donovan,     William  J.    LePine,    Felix    W. 
Doyle,     William    Allison,    Philip    Schmitt, 
William  H.  Waters,  Thomas  Bovvers,  Ben- 
jamin  B.    Seaman,    Patrick  J.   Kelly  and 
Thomas  R.  A  r milage. 
Each  of  the  said  seventeen  last  above  named  persons  being  charged 
with  a  contempt  of  court  in  wilfully  violating  an  order  of  injunction 
granted  by  Hon.  Henry  A.  Moore,  County  Judge  of  Kings  County,  on 
the  26th  day  of  December,  iS81,  in  a  certain   action  pending  in  the 
Supreme  Court  of  the  State  of  New  York,  County  of  Kings,  wherein 
John  D.  Negus  is  plaintiff  and   The  City  of  Brooklyn,   The  Brooklyn 
Elevated  Railway  Company  and  others  are  defendants,  and  a  writ  of 
attachment  having  been   issued  against  each  of  the  above  named 
seventeen  persons  for  such  contempt,  directed  to  the  Sheriff  of  the 
County  of  Kings,   and   returnable    this   day,    and    the    said    Sheriff 
having  made  return  to  the  said  attachment,  that  he  had  attached  the 
said  above   named   seventeen  persons  and   each  of  them,  and   has 
taken   bonds  for  the   due   appearance  of   them   and   each   of  them 
according  to  the  exigency  of  the  said  attachment,  now  on  filing  said 
attachment  and  return  and  the  several  bonds  accompanying  same, 
and  the  said  seventeen  above  named  persons  and  each  of  them  now 
being  by  virtue  of  such  attachment  personally  before  the  Court,  and 
each  severally  denying  that  he  is  guilty  of  the  misconduct  alleged 
against  him  as  aforesaid,  and  said  Richard  S.  Roberts,  appearing  by 
Ward  &>  Jenks,    his  counsel,   and   the  other  persons  appearing  by 
Winchester  Britton,  their   counsel,  and    reading  and   filing  the   said 
attachment  and  the  papers  on  which  the  same  was  granted.     Now 
on   motion  of  Herbert  G.  Hull,  the  attorney  for  the  relator  above 
named,  and  after  hearing  Ward&^Jenks,  of  counsel  ior  Richard  S. 
Roberts,   and  Winchester  Britton,  counsel   for  the  other    persons,   in 
opposition,  and  David  Barnett  and  Erastus  Cooke,  of  counsel  for  the 
relator,  in  support,  Ordered  that  the  relator  above  named  forthwith 
file  in  the  office  of  the  Clerk  of  this  Court,  interrogatories  specifying 
the  facts  and  circumstances  alleged  against  the  aforesaid  seventeen 
persons  and  each  of  them,   and  requiring  their  and  each    of  their 
answers  thereto. 

And  it  is  further  ordered  that  the  said  seventeen  above  named 
persons  and  each  and  every  of  them  make  written  answers  to  said 
interrogatories,  on  oath,  within  tinenty-four  hours  after  the  service  of 
said  interrogatories  on  them  or  their  counsel. 

It  is  further  ordered  that  further  proceedings  .herein  stand 
adjourned  until  the  11th  day  oi  January,  i2,S2,  at  10  o'clock  in  the 

274  Volume  5. 


6224.  CONTEMPT.  6224. 

forex\oox\,  at  a  Special  Term  of  this  Court,  to  be  held  at  the  Court- 
house, in  the  City  of  Brooklyn,  County  of  Kings,  at  which  time  and 
place  it  is  hereby  ordered  and  directed  by  this  Court  that  the  said 
seventeen  above  named  persons  and  each  of  them  attend  this  Court 
and  abide  the  further  order  of  this  Court. 
Granted/a//«ary9,  i8^^. 

Chas.  B.  Elliott,  Clerk. 
Enter:    /.  W.  G. 

b.  Interrogatories. 

(1)  For  Violating  Injunction. 

Form  No.  6224.' 

Supreme  Court,  County  of  Kings. 

{^Title  of  cause  as  in  Form  No.  6223.) 

Interrogatories  to  be  administered  to  Richard  S.  Roberts,  William 
Dwyer,  John  McCarty,  James  Kane,  James  Weir,  Jr.,  Daniel  O'Con- 
nell,  Philip  Casey ^  James  Donovan,  William  J.  LePine,  Felix  W.  Doyle, 
William  Allison,  Philip  Schmitt,  William  H.  Waters,  Thomas  Bowers., 
Benjamin  B.  Seaman,  Patrick  Kelly  and  Thomas  R.  Armitage,  and 
each  of  them,  touching  a  contempt  alleged  against  them  and  each  of 
them  for  wilfully  violating  an  injunction  order  granted  by  Hon.  Henry 
A.  Moore,  County  Judge  of  Kings  County,  on  the  26th  day  of  December, 
1S8I,  in  a  certain  action  then  pending  in  the  Supreme  Court,  State  of 
Ne^vYork,  County  of  Kings,  wherein  John  D.  Negus  was  plaintiff  and 
The  City  of  Brooklyn,  The  Brooklyn  Elevated  Railway  Company  and 
others  were  defendants,  which  interrogatories  are  hereby  exhibited 
pursuant  to  an  order  of  this  Court,  dated  January  9th,  iS82. 

First  interrogatory.  Were  you  from  the  1st  day  of  January,  18SI, 
to  and  including  the  31st  day  of  December,  1S8I,  one  of  the  Aldermen 
of  the  City  of  Brooklyn}  If  yea,  in  what  ward  in  said  City  were  you 
elected  as  such? 

Were  you,  during  the  time  above  mentioned,  a  member  of  the 
Common  Council  of  the  City  of  Brooklyn? 

Second  interrogatory.  Were  you  served  on  the  27th  day  of  Decem- 
ber, 188 1,  at  the  City  Hall,  in  the  City  of  Brooklyn,  and  previous  to 
the  meeting  of  the  Common  Council  on  that  day,  with  a  copy  of  the 
summons  and  complaint,  affidavits,  undertaking  and  injunction 
order  and  order  to  show  cause  in  an  action  in  the  Supreme  Court  of 
the  State  of  Ne7v  York,  County  of  Kings,  wherein  John  D.  Negus 
was  plaintiff  and  The  City  of  Brooklyn,  The  Brooklyn  Elevated  Railway 
Company  and  others  were  defendants,  a  copy  of  which  is  hereto 
annexed  marked  '■'■A,  January  9,  i8S2"} 

Was  not  such  injunction  and  order  to  show  cause  served  upon  you 
by  showing  you  the  original  injunction  and  order  to  show  cause  in 
said  action,  bearing  the  signature  or  purporting  to  bear  the  signature 
thereto  of  Henry  A.  Moore,  County  Judge  of  Kings  County,  and  at  the 
same  time  and  place  was  there  not  delivered  to  and  left  with  you  per- 

1.  This  form  is  copied  from  the  record     (1896),  p.  633,  §  16,  and  statutes  cited 
in  the  case  of  People  v.  Dwyer,  90  N.     supra,  note  1,  p.  228. 
Y.  402.     See    Birds.    Rev.   Stat.   N.   Y. 

275  Volume  5. 


6226.  CONTEMPT.         -  6225. 

sonally  a  copy  6r  what  purported  to  be  a  copy  thereof,  together  with 
a  printed  copy  of  the  summons  and  complaint  in  said  action? 

When  was  such  service  made? 

Answer  fully. 

Third  interrogatory.  Was  not  the  object  of  the  adjournment  of 
said  meeting  held  December  27th,  iS81,  and  after  the  service  of  the 
injunction  order  made  by  Hon.  Henry  A.  Moore,  County  Judge  of 
Kings  County,  to  December  28ih,  iS81,  for  the  purpose  of  passing 
or  adopting  the  resolution  which  was  the  subject  of  the  injunction 
order  served  on  you? 

Fourth  interrogatory.  Were  any  of  the  adjournments  had  after  the 
service  of  the  injunction  for  the  purpose  of  adopting  the  aforesaid 
resolutions? 

Fifth  interrogatory.  Did  you  attend  a  meeting  or  session  of  the 
Common  Council  of  the  City  of  Brooklyn  on  the  31st  day  of  December, 
iS811     If  yea,  at  what  time  was  said  meeting  or  session  held? 

Sixth  interrogatory.  Was  a  motion  then  made  (if  yea,  by  whom?) 
to  take  from  the  table  a  communication  from  his  Honor  the  Mayor, 
presented  December  19th,  i881,  disapproving  of  resolutions  adopted 
in  Common  Council  December  6th,  iS81? 

Was  or  was  not  such  communication  the  veto  or  disapproval  by 
the  Mayor  of  the  resolutions  mentioned  in  the  plaintiff's  complaint 
in  the  action  hereinbefore  mentioned?  If  you  answer  nay,  or  say 
you  do  not  know  or  do  not  remember,  then  produce  and  annex 
to  your  answer  to  this  interrogatory  a  copy  of  the  resolutions  adopted 
December  6th,  i881,  to  which  such  communications  referred. 

Seventh  interrogatory.  Was  a  motion  then  made  to  adopt  the  said 
resolutions  notwithstanding  the  objections  of  his  Honor  the  Mayor? 
Who  made  such  motion? 

Were  the  resolutions  mentioned  in  the  plaintiff's  complaint  and 
injunction  order  adopted  by  a  two-thirds  vote?  Did  you  not  vote  in 
the  affirmative  on  such  motion?  Who  else  voted  in  the  affirmative 
on  said  motion?     How  many  members  so  voted? 

Eighth  interrogatory.  Was  or  was  not  a  motion  then  made  to 
reconsider  the  vote  then  just  taken,  or  was  or  was  not  said  motion  lost? 
Did  you  not  vote  in  the  negative  on  said  motion  to  reconsider  the  vote 
taken  on  the  adoption  of  the  resolutions?  Who  else  voted  in  the 
negative? 

Herbert  G.  Hull,  Attorney  for  the  Relator. 

(2)  For  Disobeying  Mandamus, 
Form  No.  6225. 

(Precedent  in  People  v.  Pearson,  4  111.  274.) 
Supreme  Court  of  the  State  of  Illinois,  June  Term,  \8Jfi. 
The  People  of  the  State  of  Illinois  on  ^ 

the  relation  of  Robt.  C  Bristol       I  Attachment  for  Contempt. 

John  Pea  rson .  J 

Interrogatories  propounded  by  said  relator  to  be  answered  by  the 
said  John  Pearson. 

276  Volume  5. 


6226.  CONTEMPT.  6226. 

Interrogatory  i.  Did  J.  V.  Scammon,  on  or  about  the  twenty- fifth 
day  of  April,  a.  d.  eighteen  hundred  and/^r/y,  at  the  Circuit  Court  in 
and  for  the  county  of  Cook,  at  the  last  term  of  said  court,  dehver  to 
you  a  certain  writ  of  mandamus,  issued  by  the  said  Supreme  Court,  and 
bearing  date  February  fourteenth,  eighteen  hundred  zxidi  forty,  com- 
manding you  to  sign  a  certain  bill  of  exceptions  in  the  case  oi  Robert 
C.  Bristol  against  John  F.  Phillips  —  and  was  the  same  delivered  in 
open  court,  to  you  ? 

Interrogatory  2.  Have  you,  John  Pearson,  made  a  return  to  said 
writ  of  mandamus?  If  so,  when,  how,  and  where?  And  where  is 
said  writ  of  mandamus  ?  And  when  was  it  last  in  your  possession  ? 
And  if  not  in  your  possession,  what  have  you  done  with  it  ? 

Interrogatory  3.  Did  you,  as  judge  of  said  Circuit  Court,  at  the 
time  the  said  J.  V.  Scammon  delivered  to  you  the  said  writ  of  man- 
damus, direct  the  clerk  of  said  Circuit  Court  to  enter  a  rule  against 
the  said  J.  Y.  Scammon,  to  show  cause  why  he  (said  Scammon)  should 
not  be  fined  or  imprisoned,  or  both,  for  a  contempt  of  court? 

Interrogatory  4.  At  the  time  the  said  Scatnmon  answered  said  rule, 
did  you  not  state  in  open  court  that  you  would  not  obey  said  writ  of 
mandamus,  or  sign  the  bill  of  exceptions  recited  in  said  writ,  or  words 
to  that  effect  ? 

G.  Spring,  Counsel  for  Relator. 

5.  Proceedings  Connected  with  Reference, 
a.  Order  of  Reference. 

Form  No.  6226.' 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  Neiv  York, 
in  and  for  the  Fifth  Judicial  District,  at  the  Court-house  in  the  city  of 
Utica,  in  the  county  of  Oneida,  on  the  8th  day  oi  January,  iS89. 

Present:  Hon.  M.  H.  Merwin,  Justice  Presiding. 
Rozellen  Aldinger 

against 
Emery  S.  Pugh. 

This  action  having  been  commenced  by  the  personal  service  of  the 
summons  and  complaint  on  defendant  on  the  7th  day  of  December, 
1S88,  and  an  injunction  order  having  been  duly  granted  in  said  action 
by  Hon.  //.  C.  Sholes,  Special  Surrogate  of  Oneida  County,  restraining 
and  enjoining  the  defendant  and  his  servants,  agents,  assistants  and 
assigns  from  doing  certain  acts  therein  specified,  and  said  injunction 
order  having  been  duly  served  on  the  defendant  on  said  7th  day  of 
December,  1S88,  and  an  order  having  been  granted  by  Hon.  M.  H. 
Merwin,  a  Justice  of  the  Supreme  Court,  on  the  Slst  day  of  December, 
1S88,  requiring  the  defendant  Emery  S.  Pugh  and  Stephen  J.  Pugh, 
Michael  Leary  and  the  Utica  and  Mohawk  Railroad  Co.  and  each  of 
them  to  show  cause  at  this  term  of  court  why  they  and  each  of  them 
should  not  be  punished  for  their  alleged  contempt,  offense  and  mis- 

1.  This  form  is  copied  from  the  record  in  the  case  of  Aldinger  v.  Pugh,  132  N. 
Y.  403. 

277  Volume  «. 


6227.  CONTEMPT.  6227. 

conduct  for  violating  or  disobeying  said  injunction  order  as  alleged 
and  charged  in  said  order  to  show  cause  and  the  papers  upon  which 
it  was  granted,  which  are  hereby  referred  to. 

Now  on  reading  and  filing  said  order  to  show  cause,  granted  De- 
cember 31,  iS88,  the  petition  of  the  plaintiff,  verified  December  31, 
i888,  the  affidavit  oi  Henry  F.  Coupe,  verified  December  31,  i2>88,  the 
affidavit  of  Geo.  E.  Philo,  verified  December  29,  i888,  copies  of  the 
summons,  complaint  and  injunction,  with  proof  of  personal  service, 
the  affidavit  of  the  defendant  Emery  S.  Pugh,  verified  January  5,  i2>89 
{and  the  affidavits  of  nine  others  similarly  described^,  and  after  hearing 
Henry  F.  Coupe,  one  of  plaintiff's  attorneys,  in  favor  of  the  relief  asked 
in  said  order  to  show  cause  and  W.  E.  Lewis,  Esq.,  attorney  for 
Michael  Leary  and  the  said  Utica  and  Mohawk  Railroad  Co.,  and  Edward 
Lewis,  Esq.,  attorney  for  the  defendant  in  opposition  thereto. 

Ordered,  That  said  matter  be  and  the  same  hereby  is  referred  to 
Charles  G.  Irish,  Esq.,  an  attorney  and  counsellor  at  law  residing  at 
Utica,  New  York,  to  take  the  examination  or  testimony  of  the  parties 
to  this  proceeding  and  their  witnesses  of  the  facts,  charged  as  to 
whether  such  violated  said  injunction  order,  and  if  violated,  whether 
such  violation  was  wilful,  and  whether  Stephen  J.  Pugh,  Michael  Leary 
and  the  Utica  &=  Mohawk  Railroad  Co.  or  either  of  them  knowingly 
or  wilfully  violated  said  injunction  order,  or  whether  they  or  either 
of  them  aided  or  abetted  the  defendant  in  violating  the  same  in  remov- 
ing from  the  farm  of  the  plaintiff,  situated  in  the  town  of  Frankfort, 
Herkimer  county.  New  York,  on  the  22d  and  ^Bth  days  of  December, 
iS88,  a  quantity  of  hay  in  violation  of  said  injunction  order,  and 
the  value  of  the  hay  drawn  away  from  said  farm,  if  any,  on  said  22d 
and  2.^th  days  of  December,  iS88,  and  also  if  said  injunction  order  was 
so  violated  by  said  parties  or  either  of  them  did  the  same  defeat,  im- 
pede, impair  or  prejudice  the  rights  of  the  plaintiff  in  this  action  and 
to  what  extent  and  the  damages  sustained-  by  the  plaintiff,  and  that 
he  report  said  facts  and  return  the  testimony  taken  by  him,  together 
with  his  opinion,  to  the  Supreme  Court,  and  also  ordered  that  either 
party  may  bring  said  matter  to  trial  or  hearing  on  serving  the  other 
with  ten  days  notice. 

Enter:     M.  H.  M.,  J.  S.  C. 

b.  Referee's  Report. 

Form  No.  6227.' 

Supreme  Court. 
Rozellen  Aldinger  \ 
against  > 

Emery  S.  Pugh.   ) 

Reference  as  to  whether  Michael  Leary,  the  U.  &*  M.  R.  R.  Co., 
Emery  Pugh  and  Stephen  J.  Pugh  are  or  either  of  them  is  guilty  of  con- 
tempt of  court  in  disobeying  an  injunction  order  served  on  defendant 
on  Dec.  7th,  1888. 

1.  This  form  is  copied  from  the  record  in  the  case  of  Aldinger  v.  Pugh,  132 
N.  Y.  403. 

278  Volume  5. 


6227.  CONTEMPT.  6227. 

To  the  ^'i/^rff/w^  Court:  — 

The  undersigned,  to  whom  it  was  referred  by  an  order  of  this  court 
granted  at  a  Special  Term  thereof  at  Utica,  N.  Y.,  on  /an.  8th,  i889, 
to  take  the  examination  or  testimony  of  the  parties  to  this  proceed- 
ing and  their  witnesses  of  the  facts  charged  as  to  whether  the  defendant 
violated  said  injunction  order,  and  if  violated  whether  such  violation 
was  wilful  and  whether  Stephen  J.  Pugh,  Michael  Learj^and  the  W.  dr* 
M.  R.  R.  Co.,  or  either  of  them  knowingly  or  wilfully  violated  said 
injunction  order  or  whether  they  or  either  of  them  aided  or  abetted 
the  defendant  in  violating  the  same  in  removing  from  the  farm  of  the 
plaintiff  in  Frankfort,  N.  V.,  on  Dec.  23(1  and  2^h,  iS88,  a  quantity  of 
hay  in  violation  of  said  injunction  order,  and  the  value  of  the  hay 
drawn  away  on  said  ^^^and  2.^h  days  of  jDec,  iS88,  and  also  if  said 
injunction  order  was  violated  by  said  parties  or  either  of  them  did  the 
same  defeat,  impair,  impede  or  prejudice  the  rights  of  the  plaintiff  in 
this  action  and  to  what  extent  are  the  damages  sustained  by  the  plain- 
tiff, and  that  I  report  said  facts  and  return  the  testimony  taken  by  me 
together  with  my  opinion,  would  report  as  follows: 

That  I  have  been  detained  by  the  parties  and  their  attorneys,  the 
testimony  taken  by  me  is  hereto  annexed  and  the  facts  as  I  believe 
them  to  be  from  the  testimony  are  as  follows: 

ist.  That  on  Felf.  13th,  i888,  by  a  written  instrument  dated  that  day, 
the  plaintiff  leased  to  defendant  her  farm  in  the  town  of  Frankfort, 
N.  v.,  for  the  term  of  one  year  from  Apr.  1st,  i888,  to  end  on  Apr.  1st, 
iS89,  at  a  yearly  rent  of  ^50. 

2d.  That  in  and  by  said  lease  the  defendant  agreed  to  keep  at  least 
ten  cows  on  said  premises  and  to  draw  back  on  said  farm  one  load  of 
manure  for  every  ton  of  hay  or  straw  that  he  should  sell  from  said 
premises. 

3d.  That  defendant  took  possession  of  said  farm  on  or  about  Apr.  1, 
iS89,  and  remained  in  possession  during  said  term  and  before  the 
expiration  thereof  fully  complied  with  all  its  provisions  except  as  stated 
in  the  next  finding. 

4th.  That  in  JVirv.,  1S88,  it  was  agreed  between  the  parties  that 
plaintiff  would  waive  the  requirements  for  defendant  to  keep /^«  cows 
if  he  would  give  security  to  draw  back  on  the  place  a  two-horse  load 
of  manure  for  every  ton  of  hay  or  straw  he  might  take  away  and  give 
a  note  with  defendant's  father's  {S.  J.  Pugh)  on  it  for  the  install- 
ment of  rent  dwe  Jan.  1,  iS89. 

5th.  That  defendant  did  not  give  such  security  or  note  and  up  to  the 
time  of  the  commencement  of  this  action  had  drawn  away  about  three 
tons  of  straw  worth  ^0  and  about  thirteen  tons  of  hay  worth  ^152. 

6th.  That  this  action  was  commenced  Z><fr.  7th,  1S88,  by  the  service 
of  summons,  complaint  and  injunction  order  on  the  defendant,  at  the 
house  on  leased  premises,  between  six  and  seven  p.  m.,  that  he  went  to 
6".  /.  Pugh's  the  same  evening  immediately  after  such  service  and 
there  saw  his  father. 

That  that  evening  or  the  next  day  Stephen/.  Pugh  was  fully  cog- 
nizant of  the  service  of  said  order  and  its  contents. 

7th.  That  on  Dec.  22d  and  2Jfth,  1888,  the  said  Stephen  J.  Pugh  drew 
away  from  said  leased  premises  ele^'en  tons  of  hay  of  the  value  of  $/5^ 

279  Volume  5. 


6227.  CONTEMPT.  6227. 

and  that  defendant  was  aware  of  such  removal  and  did  nothing  to 
prevent  it. 

8th.  That  by  such  removal  on  Dec.  22d  and  2^M,  i8<^<?,  defendant 
and  S.  J.  Pugh  and  each  of  them  knowingly  and  wilfully  violated  said 
injunction  order,  the  defendant  in  permitting  the  said  Stephen  J.  Pugh 
to  remove  said  hay  and  the  said  S.  J.  Pugh  in  aiding,  abetting  and 
assisting  the  defendant  to  remove,  draw  away  and  dispose  of  the  hay 
referred  to  in  and  restrained  by  said  injunction  order,  and  further  in 
refusing  to  return  the  hvo  tons  of  said  hay  removed  by  him  on  Dec. 
2Jtth,  \2>88. 

9th.  That  on  the  22d  and  2Jtth  days  of  December,  iS88,  and  prior 
thereto,  Michael  Leary  was  employed  by  the  Utica  6^  Mohaivk  Rail- 
road Company  as  superintendent,  and  as  such  had  charge  of  said 
Utica  6^  Mohawk  Railroad  Company's  street  railroad  in  the  city  of 
Utica,  N.  V. 

loth.  That  the  injunction  order  herein  granted  by  /f.  C.  Sholes, 
Special  Surrogate  of  Oneida  County,  was  served  upon  Michael  Leary 
by  Henry  F.  Coupe  on  Bleecker  St.,  in  the  city  of  Utica,  on  Dec.  2^, 
iS88,  about  10  A.  m.  of  that  day,  by  exhibiting  to  said  Leary  the 
injunction  order  and  the  signature  of  the  Special  Surrogate  granting 
the  same,  but  that  no  copy  of  said  order  was  served  upon  said  Leary 
or  left  with  him  at  any  time. 

nth.  That  said  J/iV^a*?/ Z<?<2r>' had  no  notice  of  the  existence  of 
said  injunction  order  prior  to  said  Dec.  2]f.,  and  no  knowledge  that 
the  hay  referred  to  in  the  petition  and  moving  papers  herein  or  the 
title  to  the  same  was  effected  by  any  order  or  injunction. 

1 2th,  That  said  Michael  Leary  did  not  wilfully  or  knowingly  vio- 
late said  injunction  order  and  that  he  did  not  knowingly  aid  or 
abet  the  defendant,  Emery  S.  Pugh,  or  any  other  person,  in  violating 
the  same  by  receiving  from  the  farm  of  the  plaintiff  in  the  town  of 
Frankfort,  Herkimer  County,  N.  V.,  on  the  22d  and  24th  days  of 
December,  iS88,  a  quantity  of  hay  in  violation  of  said  injunction 
order. 

13th.  That  the  Utica  and  Mohawk  Railroad  Company  xs,  a  corporation 
owning  and  operating  a  street  railroad  in  the  city  of  Utica,  N.  V.,  and 
that  on  the  said  22d  and  24th  days  of  December,  1888,  and  prior 
thereto,  James  F.  Mann  was  the  president,  George  D.  Dimon  was  the 
treasurer,  R.  IV.  Sherman,  vice  president,  and  IV.  E.  Leivis,  secretary 
thereof. 

14th.  That  the  injunction  order  herein  granted  by  H.  C.  Sholes, 
Special  Surrogate  of  Oneida  County,  Dec.  7, 1888,  was  not  served  upon 
said  corporation  or  its  officers  before  the  delivery  of  the  hay  referred 
to  in  the  petition  herein. 

15th.  That  the  Utica  and  Mohawk  Railroad  Company  did  not  wil- 
fully or  knowingly  violate  said  injunction  order  and  that  said  cor- 
poration and  its  officers  did  not  aid  or  abet  the  defendant,  Emery  S. 
Pugh,  or  any  other  person  in  violating  the  same  by  receiving  from 
the  farm  of  the  plaintiff,  in  the  town  of  Frankfort,  Herkimer  County, 
N.  v.,  on  the  22d  and  24th  days  of  December,  \888,  a  quantity  of  hay 
in  violation  of  said  injunction  order. 

i6th.   That  no  notice  was  given  to  the  Utica  and  Mohawk  Railroad' 

280  Volume  5. 


6228.  CONTEMPT.  6228. 

Company  or  its  officers  by  the  plaintiff  or  her  attorneys  of  the  injunc- 
tion order  in  question  until  about  10  a.  m.  on  the  2Jtth  day  of  Decem- 
ber, iS8S. 

I  find  as  conclusions  of  law: 

I  St.  That  as  to  said  Michael  Leary  the  order  to  show  cause  granted 
by  Hon.  M.  H.  Merwin,  J.  S.  C,  dated  Dec.  31,  iS88,  why  said 
Michael  Leary  should  not  be  punished  for  contempt,  offenses  and  mis- 
conduct should  be  dismissed. 

2d.  That  as  to  the  Utica  and  Mohaivk  Railroad  Company,  the  order 
to  show  cause  granted  by  Hon.  M.  H.  Merwin,  J.  S.  C,  dated  Dec. 
31,  iSS8,  why  said  corporation  the  Utica  and  Mohawk  Railroad  Com- 
pany should  not  be  punished  for  contempt,  offenses  and  misconduct 
should  be  dismissed, 

3d.  That  the  defendant  Emery  S.  Pugh  and  his  father,  Stephen  J. 
Pugh,  are  guilty  of  contempt  by  entering  into  a  plan  to  evade  said 
injunction  order  when  cognizant  of  its  provisions  by  removing  the 
hay  referred  to  in  said  injunction  order,  and  they  and  each  of  them 
should  be  punished  for  his  misconduct  in  violating  said  injunction 
order. 

4th.  At  the  time  of  the  service  of  the  injunction  order  and  also 
on  Dec.  22d  und  2Jf.th,  1888,  the  plaintiff  was  damaged  by  the  fracture 
of  defendant's  part  to  draw  back  manure  equivalent  in  amount  to  the 
hay  and  straw  then  drawn  away,  this  damage  had  since  been  reme- 
died by  defendant  drawing  manure  on  the  place  from  Dec.  15th,  1S88, 
and  through  Ped.  and  Mar.  i889,  and  inasmuch  as  the  defendant  be- 
fore the  expiration  of  such  lease  fully  complied  with  all  its  provisions 
except  keeping  the  ten  cows,  and  drew  back  upon  said  premises  an 
amount  of  manure  equivalent  to  the  hay  and  straw  drawn  away  by 
him  the  object  of  this  action  is  substantially  defeated  and  the  plain- 
tiff cannot  be  said  to  have  suffered  any  damages  from  the  breach  of 
any  covenant  in  the  lease  or  by  removal  of  the  hay. 

Charles  G.  Irish,  Referee. 

Fees,  %100,  Paid  by  Plff. 

Utica,  N.   v.,  May  10,  iS89. 

6.  Order  of  Conviction.^ 

1.  For  other  orders  of  conviction  see  as  For  failure  to  obey  judgment.    Ex/>. 

follows:  Henshaw,  73  Cal.  494. 

For  refusal  to  pay  money  to  receiver.  For  failure  to  pay  money  to  assignee. 

Wilson    V.    Roach,    4   Cal.    362;     Cart-  In  re  Burt,  56  Minn.  399. 

Wright's  Case,  114  Mass.  230.  Of  oflBcer  for  failure  to  return  papers. 

Failure  to  obey  order  in  supplemen-  Ex  p.  Summers,   5  Ired.  L.  (27  N.  Car.) 

tary  proceedings.     Sickels  v.  Hanley,4  150. 

Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.)  231.  Order  of  conviction  of   contempt  in 

For  interference  with  and  attempt  to  disobeying  an  injunction.      Carroll  v. 

bribe  witnesses.     Savin,  Petitioner,  131  New  York,  etc.,  R.  Co.,  i  Duer  (N.  Y.) 

U.  S.  267.  571. 

For    putting    fictitious     sureties     in  Requisites  of  Order,  —  It  has  been  held 

undertaking    to    discharge  mechanic's  that    the    judgment   in   a    proceeding 

lien.     McAveney   v.    Brush,    3   N.    Y.  against  a  party  for  contempt  need  only 

Ann.  Cas.  148.  express  on  its  face  that  it  was  a  con- 

For  failure  to  surrender  note  under  tempt  generally,  and  that  the  specific 

order  of  court.     Thompson   v.   Onley,  nature  of  the  contempt  need  not  be  set 

96  N,  Car.  9.  out.     Ex  p.  Summers,  5  Ired.  L.  (27  N. 

881  Volume  5. 


6228.  CONTEMPT.  6229. 

\       a.  For  Contempt  in  Facie  CuriSB.* 
Form  No.  6228. 

(Precedent  in  Harrison  v.  State,  35  Ark.  459.)' 
State  of  Arkansas  ^ 

Joseph  G.  Harrison,  William  N.  May,  \  Contempt. 
/.  P.  Byers,  H.   IV.  Walker.  J 

Now,  on  this  day  the  court  doth  assess  a  fine  oi  fifty  dollars  each 
against  Joseph  G.  Harrison,  William  IV.  May,  J.  P.  Byers  and  H. 
W.  Walker,  for  a  contempt,  committed  as  follows,  viz.:  The  said 
Joseph  G.  Harrison,  William  N.  May,  J.  P.  Byers  and  H.  W.  Walker, 
being  attorneys  at  law,  employed  on  the  side  of  the  defense  in  a 
cause  pending  in  this  court,  wherein  the  State  of  Arka?isas  is  plaintiff 
and  6".  L.  Tucker,  indicted  by  the  name  of  Clint.  Tucker,  is  defend- 
ant, and  the  said  attorneys,  on  filing  a  motion  for  a  new  trial  in  said 
cause,  stated  as  one  of  the  grounds  of  said  motion  as  follows,  to  wit: 
"No.  23.  Because  the  judge  of  this  court,  in  which  the  prosecution 
was  had  herein,  was  so  prejudiced  against  this  defendant  that  he  did 
not  give  him  a  fair  and  impartial  trial;"  and  afterwards  subscribed 
to  an  affidavit  reaffirming  said  statement,  which  the  court  doth  con- 
sider a  contempt,  and  doth  assess  the  fines  above  stated. 

It  is,  therefore,  considered  and  adjudged  by  the  court,  that  the 
State  of  Arkansas  have  and  recover  of  and  from  the  ^saA  Joseph  G. 
Harrison,  William  JV.  May,  J.  P.  Byers  and  H.  W.  Walker  the  sum 
oi  fifty  dollars  each,  as  for  fine,  and  all  her  costs  in  this  behalf  laid 
out  and  expended,  and  have  execution  therefor. 

Form  No.  6229. 

(Precedent  in  Pickett  v.  Wallace,  57  Cal.  555.)* 

In  the  Supreme  Court  of  the  State  of  California. 

Thursday,  August  6th,  i87^. 

Court  met  at  eleven  o'clock  pursuant  to  adjournment.  Present, 
Hon.  W.  T.  Wallace,  C.  J.,/.  B.  Crockett,  J.,  A.  C  Niles,].,  E.  W. 
McKinstry,  J.      Grant  I.  Taggart,  Clerk.      Thos.  F.  O'Connor,  Bailiff. 

Car.)  149;  State  v.   Miller,   23  W.   Va.  the  order  given  in  the  text  was  held  bad 

801.     But  in  other  cases  the  contrary  on  demurrer,  and  this  judgment   was 

view  has  been  held.    People  v.  Turner  affirmed  on  appeal. 

I  Cal.  152;  Albany  City  Bank  t/.  Scher-  Precedent.  —  In  Ex  p.  Stice,  70  Cal. 

merhorn,  9  Paige  (N.  Y.)  372.  52,  it  was  held  that  refusal  to  be  sworn 

1.  See  forms  in  Ex  p.  Stice,  70  Cal.  as  a  witness  in  a  cause  on  trialisacon- 
57;  People  V.  Kelly,  24  N.  Y.  75;  State  tempt  of  court  both  under  the  provisions 
V.  Sachs,  2  Wash.  373.  of  Cal.  Code  Civ.   Proc,  §  1209,  subs. 

2.  In  this  case  plaintiffs  sued  out  a  10,  and  also  at  common  law,  and  that 
writ  of  certiorari  to  the  circuit  court  of  the  court  had  full  power  to  adjudge  the 
Yell  county,  to  bring  up  the  record  of  contempt  and  to  fix  the  penalty  there- 
proceedings  and  quash  a  judgment  ren-  for.  The  order  was  as  follows: 
dered  against  them  for  contempt,  but  "In  ih&  Superior  Court  oi  San  Benito 
they  were  held  to  be  plainly  in  con-  County. 
tempt  of  court,  and  the  judgment  was  State  0/  California 
affirmed.  v. 

3.  A  complaint  claiming  damages  for  f.  F.  Prewett. 
the  imprisonment  in  accordance  with  On  x.\n%  first  day  of  March,  iS<P<J,  at 

383  Volume  5- 


6229.  CONTEMPT.  6229. 

The  Court  having  met  pursuant  to  adjournment,  the  Judges  pro- 
ceeded to  their  respective  seats  upon  the  Bench.  Charles  E.  Pickett^ 
being  then  present  in  the  court-room,  suddenly  obtruded  himself 
upon  the  Bench,  and  into  the  chair  of  Crockett,  J.,  and  announced 
that  he  had  as  good  a  right  to  occupy  a  seat  upon  the  Bench  of  said 
Court  as  the  said  Crockett  had,  and  the  said  Pickett  thereupon,  being 
commanded  by  the  Chief  Justice  to  leave  the  said  ch^ir,  peremptorily 
refused  to  do  so,  and  was  subsequently  removed  therefrom  by  actual 
force. 

Whereupon  it  is  now  here  by  the  Court  adjudged  that  the  said 
Charles  E.  Pickett  is  guilty  of  a  contempt  of  this  Court,  committed  in 
its  immediate  presence,  by  unlawfully  interfering  with  its  proceed- 
ings in  manner  as  aforesaid,  and  by  disorderly,  contemptuous,  and 
insolent  behavior  towards  the  Court  and  the  Judges  thereof  then 
present  as  aforesaid,  it  is  now  here  ordered  and  adjudged  by  the 
Court,  that  for  such,  his  contempt  aforesaid,  he,  the  said  Charles  E. 
Pickett,  shall  suffer  imprisonment  by  close  confinement  in  the  com- 
mon jail  of  the  city  and  county  of  San  Francisco  for  the  period  ol  five 
days,  and  further,  that  he  pay  a  fine  oi  five  hundred  dollars,  and  that 
if  the  said  fine  be  not  paid  at  the  expiration  of  five  days'  imprison- 
ment, then  it  is  further  ordered,  adjudged,  and  decreed,  that  the  said 
Charles  E.  Pickett  be  imprisoned  and  kept  in  close  confinement  in 
said  common  jail  until  the  said  fine  be  paid,  provided  that  such 
imprisonment  for  the  nonpayment  of  said  fine  may  extend  to,  but 
shall  not  exceed,  one  day  for  every  two  dollars  of  the  fine  due  from 
him,  the  said  Charles  E.  Pickett,  and  that  a  warrant  and  writ  of 
execution  do  forthwith  issue,  directed  to  the  sheriff  of  the  city  and 
county  of  San  Francisco,  commanding  him  to  carry  the  aforesaid 
judgment  into  effect. 

And  the  said  Charles  E.  Pickett  being  still  present,  and  having 
been  adjudged  guilty  of  the  contempt  of  the  Court  aforesaid,  in  man- 
ner and  form  aforesaid,  and  the  judgment  of  the  Court  in  that  behalf 
having  been  then  and  there  announced  in  open  Court,  he,  the  said 
Charles  E.  Pickett,  then  and  there  insolently  and  contemptuously 
used  and  addressed  to  the  Court  then  and  there,  being  in  open 
session,  the  following  language  in  reference  to  the  said  judgment,  to 
wit,  "I  defy  your  authority." 

Whereupon  and  before  committing  the  said  Charles  E.  Pickett  into 
the  custody  of  the  sheriff,  it  is  now  here  adjudged  that  the  said 

the  hour  of  two  o'clock/,  m.,  the  above  Richmond  Slice  ^2,y  2,  ^t\&  oi  five  hundred 

named  cause  was  upon  trial  in  the  above  dollars  i%soo),  and  that  in  default  of  the 

entitled  court,  and  Richmond  Stice  was  payment  thereof  he  be  imprisoned  in 

called  as  a  witness  for  the  people,  and  the  county   jail   of   San  Benito  county 

was   ordered   by  the   said  court  to  be  until  said  fine  be  fully  satisfied,  in  the 

sworn  as  a  witness,  and  thereupon,  in  proportion  of  one  day's  imprisonment 

the  immediate  view  and  presence  of  the  for  every  dollar  of  the  fine;  and  on  the 

said  court,  he  did  refuse  to  be  so  sworn  payment  of  such  portion  of  said  fine  as 

as  a  witness.  shall  not  have  been  satisfied  by  impris- 

Whereupon    it  is  adjudged  that  the  onment  at  the  rale  above   prescribed, 

said  Richmond  Stice  is  guilty  of  a  con-  that  the  defendant  be  discharged  from 

tempt  of  court  in  refusing  to  be  so  sworn  custody. 

as  a  witness,  and  as  a  penalty  thereof  James  F.  Breen,  Superior  Judge." 

it  is  ordered,  adjudged  and  decreed  that 

283  Volume  5. 


6230.  CONTEMPT.  6230. 

Charles  E.  Pickett  is  guilt)'  of  a  further  contempt  of  this  Court  com- 
mitted in  its  immediate  presence,  by  reason  of  the  disorderly,  con- 
temptuous, and  insolent  behavior  and  language  towards  the  Court 
and  the  judges  thereof,  as  last  aforesaid,  and  that  for  such,  his  con- 
tempt last  aforesaid,  he  shall  suffer  imprisonment  by  close  confine- 
ment in  the  said  common  jail  for  the  further  period  oi  five  days,  and 
that  he  pay  a  fine  in  the  further  sum  oi  five  /lundred  dollars. 

It  is  therefore  ordered  that  the  said  Charles  E.  Pickett  be  com- 
mitted into  the  custody  of  the  sheriff  of  the  city  and  county  of  San 
Francisco,  to  be  by  him  imprisoned  and  kept  in  close  confinement  in 
the  common  jail  of  said  city  and  county  of  San  Francisco  for  the  last- 
mentioned  space  oi  five  days,  and  until  he  pay  the  said  last-mentioned 
sum  oi  five  hundred  dollars,  and  that  if  said  last-mentioned  fine  be  not 
paid  at  the  expiration  of  said  last-named  five  days'  imprisonment, 
then  and  in  that  case  it  is  ordered  that  the  said  Charles  E.  Pickett  be 
further  imprisoned  until  said  last-mentioned  fine  be  paid,  provided 
such  imprisonment  shall  not  exceed  one  day  for  each  two  dollars  of 
said  fine  last  aforesaid  adjudged. 

The  imprisonment  for  the  contempt  last  aforesaid  to  commence  at 
the  expiration  of  the  imprisonment  for  the  contempt  adjudged  firstly 
aforesaid. 

Form  No.  6230. 
(Precedent  in  In  re  Wood,  82  Mich.  78.) 

At  a  session  of  the  Circuit  Court  for  the  county  of  Wayne,  con- 
vened and  held  at  the  Circuit  Court  room,  in  the  city  of  Detroit,  on 
the  twenty-ninth  day  of  May,  in  the  year  one  thousand  eight  hundred 
and  ninety. 

In  the  Matter  of  Emery  T.  Wood,  for  Contempt  of  Court. 

Present:  Hons.  H.  N.  Brevoort,  Geo.  Gartner.,  Geo.  S.  Hosmer^  C. 
J.  Reilly,  Circuit  Judges. 

Before  Judge  ^r«?t;^<7r/. 

It  appearing  to  the  court  now  here,  from  its  own  immediate  view 
thereof,  that  Emery  T.  Wood  hath  been  and  is  guilty  of  disorderly 
behavior  in  using  language  disrespectful  to  the  court  during  its  sitting, 
and  in  the  immediate  view  and  presence  of  the  said  court,  and  directly 
tending  to  interrupt  its  proceedings,  that  is  to  say,  in  using  the  fol- 
lowing language: 

"With  all  due  respect  to  your  honor,  I  must  say  that  when  your 
honor  chastises  me  from  the  bench,  as  your  honor  does  now,  and 
when  you  chastise  me  as  you  did  when  the  pleadings  came  up,  and 
when  the  public  press  sends  out  a  report,  and  sets  your  honor  upon 
the  pedestal,  and  says  I  do  not  know  how  to  draw  a  declaration,  your 
honor  has  overstepped  the  mark,  and  not  accorded  me  the  justice  I 
am  entitled  to  in  this  court.  It  seems  to  me,  while  I  cannot  refrain 
from  the  feeling  which  takes  possession  of  me  while  I  am  to  be  chas- 
tised, I  must  say  that  I  have  not  been  treated  fairly  in  this  case,  and 
I  have  not  been  treated  fairly  in  one  or  two  other  cases  before  your 
honor.  Why  it  is,  I  cannot  say.  I  am  not  aware  that  I  have  ever 
had  any  difficulty  that  your  honor  should  carry  into  a  case  I  am  try- 
ing, and  affect  my  client  as  well  as  myself.     I  say  there  are  things 

284  Volume  5. 


[•  ss. 


6231.  CONTEMPT.  6232. 

that  are  discretionary  with  the  court;  but  if  the  court  abuses  his  dis- 
cretion, I  have  my  remedy." 

Wherefore,  it  is  adjudged  by  the  said  court  now  here  that  the  said 
E.  T.  Wood  is  guilty  of  a  criminal  contempt  of  the  said  court;  and  it 
is  further  ordered  and  adjudged  that  the  said  Emery  T.  Wood  do  pay 
to  the  people  of  the  State  a  fine  of  twenty-Jive  dollars  within  twenty- 
four  hours,  or  that  in  default  thereof,  he  be  committed  to  the  county 
jail  for  the  period  oi  Jive  days. 

[H.  N.  Brevoort,  Circuit  Judge.J^ 

Form  No.  6231. 

(Minn.  Stat.  (1894),  §  5092.)' 
State  of  Minnesota, 
County  of  Ramsey. 

The  State  of  Minnesota. 

Whereas,  on  the  sixth  day  oi  January,  a.  d.  i8P^,  while  we,  the 
undersigned,  one  of  the  justices  of  the  peace  of  the  said  county,  was 
engaged  in  the  trial  of  a  cause  between  y^^/^^  Doe,  plaintiff,  and 
Richard  Roe,  defendant,  in  said  county,  according  to  the  statute  in 
such  case  made  and  provided,  Samuel  Short,  of  the  said  county,  did 
interrupt  the  said  proceedings,  and  impair  the  respect  due  to  the 
authority  of  the  undersigned,  by  (^Here  describe  the  cause  particularly), 
and  whereas  the  said  Samuel  Short  was  thereupon  required  by  the 
undersigned  to  answer  for  the  said  contempt,  and  show  cause  why 
he  should  not  be  convicted  thereof;  and  whereas  the  said  Samuel 
Short  did  not  show  any  cause  against  the  said  charge:  Be  it  therefore 
remembered,  that  the  said  Samuel  Short  is  adjudged  to  be  guilty;  and 
is  convicted,  of  a  criminal  contempt  aforesaid,  before  the  under- 
signed, and  is  adjudged  by  the  undersigned  to  pay  a  fine  of  ten 
dollars,  or  to  be  imprisoned  in  the  common  jail  of  said  county  for 
the  term  of  two  days,  or  until  he  is  discharged  from  imprisonment 
according  to  law. 

Dated  this  sixth  day  oi  January,  a.d.  \W8. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6232. 

(I  N.  Car.  Code  (1883),  P-  365,  No.  48.) 

Whereas,  on  the  sixth  day  oi  January,  i898,  while  engaged  in  the 
trial  of  an  action  (^or  other  judicial  act)  in  which  John  Doe  was  plain- 
tiff and  Richard  Roe  was  defendant,  at  my  office  in  Nash  county, 
Samuel  Short  did  wilfully  and  contemptuously  interrupt  me,  and 
did  then  and  there  conduct  himself  so  disorderly  and  insolently 
towards  me,  and  by  making  a  loud  noise  did  disturb  the  proceedings 
on  said  trial  {or  other  judicial  act)  and  impair  the  respect  due  to  the 
authority  of  the  law ;  and  on  being  ordered  by  me  to  cease  making  such 
noise  and  disturbance,  the  said  Samuel  Short  refused  so  to  do,  but  on 
the  contrary,  did  publicly  declare  and  with  loud  voice  (^State  whatever 

1.  The  words  enclosed  by  [  ]  will  not        2.  The  same  form  is  set  out  in  Hill's 
be  found  in  the  reported  case,  but  have     Anno.  Stat.  Wash.  (1891),  §  1606. 
been  added  to  render  the  form  complete. 

285  Volume  5. 


6233.  CONTEMPT.  6234. 

offensive  words  were  usetf);  and  whereas  when  immediately  called  upon 
by  me  to  answer  for  the  said  contempt,  said  Samuel  Short  did  not 
make  any  defense  thereto,  nor  excuse  himself  therefrom;  the  said 
Samuel  Short  is  therefore  convicted  of  the  contempt  aforesaid,  and  is 
adjudged  to  pay  a  fine  oi  Jive  dollars  and  be  imprisoned  in  the  county 
jail  for  the  term  of  two  days,  and  until  he  pays  such  fine  or  is  duly 
discharged  from  imprisonment  according  to  law. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No,  6233. 
(Precedent  in  Com.  v.  Bell,  145  Pa.  St.  381.) 

Commonwealth   )  In    the    Court   0/   Quarter   Sessions    of   Lawrence 
V.  >-      County,  Pennsylvania. 

W.  D.   Wallace.  )  No.  8  September  Sessions  iWO. 

And  now,  December  17,  i890,  the  witnesses  Edwin  Shaffer,  alias 
Edivard  Shaffer,  Thomas  J.  Do^vning  and  John  R.  Tate,  are  each 
sentenced  to  pay  a  fine  of  two  hundred  dollars  to  the  commonwealth, 
and  each  to  undergo  an  imprisonment  in  the  common  jail  in  and  for 
the  county  of  Laivrence,  until  the  tenth  day  of  March  next;  and  stand 
committed  to  the  custody  of  the  sheriff  for  the  purpose  of  carrying 
into  effect  this  sentence. 

By  the  Court. 

Form  No.  6234. 
(Precedent  in  Ex  p.  Terry,  128  U.  S.  297.)' 

In  the  Circuit  Court  of  the  United  States  of  America  for  the  Northern 
District  of  California. 
In  the  Matter  of  Contempt  oi  David  S.  Terry.     In  open  court. 
Whereas  on  this  5</day  of  September,  iB88,  in  open  court,  and  in 
the  presence  of  the  judges  thereof,  to  wit,  Hon.  Stephen  J.  Field,  Cir- 
cuit ]nst\ce.,  presiding;  Hon.  Lorenzo  Sawyer,  Circuit  ]udge,  and  Hon. 
George  M.  Sabin,  District  Judge,  during  the  session  of  said  court,  and 
while  said  court  was  engaged  in  its  regular  business,  hearing  and 

1.  In  this  case  the  petition  for  dis-  of  their  functions.     Without  it,  judicial 

charge    on    habeas    corpus    was    dis-  tribunals  would  be  at  the  mercy  of  the 

missed,  the  court  saying  in  part:  disorderly    and    violent,    who    respect 

"  It  is  a  settled  doctrine  in  the  juris-  neither  the  laws  enacted  for  the  vindi- 
prudence  both  of  England  and  of  this  cation  of  public  and  private  rights,  nor 
country,  never  supposed  to  be  in  con-  the  officers  charged  with  the  duty  of 
fiict  with  the  liberty  of  the  citizen,  that  adminstering  them.  To  say,  in  case  of 
for  direct  contempts  committed  in  the  a  contempt  such  as  is  recited  in  the 
face  of  the  court,  at  least  one  of  superior  order  below,  that  the  offender  was  ac- 
jurisdiction,  the  offender  may,  in  its  cused,  tried,  adjudged  to  be  guilty  and 
discretion,  be  instantly  apprehended  imprisoned  without  previous  notice 
and  immediately  imprisoned,  without  of  the  accusation  against  him  and 
trial  or  issue,  and  without  other  proof  without  an  opportunity  to  be  heard,  is 
than  its  actual  knowledge  of  what  oc-  nothing  more  than  an  argument  or 
curred,  and  according  to  an  unbroken  protest  against  investing  any  court, 
chain  of  authorities,  reaching  back  to  however  exalted,  or  however  extensive 
the  earliest  times,  such  power,  although  its  general  jurisdiction,  with  the  power 
arbitrary  in  its  nature  and  liable  to  of  proceeding  summarily,  without  fur- 
abuse,  is  absolutely  essential  to  the  ther  proof  or  trial,  for  direct  contempts 
protection  of  the  courts  in  the  discharge  committed  in  its  presence." 

286  Volume  5. 


6235.  CONTEMPT.  6235. 

determining  causes  pending  before  it,  one  Sarah  Althea  Terry  was 
guilty  of  misbehaving  in  the  presence  and  hearing  of  said  court, 

And  whereas,  said  court  thereupon  duly  and  lawfully  ordered  the 
United  States  marshal,  J.  C.  Franks^  who  was  then  present,  to  remove 
the  said  Sarah  Althea  Terry  from  the  court-room; 

And  whereas  the  said  United  States  marshal  then  and  there 
attempted  to  enforce  said  order,  and  then  and  there  was  resisted  by 
one  David  S.  Terry,  an  attorney  of  this  court,  who,  while  the  mar- 
shal was  attempting  to  execute  said  order  in  the  presence  of  the  court, 
assaulted  the  said  United  States  marshal,  and  then  and  there  beat 
him,  the  said  marshal,  and  then  and  there  wrongfully  and  unlawfully 
assaulted  said  marshal  with  a  deadly  weapon,  with  intent  to  obstruct 
the  administration  of  justice,  and  to  resist  such  United  States  mar- 
shal and  the  execution  of  the  said  order; 

And  whereas  the  said  David  S.  Terry  was  guilty  of  a  contempt  of 
this  court  by  misbehavior  in  its  presence  and  by  a  forcible  resistance 
in  the  presence  of  the  court  to  a  lawful  order  thereof,  in  the  manner 
aforesaid; 

Now,  therefore,  be  it  ordered  and  adjudged  by  this  court.  That 
the  said  David  S.  Terry,  by  reason  of  said  acts,  was,  and  is,  guilty  of 
contempt  of  the  authority  of  this  court,  committed  in  its  presence 
on  this  3d  day  of  September,  iS88; 

And  it  is  further  ordered,  That  the  said  David S.  Terry  be  punished 
for  said  contempt  by  imprisonment  for  the  term  of  six  months; 

And  it  is  further  ordered.  That  this  judgment  be  executed  by 
imprisonment  of  the  said  David  S.  Terry  in  the  county  jail  of  the 
county  of  Alameda,  in  the  State  of  California,  until  the  further  order 
of  this  court,  but  not  to  exceed  said  term  of  six  months. 

And  it  is  further  ordered.  That  a  certified  copy  of  this  order,  under 
the  seal  of  the  court,  be  process  and  warrant  for  executing  this  order. 

b.  For  Contemptuous  Publication. 

Form  No.  6235. 

(Precedent  in  State  v.  Judge,  45  La.  Ann.  1255.) 

Civil  District  Court  for  the  Parish  of  Orleans. 
Tuesday,  the  21st  day  of  March,   iS93.     Present,  the  Hon.  Francis 
A.  Monroe,  Judge. 
Peter  Fabacher,      ) 

vs.  [■  No.  35,5Jfi. 

Bryant  or*  Mathers.  ) 

In  the  matter  of  the  rule  herein  taken  upon  the  Times- Democrat 
Publishing  Company,  through  its  manager,  Page  M.  Baker,  and  its 
president,  Ashton  Phelps,  to  show  cause  why  said  manager  and  presi- 
dent should  not  disclose  to  the  court  the  party  at  whose  instance  a 
certain  article  which  appeared  in  said  Times-Democrat  newspaper  on 
Sunday,  March  19,  iS93,  concerning  the  case  in  which  said  rule  is 
taken  and  which  is  now  on  trial  before  a  jury  in  this  court,  was  pub- 
lished and  from  whom  the  information  contained  in  said  article  was 
obtained,  and  whether  said  article  was  paid  for,  and  if  so  by  whom, 

287  Volume  5. 


6236.  CONTEMPT.  6236. 

or  in  default  thereof  why  they,  the  defendants  in  rule,  should  not 
stand  committed  for  contempt  of  this  court;  said  defendants  having 
appeared  in  person  and  through  their  counsel,  and  having  made  the 
disclosures  asked  for  in  said  rule. 

And  the  court  having  heard  evidence  and  argument  and  being 
satisfied  therefrom  that  said  publication  was  the  voluntary  act  of 
said  Times- Democrat  Publishing  Company^  for  which  said  company 
and  its  officers  are  alone  responsible,  and  the  question  being  then 
submitted  to  the  court  by  the  counsel  for  the  plaintifif  and  for  the 
defendants  respectively  whether  said  company  was  guilty  of  con- 
tempt of  court  in  publishing  said  article,  and  the  court  finding  the 
law  and  the  evidence  to  sustain  the  affirmative  of  this  proposition 
and  for  the  reasons  orally  assigned  in  open  court,  it  is  ordered  that 
the  Times-Democrat  Publishing  Company  and  Page  M.  Baker,  manager 
of  said  company,  be  adjudged  guilty  of  contempt  of  the  authority  of 
this  court  in  authorizing,  publishing  and  circulating  in  a  newspaper 
published  and  circulated  within  the  jurisdiction  of  this  court  an 
article  the  tendency  and  effect  of  which  is  necessarily  to  influence 
and  forestall  public  opinion  and  the  verdict  of  the  jury  on  the  case 
now  being  tried. 

And  the  court  reserves  its  decision  as  to  the  penalty  to  be  imposed 
for  said  contempt. 

e.  For  Failure  to  Obey. 

(1)  Decree  for  Payment  of  Alimony. 

Form  No.  6236.' 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  Supreme  Court  chambers  in  the  City  Hall,  in  the  city  of 
Albany^  and  county  of  Albany,  on  the  twenty-seventh  day  of  August^ 
iS78. 

Present:     Hon.  Theodore  R.  Westbrook,  Justice. 

Cornelia  Park 

agt. 

Richard  H.Park. 

A  writ  of  attachment  having  heretofore  issued  out  of  this  court 
against  the  defendant  Richard  H.  Park,  for  alleged  contempt  in  dis- 
obeying the  mandate  of  the  court,  contained  in  the  decree  herein, 
granted  April  2Jfth,  1S68,  requiring  the  said  defendant  to  give  securi- 
ty for  the  payment  of  the  allowance  therein  granted  to  the  plaintiff, 
which  writ  was  directed  to  the  Sheriff  of  the  City  and  County  of  New 
York  and  returnable  on  the  thirtieth  day  of  April,  iS78,  and  the  said 
Sheriff  having  returned  that  he  had  attached  the  body  of  the  said 

1.  This   order    is    copied    from    the  and    the    statutory     provision    (Laws 

records  in  Park  v.  Park,  80  N.  Y.  156.  (1847),  c.  390,  §  2),  prohibiting  impris- 

The  defendant  claimed  that  the  attach-  onment    for   contempt    in    not   paying 

ment  should  be  vacated  because  it  was  costs,  had  no  application   to  this  case, 

based  on  his  refusal  to  pay  the  costs  of  For  conditional  order  that  defendant 

the  suit.      This  claim  was   untenable,  be  committed  unless  money  is  paid  see 

as  the  attachment  was  issued  for  a  dis-  Hurd  v.  Hurd,  63  Minn.  443. 
obedience  of    the  order  of   the  court, 

288  Volume  5. 


6236.  CONTEMPT.  6236. 

Richard  H.  Park,  and  let  him  to  bail  in  the  sum  of  three  thousand  Ao\- 
lars,  as  directed  in  said  writ  and  by  the  indorsement  of  the  clerk 
thereon ;  and  the  said  Richard  H.  Park  having  appeared  before  the 
court  on  said  thirtieth  day  of  April,  accompanied  by  counsel,  and 
interrogatories  having  been  filed,  specifying  the  facts  and  circum- 
stances alleged  against  the  defendant,  and  a  copy  of  the  same  having 
been  served  on  the  said  defendant,  and  the  said  defendant  having 
interposed  answers  thereto  on  oath,  and  also  made  and  presented 
his  affidavit  for  the  purpose  of  purging  himself  of  contempt;  and  it 
having  been  referred  to  A.  J.  Taylor,  Esquire,  to  take  such  proofs 
as  might  be  offered  by  either  party  touching  the  said  defendant's 
ability  to  pay  said  allowance  or  to  give  security  therefor,  and  the 
said  defendant  having  on  the  thirtieth  day  of  July,  i878,  made  a 
motion  to  vacate  said  attachment,  and  the  court  having  refused  to 
entertain  said  motion  until  the  coming  in  of  the  referee's  report,  and 
the  hearing  of  the  parties  on  the  attachment  proceedings,  which  was 
set  down  for  August  27,  i875;  and  testimony  having  been  taken 
before  said  referee  on  the  part  of  both  plaintiff  and  defendant,  and 
the  referee  having  duly  reported  the  same  to  the  court,  and  the  said 
hearing  of  the  contempt  proceedings,  under  the  attachment  and  the 
motion  to  vacate  the  attachment,  having  been  brought  on  before  the 
court  on  said  twenty-seventh  day  of  August,  iS78,  on  the  following 
papers,  viz: 

The  affidavits  of  Cornelia  Brainard,  dated  November  22,  i877;  of 
Samuel  T.  Smith,  dated  November  26,  1877,  and  July  27,  i878;  the 
interrogatories  on  file  and  the  decree  in  this  action  on  the  part  of 
the  plaintiff;  and  the  affidavits  of  R.  H.  Park,  dated  April 30,  \%78\ 
and  E.  C.  Ripley,  dated  April 27,  i?>78,  and  April 24,  iS78;  also  of  R.  H. 
Park,  dated  July  8,  iS78,  and  of  E.  C.  Ripley  of  same  date,  and  the 
sworn  answers  to  the  interrogatories  filed  herein,  on  the  part  of  the 
defendant,  together  with  the  report  of  the  referee,  A.  J.  Taylor,  Esq., 
and  testimony  taken  before  him,  and  all  other  papers  on  file  herein; 
and  Samuel  Tro.  Smith,  Esq.,  of  counsel  for  plaintiff,  having  been 
heard  in  favor  of  the  attachment  and  in  opposition  to  the  motion  to 
vacate,  and  Edward  C.  Ripley,  Esquire,  of  counsel  for  defendant,  in 
favor  of  said  motion  and  in  opposition  to  said  attachment,  and  after 
due  deliberation,  it  appearing  to  the  court  from  such  affidavits, 
report,  answers  and  proofs,  that  Richard  H.  Park,  the  said  defend- 
ant, is  guilty  of  the  contempt  alleged  against  him,  and  that  such 
misconduct  was  calculated  to  and  did  defeat,  impair,  impede  or  preju- 
dice the  rights  of  the  above  named  plaintiff,  Cornelia  Park. 

Now,  on  motion  of  Sam.  Tro.  Smith,  attorney  for  plaintiff,  it  is 
ordered: 

I.  That  the  motion  to  vacate  the  attachment  be,  and  the  same  is 
hereby,  denied,  with  ten  dollars  costs  of  opposing  said  motion  to  the 
plaintiff. 

II.  That  said  Richard  H.  Park  pay  to  the  said  plaintiff  her  costs 
and  expenses  in  these  proceedings,  amounting  to  the  sum  of  seventy 
dollars  zxidi  forty-four  cents,  w^hich  amount  has  been  found  and  taxed 
by  the  court  on  proper  proof  thereof  presented  by  the  plaintiff,  and 
which  is  hereby  imposed  as  a  fine  for  his  misconduct. 

5  E.  of  F.  P.  —  19.  289  Volume  5. 


6237.  CONTEMPT.  6237. 

III.  That  said  R.  H.  Park  give  security  to  be  approved  by  one  of 
the  justices  of  this  court,  in  the  sum  of  three  thousand  dollars,  to  the 
cleric  of  the  city  and  county  of  Albany  for  the  payment  to  the  plain- 
tiff of  the  sum  of  three  hundred  dollars  per  annum,  in  semiannual 
payments,  for  the  support  and  maintenance  of  the  plaintiff,  to  be 
paid:  one  hundred  and  fifty  dollars  on  the  twenty-fourth  day  of  Aprily 
and  one  hundred  and  fifty  dollars  on  the  twenty-fourth  day  of  October, 
in  each  and  every  year,  during  the  natural  life  of  the  said  plaintiff, 
or  till  she  shall  again  marry. 

IV.  That  the  said  defendant,  Richard  H.  Park,  be  and  he  is  hereby 
directed  to  stand  committed  to  the  common  jail  of  the  county  of 
Albany,  there  to  remain  charged  upon  said  contempt  until  such 
security  shall  be  given  and  approved,  and  such  costs  and  expenses 
shall  be  fully  paid,  unless  he  shall  sooner  be  discharged  by  the  court; 
and  that  a  warrant  issue  to  carry  this  order  into  effect. 

V.  That  the  bail  bond  given  in  these  proceedings  remain  in  force 
until  the  defendant  Richard  If.  Park  shall  surrender  himself  under 
the  warrant  to  be  issued  hereunder. 

VI.  That  all  proceedings  herein  on  the  part  of  the  plaintiff  be 
stayed  for  thirty  days  from  the  service  of  a  certified  copy  of  this  order 
on  defendant's  attorney,  on  the  defendant's  executing  and  filing 
with  the  clerk  of  Albany  county,  a  proper  and  sufficient  undertaking 
in  the  sum  of  one  thousand  dollars,  that  the  appellant  will  pay  all  costs 
and  expenses  awarded  against  him  in  this  order,  in  case  the  same 
shall  be  affirmed  or  the  appeal  dismissed;  together  with  all  costs 
and  damages  which  may  be  awarded  against  him  on  said  appeal. 

Enter:     T.  R.  W.,  J.  S.  C. 

(2)  Injunction.! 

Form  No.  6237.' 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  Court-house  in 
the  City  of  Brooklyn,  in  the  County  of  Kings,  on  tht  fourteenth  day  of 
January,  i882. 

Present:  Hon.  Jasper  W.  Gilbert,  Justice. 
The  People  of  the  State   of  New^ 

York,  on  the  relation  of  John  D. 

Negus, 

against 
William    Dwyer   and  others,    re- 
spondents. 

A  writ  of  attachment  having  heretofore  issued  out  of  this  court 
against  the  said  above  named  person  and  others,  charging  him  and 
them  and  each  of  them  with  a  contempt  of  court,  in  wilfully  violating 
an  order  of  injunction  granted  by  Hon.  Henry  A.  Moore,  County  Judge 
of  Kings  County,  on  the  twenty-sixth  day  of  December,  188 1,  in  a  cer- 

1.  See  also  other  orders  of  convic-  Russel.  33  Wis.  193;  /«  re  Tyler,  149 
tions   for   failure   to   obey  injunctions     U.  S.  164. 

in  Koester  v.  State,  36  Kan.  27;  Lati-  2.  This  order  is  copied  from  the 
mer  v.  Barmore,  8t  Mich.  592;  Howe  record  in  the  case  of  People  v.  Dwyer, 
V.   Willard,   40  Vt.    654;    Poertner   v.     90  N.  Y.  402. 

290  Volume  5. 


6238.  CONTEMPT.  6238. 

tain  action  then  pending  in  the  Supreme  Court  of  the  State  of  Neiu 
York,  County  of  Kings,  wherein  John  D.  Negus  is  plaintiff,  and  The 
City  of  Brooklyn,  The  Brooklyn  Elevated  Railway  Company  and  others 
are  defendants,  which  attachment  was  directed  to  the  Sheriff  of  the 
County  oi  Kifigs  and  returnable  on  the  ninth  day  oi  January,  i882, 
and  the  said  Sheriff  having  made  return  to  the  said  attachment  that 
he  had  attached  the  body  of  the  said  above  named  William  Dwyer, 
and  has  taken  a  bond  for  the  due  appearance  of  him  according  to 
the  exigency  of  said  attachment,  and  the  said  above  named  William 
Dwyer,  having  appeared  personally  before  said  court.  And  inter- 
rogatories specifying  the  facts  and  circumstances  alleged  against  him 
having  by  order  of  the  court  been  filed,  and  a  copy  of  the  same  having 
been  served  on  his  counsel  pursuant  to  said  order,  and  he  having 
been  required  to  answer  said  interrogatories,  and  having  answered 
the  same,  and  the  respondent  Richard  S.  Roberts,  being  examined 
in  open  court,  and  after  reading  the  affidavits  of  Theodore  D.  Dimon, 
Robert  Black  2t.nd  Harry  O.Jones,  and  a  copy  of  the  minutes  of  the 
meeting  of  the  Common  Council  held  on  December  31,  iS81,  and  after 
the  examination  of  Robert  Black  in  open  court,  and  filing  the  testimony 
so  taken  of  ^dixdi  Roberts  and  Black,  and  proceedings  having  been  duly 
adjourned  to  this  day.  And  after  hearing  Erastus  Cooke,  David 
Burnett  and  Hubert  G.  Hull,  Esqs.,  in  support  of  said  motion,  and 
Winchester  Britton,  Esq.,  and  Ward  cr"  Jencks,  counsel  for  the 
respondents. 

Now,  on  motion  of  Herbert  G.  Hull,  the  attorney  for  the  relator. 

It  is  now  here  considered  and  adjudged  that  the  said  William 
Dwyer  has  been  and  is  guilty  of  the  misconduct  and  contempt  alleged 
against  him,  and  has  been  and  is  guilty  of  a  wilful  disobedience  to  a 
lawful  mandate  of  this  Court,  to  wit,  in  wilfblly  violating  the  injunc- 
tion order  granted  by  Hon,  Henry  A.  Moore,  County  Judge  of  Kings 
County,  on  the  twenty-sixth  day  of  December,  iS81,  in  the  aforesaid 
action. 

And  it  is  further  ordered  and  adjudged,  that  the  said  William 
Dwyer  for  his  said  misconduct  be  imprisoned  in  the  common  jail  of 
the  County  oi  Kings,  for  the  period  of  thirty  da.ys;  and  it  is  further 

Ordered  and  adjudged  that  a  fine  of  two  hundred  and  fifty  {250) 
dollars  be  and  the  same  is  hereby  imposed  upon  him  for  his  said 
misconduct,  and  that  he  stand  committed  to  the  common  jail  of  the 
County  oi  Kings,  there  to  remain  charged  upon  said  contempt,  until 
his  fine  imposed  as  aforesaid  shall  be  fully  paid,  not  exceeding  thirty 
days,  unless  he  shall  be  sooner  discharged  by  the  further  order  of  the 
court,  and  that  a  warrant  issue  to  carry  this  order  into  effect,  and 
that  such  fine  be  paid  to  the  Clerk  of  this  Court  and  to  be  disposed 
of  according  to  law. 

A  copy.  Chas.  B.  Elliott^  Clerk. 

Form  No.  6238. 

(Precedent  in  Stimpson  v.  Putnam,  41  Vt.  243.) 

J.  C.  Stimpson  et  al.  )  Court  of  Chancery, 

V.  \  Orleans  County. 

A.  W.  Putnam  et  al.  )  Decetnber  Term,  iS67. 

291  Volume  5. 


6239.  CONTEMPT.  6239. 

This  cause  having  been  fully  heard,  so  far  as  the  complaint  for  the 
contempt  is  concerned,  upon  the  proofs,  allegations  of  the  parties, 
and  the  argument  of  their  respective  solicitors,  and  having  been  duly 
considered  by  the  court,  it  is  adjudged  that  said  Alfred  W.  Putnam 
has  been  guilty  of  a  contempt  in  manner  and  forrri  as  alleged  in  the 
complaint  in  that  he  did  wilfully  violate  said  order  of  injunction  in 
said  complaint  referred  to  by  selling  and  removing,  or  causing  to  be 
removed,  into  the  province  or  dominion  of  Canada  and  beyond  the 
reach  of  the  process  of  this  court,  a  certain  steam-engine  and  elevator 
and  other  machinery  attached  and  connected  therewith,  included 
within  the  terms  of  said  injunction,  and  did  commit  other  waste  upon 
the  masonry  of  said  limekiln,  as  the  orators  have  complained  against 
him;  and  it  is  considered  that  the  damage  to  the  orators,  by  the  de- 
fendant's said  unlawful  act,  is  the  sum  of  eleven  hundred  a77d  seventy 
dollars  (%inO\  and  said  Alfred  W.  Putnam  is  hereby  ordered  and 
decreed  to  pay  forthwith  to  the  clerk  of  the  court  of  chancery  in  the 
county  of  Orleans,  for  the  orators,  said  sum  of  eleven  hundred  and 
seventy  dollars,  with  the  costs  of  this  proceeding,  to  be  taxed  by  the 
clerk,  and  also  to  pay  to  said  clerk,  for  the  treasury  of  the  state  of 
Vermont,  the  sum  oi  fifty  dollars,  as  a  further  fine  on  this  behalf;  and 
it  is  further  ordered  and  decreed  that  said  Alfred  W.  Putnam,  in  de- 
fault of  immediate  and  full  payment  of  said  several  sums  of  money, 
be  committed  to  prison  in  the  common  jail  at  Irasburgh  in  said  Orleans 
county,  and  be  therein  confined  until  said  several  sums,  with  interest 
thereon  from  this  day,  together  with  cost  of  commitment  and  confine- 
ment in  jail,  shall  be  fully  paid. 

Done  in  court  this  Tth  day  of  April,  a.  d.  \W8. 

Benj.  H.  Steele^  Chancellor. 

(3)  Mandamus.  1 
Form  No.  6239.' 

At  a  Special  Term  of  the  Supreme  Court  of  the  State  of  New  York, 
held  in  the  county  Court-house  of  Columbia  county,  in  the  city  of 
Hudson,  on  the.  fourth  day  of  April,  i894-: 

Present  —  Hon.  Samuel  Edwards,  Justice. 
The  People  of  the  State  of  New  York,  ^ 

on  the  relation  of  John  I.  Piatt  and 

another, 

against  )• 

Frank  Rice,  Edward  Wemple,  Charles 

F.   Tabor,  Elliot  F.  Danforth  and 

John  Bogart. 

Upon  the  order  of  this  court,  entered  herein  on  the  seventh  day  of 
December,  iS91,  wherein  it  was  ordered  that  a  writ  of  peremptory 
mandamus  issue  out  of  and  under  the  seal  of  this  court,  commanding, 
and  requiring  the  defendants  herein,  the  state  board  of  canvassers, 
to  issue  a  certificate  of  election  to  the  office  of  senator  in  the  fifteenth 

1.  See  also  a  form  in  Ex  p.  Rust,  38  2.  This  form  is  copied  from  the 
Tex.  344.  records  in  People  v.  Rice,  144  N.  Y.  249. 

292  Volume  5. 


6239.  CONTEMPT.  6239. 

senatorial  district  of  this  state,  disregarding  the  so-called  return  of 
the  board  of  county  canvassers  of  the  county  of  Dutchess^  which  was 
signed  by  John  Mylod,  as  secretary  of  said  board  pro  tempore,  and  was 
not  signed  by  the  county  clerk  of  Dutchess  county,  or  certified  under 
the  seal  of  said  county  clerk,  but  that,  instead  thereof,  they  consider 
only  such  return  from  the  county  of  Dutchess  as  should  thereafter  be 
filed,  containing  the  signatures  of  the  clerk  of  the  county  of  Dutchess 
and  the  chairman  of  said  board  of  county  canvassers,  and  issued 
under  the  seal  of  the  said  county  clerk,  and  that  in  such  certificate 
of  election  the  said  defendants,  as  such  state  board  of  canvassers, 
should  certify  and  declare  that  the  person  who  appeared  upon  the 
certified  returns  and  statements  made  by  the  board  of  canvassers  of 
the  counties  of  Columbia,  Putnam  and  Dutchess,  in  pursuance  of  the 
statute  and  the  order  of  the  court,  to  have  received  the  greatest 
number  of  votes,  was  duly  elected  from  the  fifteenth  senatorial 
district. 

And  upon  the  order  entered  in  the  Court  of  Appeals  herein,  on 
December  29,  iS9J,  as  embodied  in  the  remittitur  sent  from  that  court 
to  this  court,  wherein  it  was  ordered  and  adjudged,  and  the  said 
order  of  this  court  of  December  7,  i891,  and  the  order  of  the  General 
Term,  affirming  the  same,  and  the  said  writ  itself  be  modified  by 
striking  out  the  provision  requiring  a  return  to  be  certified  by,  and 
to  come  from,  the  county  clerk  of  Dutcjiess  county,  and  issued  under 
the  seal,  and  that  the  said  order  so  appealed  from,  as  so  modified,  be 
affirmed  without  costs. 

And  upon  the  affidavits  oi  John  I.  Piatt,  Robert  F.  Wilkinson,  J. 
Rider  Cady,  Charles  F.  Cussum,  F.  E.  Smith,  C.  If.  Winslow,  and 
Alfred  R.  Conklin,  filed  in  the  office  of  the  clerk  of  Albany  county, 
June  9,  1 85.?,  and  the  order  entered  herein  at  the  GeneralTtrm.  of 
this  court,  December  6,  iS93,  reserving  the  order  entered  herein  at  a 
Special  Term  of  this  court,  denying  the  motion  then  made  upon  the 
said  affidavits  by  the  relator,  for  an  order  requiring  the  defendants 
herein  to  show  cause  why  they  should  not  be  punished  as  for  a  con- 
tempt of  court,  and  granting  such  motion,  and  requiring  said  defend- 
ants to  show  such  cause  before  this  court  at  a  Special  Term,  thereof^ 
to  be  held  in  the  city  of  Hudson,  on  January  13,  iS94. 

And  on  reading  and  filing  a  copy  of  the  appeal  book  on  said  appeal, 
and  a  certified  copy  of  such  order  of  the  General  Term,  and  notice  of 
filing  of  the  original,  and  of  the  application  so  to  be  made  on  January 
IS,  xWJf.,  before  this  court  at  a  Special  Ttrva,  in  said  county  of  Co- 
lumbia, with  due  proof  of  service  thereof  upon  the  said  defendants 
herein. 

And  on  reading  and  filing  the  answer  of  the  said  defendants,  duly 
verified  by  each  of  them,  and  accepted  as  affidavits  by  them  respec- 
tively, and  the  affidavits  of  J.  Newton  Fiero  and  John  J.  Hughes,  in 
opposition  to  the  motion. 

And  after  hearing  Mr.  John  Brooks  Leavitt,  of  counsel  for  the  rela- 
tor, for  the  motion,  and  Mr.  J.  Newton  Fiero,  of  counsel  for  the 
respondents,  opposed,  and  due  deliberation  had  thereon. 

And  it  appearing  that,  after  said  order  of  December  7,  iS91,  had 
been  filed,  and  pending  the  said  appeal,  by  the  defendants,  to  the 

293  Volume  5. 


6239.  CONTEMPT.  6239. 

Court  of  Appeals,  from  the  order  of  the  General  Term  affirming  said 
order  of  December  7,  i85i,  another  return  of  the  board  of  county 
canvassers  of  Dutchess  county  was  filed  pursuant  to  the  statute  and 
an  order  of  the  court  in  the  office  of  the  clerk  of  said  Dutchess  county, 
and  certified  copies  thereof  were  forwarded  by  him  to  the  Governor,  the 
Secretary  of  State  and  the  State  Comptroller,  pursuant  to  the  statute 
and  said  order,  and  the  said  certified  copies  of  such  return  were  taken 
from  their  possession,  and  other  certified  copies  of  the  same  return 
were  delivered  to  each  one' of  the  defendants  respectively  by  a  pri- 
vate citizen,  and  the  said  defendants  had  the  same  in  their  possession 
on  the  twenty-ninth  day  of  December,  i891,  at  the  meeting  held  by 
them  as  the  said  board  of  canvassers,  hereinafter  referred  to. 

And  it  appearing  that  upon  the  said  returns  made  by  the  board  of 
canvassers  of  the  counties  of  Columbia,  Putnam  and  Dutchess,  regard- 
ing the  aforesaid  return  signed  by  said  Mylod  as  one  of  them,  that 
one  Edward  B.  Osborne  had  received  the  greatest  number  of  votes 
for  the  office  of  senator  from  said  district;  and  that  upon  the  returns 
made  by  the  said  boards  of  county  canvassers  of  the  said  counties, 
considering  the  other  return  from  the  board  of  county  canvassers 
of  Dutchess  county  so  filed  as  aforesaid  after  the  said  order  of 
December  7,  i80i,  as  one  of  such  returns,  that  one  Gilbert  A.  Deane 
had  received  the  greatest  number  of  votes  for  said  office. 

And  it  further  appearing  that  on  the  twenty-ninth  day  of  December, 
iS91,  after  the  rendition  by  the  Court  of  Appeals  of  its  decision,  upon 
the  appeal  to  it,  by  the  defendants  herein,  from  the  order  of  the 
General  Term  affirming  said  order  of  the  Special  Term  of  December 
7,  iS91,  and  before  the  judgment  of  said  Court  of  Appeals  herein 
was  made  the  judgment  of  this  court  by  filing  the  remittitur  and 
entering  thereon  the  usual  order  upon  the  remittitur,  making  the  said 
judgment  of  the  Court  of  Appeals  the  judgment  of  this  court,  and 
before  any  writ  of  mandamus,  in  pursuance  the;reof,  was  issued  out  of 
and  under  the  seal  of  this  court,  pursuant  to  the  said  order  of  Decem- 
ber 7,  iS9i,  as  so  modified,  they,  the  said  defendants,  held  a  meeting 
for  the  purpose  of  canvassing  the  returns  made  by  the  boards  of 
canvassers  of  the  counties  of  Columbia,  Putnam  and  Dutchess,  for  the 
office  of  senator  in  the  fifteenth  senatorial  district,  and  thereupon 
that  they,  the  said  defendants,  did  regard  the  return,  hereinbefore 
called  the  Mylod  xQXMxxi,  and  did  not  consider  the  other  return,  here- 
inbefore mentioned,  which  had  thereafter  been  filed  pursuant  to  the 
statute  and  the  order  of  the  court,  as  aforesaid,  and  which  was  in  the 
possession  of  them,  the  said  defendants,  at  the  time  of  such  meeting, 
and  did  issue  their  certificate  of  election,  whereby  they  certified  and 
declared  that  said  Edward B.  Osborne  had  received  the  greatest  number 
of  votes  in  the  counties  of  Columbia,  Putnam  and  Dutchess  for  the 
position  of  senator  for  the  fifteenth  senatorial  district. 

And  it  appearing  that  defendants,  in  canvassing  the  said  returns 
from  said  counties  aforesaid,  and  in  issuing  their  certificate  of  elec- 
tion aforesaid,  were  guilty  of  the  offense  of  contempt  of  this  court, 
and  that  such  contempt  was  calculated  to  and  actually  did  defeat, 
impair  and  prejudice  the  rights  and  remedies  of  the  relators  herein; 
and  that  such  disobedience  was  not  wilful, 

294  Volume  5. 


6240.  CONTEMPT.  6240. 

And  it  not  having  been  shown  that  any  actual  loss  or  injury  has 
been  produced  to  the  said  relators  by  reason  thereof,  and  due  proof 
having  been  given  to  the  complainant's  costs  and  expenses  in  prose- 
cuting these  proceedings  to  punish  these  defendants,  for  such  con- 
tempt aforesaid,  including  a  reasonable  counsel  fee,  and  the  amount 
of  such  costs,  including  such  reasonable  counsel  fee,  being  the  sum  of 
%550,  and  the  amount  of  such  expense  being  the  sum  of  ^81.28^ 
making  a  total  sum  of  %8S1.28^  as  the  amount  of  the  complainant's 
costs  and  expenses  herein. 

Now,  on  motion  of  Messrs.  Leavitt,  Wood  dr*  Keith,  attorneys  for  the 
relators,  it  is  ordered  and  adjudged  as  follows: 

That  in  canvassing,  as  aforesaid,  the  said  election  returns  from 
the  fifteenth  senatorial  district  for  the  office  of  senator  for  that 
district,  on  December  29,  iS91,  and  in  issuing  their  certificate  of  elec- 
tion, in  which  they  declared  that  Edward  B.  Oslwrne  had  received 
the  greatest  number  of  votes  in  the  counties  of  Columbia,  Putnam 
and  Dutchess,  for  the  office  of  senator  from  said  district,  they,  the 
said  defendants,  were  guilty  of  contempt  of  this  court,  and  that  such 
contempt  was  calculated  to  and  actually  did  defeat,  impair,  impede 
and  prejudice  the  rights  and  remedies  of  the  relators  herein. 

And  it  is  further  ordered  and  adjudged  that  the  said  defendants, 
Frank  Rice,  Edward  Wemple,  Charles  F.  Tabor,  Elliot  F.  Danforth 
and  John  Bogart  be  and  they  are  hereby  fined  in  the  sum  of  %831.28, 
the  amount  of  the  complainant's  costs  and  expenses,  as  aforesaid,  and 
that  they  pay  the  said  sum  of  ^31.28  to  Messrs.  Leavitt,  Wood  6^ 
Keith,  the  attorneys  for  the  relators  herein. 

Enter  in  Albany  county. 

Samuel  Edwards,  Justice  Supreme  Court. 

d.  Upon  Report  of  Referee. 

Form  No.  6240.' 

At  a  Special  Term  of  the  Supreme  Court  held  at  the  Court-house  in 
the  City  of  Utica,  in  and  for  the  County  of  Oneida  and  State  of  New 
York,  on  the  15th  day  oi  June,  iS89. 

Present:  Hon,  Milton  H.  Merwin,  Justice  Presiding. 
Rozellen  Aldinger  ) 
vs,  >• 

Emery  S.  Pugh.  ) 
The  People,  ex  rel.  Rozellen  Aldinger, 
vs. 
Stephen  J.  Pugh. 

An  action  having  been  commenced  in  this  court  by  Rozellen  Al- 
dinger, the  above  named  plaintiff,  against  Emery  S.  Pugh,  the  above 
named  defendant,  for  the  purpose,  among  other  things,  of  restraining 
the  defendant  from  selling  and  disposing  of  a  quantity  of  hay  then 
situate  on  the  farm  of  the  plaintiff  in  the  town  of  Frankfort,  Herkimer 
county.  New  York,  and  the  said  plaintiff  having  on  the  seventh  day  of 

1,  This  form  is  copied  from  the  records  in  Aldinger  v.  Pugh,  132  N.  Y.  403. 

295  Volume  5. 


6240.  CONTEMPT.  6240. 

December,  i855,  duly  obtained  an  injunction  order  in  said  action  in 
and  by  which  the  said  defendant,  Emery  S.  Eugh,  and  his  servants, 
agents,  assistants  and  assigns,  and  each  of  them  were  ordered  and 
enjoined  during  the  pendency  of  the  action  or  until  the  further  order 
of  this  court  absolutely  to  desist  and  refrain  from  selling,  disposing 
of  or  drawing  away  any  of  the  hay  on  the  farm  mentioned  in  the 
complaint  in  said  action  which  the  defendant  had  leased  of  the  plain- 
tiff and  was  then  occupied  by  the  defendant,  situate  as  aforesaid  in 
the  town  of  Erankfort,  Herkimer  county  and  state  of  New  York,  and 
the  summons  and  complaint  and  said  injunction  order,  together 
with  the  papers  upon  which  it  was  granted,  having  been  duly  served 
on  the  defendant  on  the  seventh  day  of  December,  iS88,  and  an  order  to 
show  cause  having  been  duly  granted  in  said  action  on  the  thirty-first 
day  of  December,  1888,  directing  Emery  S.  Pugh,  the  said  defendant, 
Stephen  J.  Pugh,  Michael  Leary  and  the  Utica  and  Mohawk  Railroad 
Company,  and  each  of  them,  to  show  cause  at  the  Special  Term  of  this 
court,  held  at  the  court-house,  city  of  Utica,  New  York,  on  the  eighth 
day  oi  January,  i889,  why  they  and  each  of  them  should  not  be  pun- 
ished for  their  alleged  contempt,  offenses  and  misconduct  for  having 
knowingly  and  wilfully  violated  said  injunction  order,  and  having,  on 
the  tiventy-second  and  the  twenty -fourth  day  of  December,  1888,  drawn 
away  from  said  farm  and  disposed  of  a  quantity  of  the  hay  mentioned 
and  referred  to  in  said  injunction  order,  and  the  said  order  to  show 
cause  and  the  papers  upon  which  it  was  granted  having  been  duly 
served  on  each  of  said  parties,  and  upon  the  return  of  said  order  to 
show  cause,  Edward  Lewis,  Esq.,  an  attorney  and  counsellor  at  law  of 
Utica,  New  York,  having  duly  appeared  for  said  Emery  S.  Pugh  and 
Stephen  J.  Pugh,  and  William  E.  Lewis,  Esq. ,  an  attorney  and  counsellor 
of  law,  of  said  city,  having  duly  appeared  for  said  Michael  Leary  and 
Utica  and  Mohazvk  Railroad  Company,  and  after  hearing  Henry  E.  &" 
James  Coupe  for  the  plaintiff  in  said  action  in.  favor  of  the  relief  asked 
for  in  said  order  to  show  cause,  and  said  Messrs.  Lewis,  attorneys  for 
the  said  parties,  to  whom  the  order  was  directed,  in  opposition 
hereto,  and  said  matter  was  by  an  order  of  the  court  granted  that 
day,  duly  referred  to  Charles  G.  Lrish,  Esq.,  a  counsellor  at  law  in 
the  city  of  Utica,  New  York,  as  referee  to  take  the  examination  or 
testimony  of  the  parties  to  this  proceeding  and  their  witnesses  of  the 
facts  charged  as  to  whether  defendant  violated  said  injunction  order, 
and  if  violated,  whether  such  violation  was  wilful,  and  whether 
Stephen  J.  Pugh,  Michael  Leary,  and  the  Utica  and  Mohawk  Railroad 
Company,  or  either  of  them,  knowingly  or  wilfully  violated  said 
injunction  order,  or  whether  they,  or  either  of  them,  aided  or  abetted 
the  defendant  in  violating  the  same  in  the  removing  from  the  farm 
of  the  plaintiff,  situated  in  the  town  of  Erankfort,  Herkifner  county. 
New  York,  on  the  twenty-second  and  twenty-fourth  days  of  December, 
1888,  a  quantity  of  hay,  in  violation  of  said  injunction  order,  and  the 
value  of  the  hay  drawn  away  from  said  farm,  if  any,  and  if  said 
injunction  order  was  so  violated  by  said  parties,  or  either  of  them, 
did  the  same  defeat,  impede,  impair  or  prejudice  the  rights  of  the 
plaintiff  in  the  action,  and  to  what  extent,  and  the  damages  sustained 
by  the  plaintiff,  and  that  he  report  said  facts  and  return  the  testi- 

296  Volume  5. 


6240.  CONTEMPT.  6240. 

mony  taken  by  him,  together  with  his  opinion,  to  the  Supreme  Court, 
and  the  said  referee,  having  been  duly  attested  *by  said  parties  and 
their  witnesses,  and  having  duly  made  his  report  thereon  to  this 
court,  in  which  he  states  that  in  his  opinion  the  said  Stephen  J.  Pugh 
on  the  twenty -second  and  twenty-fourth  days  of  December,  1888,  drew 
from  said  premises  eleven  tons  of  hay  of  the  value  of  %13'2,  and  that 
by  said  removal  the  defendant,  Emery  S.  Pugh,  and  said  Stephen  J. 
Pugh,  and  each  of  them  knowingly  and  wilfully  violated  said  injunc- 
tion order;  the  defendant  in  permitting  the  said  Stephen  J.  Pugh  to 
so  remove  said  hay,  and  the  said  Stephen  J.  Pugh  in  aiding  and  abet- 
ting and  assisting  the  defendant  to  remove,  and  draw  away  and  dis- 
pose of  the  said  hay,  the  same  being  a  part  of  the  hay  referred  to  in 
and  restrained  by  said  injunction  order,  and  that  they  and  each  of 
them  should  be  punished  therefor. 

And  the  said  referee  having  further  reported  that  in  his  opinion 
the  order  to  show  cause  should  be  dismissed  as  to  Michael  Leary  and 
the  Utica  and  Mohawk  Railroad  Cotnpany,  and  a  motion  having  been 
made  at  a  Special  Term  of  this  court,  held  at  the  court-house  in  the 
city  of  Syracuse,  New  York,  on  the  twenty-fifth  day  of  May,  i889,  for 
an  order  confirming  said  report  of  the  referee  and  adjudging  the 
defendants  Emery  S.  Pugh  and  Stephen  J.  Pugh  guilty  of  contempt 
for  having  wilfully  violated  said  injunction  order  as  above  charged 
and  alleged  and  punishing  them  therefor  by  fine  or  imprisonment  or 
both,  and  that  a  commitment  issued  against  them  accordingly;  and 
the  court  having  ordered  said  matter  to  Mr.  Justice  Merwin  at  this 
term  of  court,  and  the  matter  having  been  duly  brought  to  a  hearing, 
and  after  reading  and  filing  the  report  of  said  referee,  dated  Afay 
10th,  i889,  and  the  testimony  taken  by  them,  the  affidavit  of  Henry 
F.  Coupe,  verified  May  nth,  i889,  the  written  opinion  of  the  Court, 
Merwin,  Justice;  Special  Term,  January  8th,  i889,  disposing  of  the 
matter  which  came  up  on  the  order  to  show  cause,  the  affidavits  of 
William  E.  Lewis,  verified  May  16th,  i889,  and  after  hearing  IVm.  E. 
Lewis  in  favor  of  confirming  said  referee's  report  as  to  the  Utica  and 
Mohawk  Railroad  Company  and  Michael  Leary,  and  Henry  F.  cr*  James 
Coupe,  plaintiff's  attorneys,  in  favor  of  the  motion  above  mentioned, 
and  Edward  Lewis  in  opposition  hereto  — 

It  is  hereby  considered  and  adjudged  that  the  defendants  Emery 
S.  Pugh  and  Stephen  J.  Pugh  are  guilty  of  a  contempt  in  having 
knowingly  and  wilfully  disobeyed  the  said  injunction  order  granted 
in  said  action.  The  said  Emery  S.  Pugh  in  causing  and  permitting 
eleven  of  the  tons  of  the  hay  mentioned  in  and  restrained  by  said 
injunction,  of  the  value  of  %132,  to  be  removed,  drawn  away  and  dis- 
posed of  while  said  injunction  order  was  in  force,  to  wit,  on  the 
twenty-second  and  twenty-fourth  days  oi  December,  1888.  The  said 
Stephen  J.  Pugh,  in  having  with  full  knowledge  of  said  injunction 
order,  of  its  contents,  and  of  the  service  of  it  on  the  said  defendant, 
while  acting  as  the  agents,  servant  and  assistant  of  the  said  defend- 
ant, aided  and  abetted  the  said  defendant,  Emery  S.  Pugh,  in  said 
removing,  drawing  away  and  disposing  of  said  eleven  tons  of  hay  on 
the  said  twenty-second  zx\d  twenty-fourth  ddi^s  oi  December,  \888,z.nd 
that  said   violation  of  said   injunction  order  was  calculated  to  and 

297  Volume  5. 


624 1 .  CON  TEMP  T.  6241 . 

actually  did  defeat,  impede,  impair  and  prejudice  the  rights  and  reme- 
dies of  the  plaintiff  in  said  action. 

It  is  further  considered  and  adjudged  and  ordered  that  the  said 
Emery  S.  Pugh  and  Stephen  J.  Pugh  pay  a  fine  of  %100  referee's  fees, 
$i7  witness  fees,  %50  counsel  fees  and  %10  costs  of  this  motion,  in  all 
the  sum  of  one  hundred  and  seventy-seven  dollars  (^111^,  to  be  paid  to 
the  plaintiff  herein,  Rozellen  Aldinger,  to  satisfy  her  costs  and  expenses 
in  the  premises,  and  that  they  stand  committed  to  the  common  jail 
of  Oneida  county  until  said  fine  be  paid. 

It  is  further  ordered  and  adjudged  that  the  said  order  to  show 
cause,  and  these  proceedings  against  Michael  Leary  and  Utica  and 
Mohawk  Railroad  Company  be  and  they  are  hereby  dismissed,  and 
that  the  plaintiff  in  said  action,  said  Rozellen  Aldinger,  pay  to  them 
or  their  attorney,  William E.  Lewis,  Esq.,  %10  costs  on  said  order  to 
show  cause,  and  %10  costs  of  reference,  and  %10  costs  of  this  motion; 
and  in  all,  thirty  dollars  ($50) 

Enter:     M.  H.  M. 

7.  Commitment.! 

a.  For  Contempt  in  Facie  Ciirise. 

Form  No.  6241. 

(Precedent  in  Hill  v.  Crandall,  52  111.  71.)* 

State  of  Illinois^ 

Will  County. 

The  People  of  the  State  of  Illinois  to  the  Sheriff  of  said  County: 

Whereas,  on  the  19th  day  of  August,  a.  d.  i86<?,  while  Edward  W. 
Crandall,  one  of  the  justices  of  the  peace  in  and  for  said  county,  was 
engaged  listening  to  a  motion  made  before  him  for  a  continuance  of 
a  cause  then  pending  at  his  office  in  Joliet,  wherein  Jacob  Powles  was 
the  plaintiff,  3.x\d  Isaac  JVoabes  the  defendant,  Charles  A.  Hill,  attorney 
for  the  said  plaintiff,  did  wilfully  and  contemptuously  resist  said 
motion  after  the  court  had  given  him,  the  said  Charles  A.  Hill,  notice 
that  the  said  motion  had  been  granted,  and  being  ordered  by  the  said 
justice  to  cease,  refused  to  do  so,  and  said  that  the  said  justice  could 
"fine  and  be  damned."  And  whereas,  the  said  Charles  A.  Hill  yf as 
forthwith  called  upon  by  the  said  justice  and  required  to  answer  for 
said  contempt,  and  to  show  cause  why  he  should  not  be  convicted 
thereof,  but  did  not  make  any  defense  except  to  deny  the  jurisdiction 
of  the  said  justice,  and  did  not  make  any  apology  for  his  said  con- 
duct, and  whereas  the  said  justice  did  thereupon  convict  the  said 
Charles  A.  Hill  oi  said  contempt,  and  adjudge  and  determine  that  he 
pay  a  fine  oi  Jive  doWdiTS,  and  that  he  be  committed  to  the  common 
jail  of  said  county  until  he  pay  the  said  fine,  or  until  he  be  discharged 

1.  See  also  forms  in  Clyma  v.  Ken-  ceeding  for  contempt  is  in  the  nature  of 
nedy,  64  Conn.  313;  In  re  Clayton,  59  a  criminal  proceeding,  and  when  a  per- 
Conn.  510;  Exp.  O'Brien,  127  Mo.  son  is  guilty  of  contempt  in  open  court, 
486;  People  V.  Cassels,  5  Hill  (N.  Y.)  before  a  justice  of  the  peace,  the  justice 
165;  Fitler  v.  Probasco,  2  Browne  may  direct  his  warrant  for  the  arrest  of 
(Pa.)  138.  the  offender  to  the  sheriff  of  the  county. 

2.  It  was  held  in  this  case  that  a  pro-  Hill  v.  Crandall,  52  111.  70. 

298  Volume  5. 


^'  [  ss. 


6242.  CONTEMPT.  6243. 

by  due  course  of  law.  We  therefore  command  you,  the  said  sheriff, 
to  take  the  said  Charles  A.  Hill,  and  deliver  him  to'  the  keeper  of  the 
common  jail  of  said  county,  together  with  this  warrant;  and  you,  the 
said  keeper,  are  hereby  required  to  receive  him  into  your  custody  in 
the  said  jail,  and  him  there  safely  keep  until  he  pay  the  said  fine,  or 
until  he  shall  be  discharged  by  due  course  of  law.  Hereof  fail  not  at 
your  peril. 

Given  under  my  hand  and  seal  this  21st  day  of  August,  a.  d.  i%68. 

E.   W.  Crandall,  J.  P.     (seal) 

Form  No.  6242. 

(Precedent  in  Morrison  v.  McDonald,  21  Me.  551.) 

State  of  Maine.  Penobscot,  ss.  Whereas  at  a  municipal  court  for  the 
city  of  Bangor,  in  the  county  of  Penobscot,  holden  at  said  Bangor,  on  the 
twenty-first  day  of  January,  a.  d.  i  %3d. 

Reuben  S.  Prescott  appeared  with  a  commission  from  the  Governor, 
and  having  been  duly  qualified  as  recorder  of  said  Court,  and  also  with 
a  notice  from  the  Secretary  of  State  directed  to  Samuel  Morrison,  noti- 
fying him  that  Reuben  S.  Prescott  of  Bangor  had  by  the  Governor,  with 
the  advice  and  consent  of  Council,  been  duly  appointed  recorder  in  his 
stead,  and  had  been  commissioned  accordingly,  which  said  notice  was 
read  by  said  Prescott  in  the  hearing  of  said  Morrison,  and  delivered  to 
him  in  hand  by  said  Prescott.  Whereupon  tlie  Court  directs  said  Pres- 
cott to  take  charge  of  the  papers  and  records  of  said  Court,  and  said 
Prescott  attempting  to  take  charge  of  the  same  is  resisted  by  said 
Morrison,  and  the  said  Samuel  Morrison  claiming  to  be  Recorder  of  said 
Court,  and  not  recognizing  the  authority  of  the  Governor  and  Council 
to  remove  him  in  the  manner  they  have  exercised  said  authority;  there- 
fore the  Court  order  and  direct,  that  the  said  J/i7rm<7«  be  committed 
to  the  common  jail  in  Bangor  m.  said  county  for  contempt  of  Court  by 
indecent  behavior  in  thus  withholding  the  records  and  resisting  the 
Recorder  of  said  Court,  and  thus  insulting  said  Court  and  obstructing 
it  in  the  due  and  lawful  exercise  of  its  duties,  against  the  peace  of  said 
State. 

Wherefore  in  the  name  of  said  State,  you  are  commanded  to  convey 
the  said  Samuel  Morrison  to  the  common  jail  in  said  Bangor  and  there 
deliver  him  to  the  keeper  thereof  with  this  precept;  and  the  said 
keeper  is  alike  commanded  to  receive  the  said  Morrison  into  his  cus- 
tody in  said  jail,  and  him  there  keep  for  want  of  sureties,  or  until  he 
be  otherwise  discharged  by  due  course  of  law. 

Witness,  John  McDonald,  our  said  Judge,  at  Bangor  aforesaid,  this 
twenty- first  day  of  January,  a.  d.  i859. 

R.  S.  Prescott,  Recorder, 

Form  No.  6243. 

(Precedent  in  People  v.  Sheriff,  7  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  97.)' 

The  People  of  the  State  of  JVeia  York,  to  the  Sheriff  of  the  City  and 
County  of  Ne^v  York,  greeting: 

1.  This  commitment  is  regular  and  sufficient  in  form,  and  contains  the  cause 
of  the  alleged  contempt  plainly  charged  therein. 

299  Volume  5. 


6243.  CONTEMPT.  6243. 

Whereas,  in  a  certain  action  pending  in  the  Court  of  Commoi  Pleas^ 
for  the  city  and  county  of  New  York,  between  John  H.  McCunn  and 
James  Moncrief,  plaintiffs,  and  John  McKechtiie,  defendant,  for  the 
recovery  of  a  certain  lot  of  land  in  the  said  city  of  New  York,  one 
Joh7i  F.  Bettz  had  been  examined  upon  the  trial  thereof  as  a  witness 
for  the  defendant,  and  upon  such  examination  had  sworn  that  he 
claimed  the  title  to  the  said  land;  that  the  said  defendant  was  his 
tenant,  and  that  he,  the  said  Bettz,  was  defending  the  said  action  as 
the  landlord  of  the  said  defendant,  and  being  asked  whether  he  had 
in  his  possession  any  old  deeds,  leases  or  assignments  relating  to  the 
said  land,  and  having  answered  that  he  had  received  from  his  grantors 
a  certain  lease  and  other  papers  which  he  had  kept  in  his  possession 
until  a  few  days  before  the  said  trial,  when  he  had  delivered  them  to 
John  W.  Mitchell,  his  attorney,  and  the  attorney  of  the  said  defend- 
ant in  the  said  action;  and  being  asked  to  produce  the  said  old  lease 
and  other  papers,  answered  that  he  was  unable  to  do  so  because  they 
were  in  the  possession  of  the  said  Mitchell,  who  was  then  in  court, 
acting  as  the  attorney  and  counsel  of  the  defendant  in  the  said  trial. 
And  whereas  the  said  John  W.  Mitchell,  who  is  a  counsellor  of  the 
Supreme  Court  of  the  State  of  New  York,  and  of  the  Court  of  Common 
Pleas  of  the  city  and  county  of  New  York,  and  counsel  for  the  defend- 
ant in  the  said  action,  pending  in  the  said  Court  of  Common  Pleas, 
between  John  H.  McCunn  and  James  Moncrief,  plaintiffs,  and  John 
McKechnie,  defendant,  being  then  placed  under  examination,  as  a 
witness  for  the  plaintiff  in  the  said  action,  upon  the  trial  thereof  be- 
fore the  said  Court  of  Coinmon  Pleas,  at  a  special  term  thereof,  held  at 
the  City  Hall  of  Nejv  York,  on  the  22d  day  of  May,  i858,  was  asked  a 
question  material  and  pertinent  to  the  issue,  wherein,  that  is  to  say, 
whether  he  had  in  his  possession  any  deed,  lease,  or  other  papers 
delivered  to  him  by  one  John  F.  Bettz.  And  whereas  the  said  John 
W.  Mitchell  said  he  could  not  state  whether  there  was  any  such  deed, 
lease  or  other  papers,  without  looking  at  a  bundle  of  papers  then 
being  in  court  and  in  his  possession,  and  thereto  brought  by  him. 
And  whereas  the  said  John  W.  Mitchell  was  thereupon,  during  the 
sitting,  and  in  the  presence  of  the  court,  and  by  the  direction  of  the 
said  court,  directed  to  look  at  said  bundle  of  papers,  for  the  purpose 
of  answering  the  said  question,  which  he  refused  to  do;  and  whereas, 
after  having  so  declined  to  make  such  examination,  and  pending  the 
consideration,  by  the  court,  of  a  motion  for  his  commitment,  then  to 
the  said  court  made,  upon  the  ground  of  such  refusal,  he,  the  said 
John  W.  Mitchell,  gave  the  said  lease  and  other  papers  to  his  client, 
with  instructions  to  take  them  from  the  said  court  to  the  office  of  his 
counsel;  and  whereas  the  examination  of  the  said  J///M^// being  by 
regular  adjournment  of  the  said  trial,  continued  on  the  21th  May, 
aforesaid,  he  was  then  examined,  and  admitted  that  he  had  in  his 
possession  the  paper  thus  received  from  the  said  Bettz,  and  he  was 
then  asked  whether  he  would  state  what  said  papers  were,  and  he 
answered  that  he  could  not,  without  examining  them;  and  he  was 
then  asked  whether  he  would  look  at  the  papers,  and  state  what  they 
were,  so  far  as  to  identify  them,  and  he  answered  that  he  would  not; 
and  he  was  then  asked  to  look  at  the  papers,  and  state  what  they 

300  Volume  5- 


6244.  CONTEMPT.  6245. 

were,  and  he  refused  to  do  so,  though  thereto  required  by  the  court ; 
and  he  was  further  asked  to  produce  the  said  papers,  and  though 
required  by  the  court  to  do  so,  refused,  and  gave  as  his  reasons  for 
refusing,  that  to  answer  would  be  a  breach  of  his  privilege  as  attor- 
ney for  the  defendant;  and  whereas  all  the  said  questions  were  ma- 
terial and  pertinent  to  the  issue  in  the  said  action;  and  whereas  it 
appears  that  the  said  John  W.  Mitchell,  before  his  said  examination, 
was  duly  served  with  a  subpoena  duces  tecum  requiring  him  to  appear 
on  the  days  and  at  the  times  and  places  aforesaid,  and  produce  the 
said  papers,  and  has  been  paid  his  fees  thereon;  and  whereas  the  said 
John  W.  Mitchell\\2s  thus  been  guilty  of  contemptuous  behavior  in  the 
immediate  view  and  presence  of  the  said  CovlvX.  of  Common  Fleas,  during 
its  sitting,  tending  directly  to  interrupt  its  proceedings,  and  impair 
the  respect  due  to  its  authority ;  and  whereas  the  aforesaid  misconduct 
of  the  said  Mitchell  was  calculated  to  impair  or  defeat  the  rights  of 
the  plaintiff  in  the  said  action;  and  whereas  the  said  John  W.  Mitchell, 
for  the  cause  aforesaid,  was  adjudged  to  be  guilty  of  contempt  of  the 
said  court.  Now,  therefore,  you  are  hereby  ordered  to  take  the  body 
of  sddd  John  W.  Mitchell,  and  commit  him  to  the  common  jail  of  the 
city  and  county  of  New  York,  and  there  keep  him  in  prison  for  the 
space  of  ten  days,  or  until  he  be  sooner  discharged  according  to  law. 
Witness,  John  R.  Brady,  Judge  of  the  said  Court  of  Common  Pleas, 
of  the  City  Hall,  in  the  city  oi  New  York,  the  21  th  day  oiMay,  i858. 

Nathaniel  Jarvis,  Clerk. 

Form  No.  6244. 
(Precedent  in  In  re  Stokes,  5  S.  Car.  71.)' 

State  of  South  Carolina,  )  y     ^.      . .  p 
Greenville  County.  \ 

R.  H.  Earle,  plaintiff, 
against 
Edward  F.  Stokes,  defendant. 

A  notice  having  been  made  by  the  Court  on  the  25th  day  of  July, 
A.  D.  187^,  that  the  defendant  herein  should  appear  before  this  Court 
and  answer  such  questions  as  may  be  propounded  to  him,  touching 
his  property,  and  the  said  defendant  refusing  to  be  so  sworn  and 
answer,  it  is  ordered  that  he  be  held  by  the  Sheriff  in  close  confine- 
ment until  such  time  as  he  shall  make  such  answer, 

T.  H.  Cooke. 
September  12,  i873. 

b.  Fop  Failure  to  Obey. 
(1)  Decree  in  Chancery. 

Form  No.  6245. 

(Precedent  in  Stimpson  v.  Putnam,  41  Vt.  244,) 

State  of  Vermont,       \  To    any   sheriff    or    constable    in   the   state, 
Orleans  County,  ss.  J      greeting: 

1.  The  petitioner's  motion  for  discharge  from  detention  under  and  by  virtue 
of  this  warrant  was  denied. 

301  Volume  5. 


6246.  CONTEMPT.  6246. 

By  the  authority  of  the  state  of  Vermont  you  are  hereby  com- 
manded to  attach  the  body  of  Alfred  W.  Putnam,  of  Newport  in  said 
county,  and,  unless  he  shall  forthwith  pay,  or  cause  to  be  paid,  the 
several  sums  of  money  in  the  foregoing  decree  of  the  court  of  chan- 
cery ordered  to  be  paid,  the  said  Alfred  W.  Putnam  having  been 
adjudged  guilty  of  a  contempt  as  is  therein  set  forth,  you  will  proceed 
and  commit  the  said  Putnam  to  prison  in  the  common  jail  in  Iras- 
burgh  in  said  Orleans  county,  and  you  will  lodge  with  the  keeper  of 
said  prison  a  true  and  attested  copy  of  this  precept  and  of  the  fore- 
going decree;  and  the  keeper  of  said  prison  is  commanded  to  receive 
the  said  Putnam  within  said  prison,  and  to  keep  and  hold  him  as  a 
prisoner  within  said  prison  until  he  shall  pay  said  several  sums,  inter- 
est and  cost,  as  in  said  decree  required. 

Given  under  my  hand,  at  Newport  in  the  county  of  Orleans,  this 
1th  day  of  April,  a.  d.  i868. 

Benj.  H.  Steele,  Chancellor. 

(2)  Injunction. 

Form  No.  6246. 

(Precedent  in  Matter  of  Sloan,  5  N.  Mex.  638.) 

The  Territory  of  New  Mexico  to  Francisco  Chavez,  sheriff  of  the 
county  of  Santa  Fe,  greeting: 
Whereas  on  the  12th  day  of  November,  iS90,  an  injunction  was 
issued  out  of  the  district  court  of  Santa  Fe  county  enjoining  and 
restraining  fohn  H.  Sloan,  George  L.  Wyllys  and  Teodoro  Martinez, 
both  individually  and  as  members  of  the  board  of  county  commis- 
sioners of  said  Santa  Fe  county,  their  agents,  servants,  or  ordering 
or  causing  to  be  made  or  delivered,  any  certificate  of  election  to 
the  offices  of  members  of  the  house  of  representatives  of  the  legisla- 
tive assembly  of  the  territory  of  New  Mexico,  and  of  member  of  the 
council  of  said  legislative  assembly,  to  any  person  or  persons  other 
than  Benjamin  M.  Read,  Joseph  B.  Mayo,  and  Thomas  B.  Catron,  and 
from  making,  or  causing  to  be  made,  any  record  of  the  result  of  their 
canvass  of  the  election  returns  of  the  election  held  in  said  county  of 
Santa  Fe  on  the  J^th  day  of  November,  i890,  until  the  further  order 
of  said  district  court  in  the  premises.  And  whereas,  on  the  17th  day 
oi  January,  iS91,  there  was  filed  in  the  office  of  the  clerk  of  said 
court  the  petition  of  the  said  T/iomas  B.  Catron,  setting  forth  that 
the  said  John  H.  Sloan  and  Teodoro  Martinez,  two  of  the  defendants 
in  said  injunction  proceedings,  wholly  disregarding  the  injunction  so 
issued  as  aforesaid,  did,  on  the  5th  day  oi  December,  \W0,  sitting  as  a 
board  of  canvassers  of  said  county,  canvass  the  returns  of  the  general 
election  held  in  said  county  on  the  Jfth  day  of  November,  iS90,  and 
did  on  said  5th  day  of  December,  i890,  make,  order,  and  deliver  a 
certificate  of  election  to  the  offices  of  members  of  the  house  of  repre- 
sentatives of  the  legislative  assembly  to  persons  other  than  the  said 
Benjamin  M.  Read,  the  said  Joseph  B.  Mayo  and  the  said  Thomas  B. 
Catron,  to  wit,  to  one  Charles  F.  Easley,  to  one  Thomas  P.  Gable,  and 
to  one  Romulo  Martinez-,  the  said  Easley  and  the  said  Gable  receiving 
certificates  of  election  to  the  office  of  member  of  the  house  of  repre- 

302  Volume  5. 


6247.  CONTEMPT.  6247. 

sentatives  of  the  legislative  assembly,  and  the  said  Romulo  Martinez 
receiving  a  certificate  to  the  office  of  member  of*  the  council  of  said 
legislative  assembly;  and  praying  that  that  court  cause  attachments 
to  issue  for  the  arrest  of  the  said  John  H.  Sloan  and  Teodoro  Martinez 
for  contempt.  Whereupon  such  proceedings  were  had  by  the  said 
court  that  on  January  20,  iS91,  after  attachments  had  been  issued 
by  said  court  against  the  said  John  H.  Sloan  and  Teodoro  Martinez, 
and  after  the  bodies  of  the  said  Sloan  and  the  said  Martinez  had  been 
presented  before  the  said  court  by  you,  the  said  sheriff,  they  being 
accompanied  by  counsel,  and  after  a  full  hearing  of  counsel,  the  said 
John  H.  Sloan  and  Teodoro  Martinez  were  adjudged  guilty  of  con- 
tempt of  this  court  in  issuing  and  delivering  a  certificate  of  election 
to  Romulo  Martinez,  and  in  making,  or  causing  to  be  made,  a  record  of 
the  result  of  their  canvass  of  the  returns  of  the  election  held  in  said 
county  of  Santa  Fe  on  the  Jfth  day  oi  November,  iS90,  and  the  punish- 
ment of  each  of  said  defendants  was  assessed  to  a  fine  oi  fifty  dollars 
for  each  of  the  said  several  contempts,  making  a  total  of  two  hundred 
dollars  against  each  of  said  defendants:  Now,  therefore,  you,  the 
said  sheriff  of  Santa  Fe  county,  are  hereby  commanded  that  of  the 
lands  and  tenements,  goods  and  chattels,  oi  John  H.  Sloan,  in  your 
county,  you  cause  to  be  made  the  sum  of  two  hundred  dollars  fine, 
and  seventeen  dollars  and  forty-five  cents  costs  of  suit,  which,  by  the 
said  judgment  of  the  said  district  court  on  the  20th  day  of  January, 
iS91,  the  territory  recovered  against  the  said  John  H.  Sloan  and  in 
default  of  the  prompt  payment  of  the  said  sum  by  the  said  John  H. 
Sloan  that  you  confine  the  body  of  the  said  John  H.  Sloan  in  the 
common  jail  of  said  county  until  said  fine  and  costs  are  fully  paid 
and  satisfied,  and  due  return  made  of  this  writ,  with  your  proceed- 
ings thereon. 

Witness  the  Honorable  Edward  P.  Seeds,  associate  justice  of  the 
supreme  court  of  the  territory  of  New  Mexico,  and  judge  of  the  first 
judicial  district  court  thereof,  and  the  seal  of  said  district  court,  this 
20th  day  oi  January,  i891. 

A.  E.  Walker,  Clerk,     (seal) 

(3)  Order  to  Pay  Money  to  Receiver. 

Form  No.  6247. 
(Precedent  in  Cartwright's  Case,  114  Mass.  237.) 

To  the  sheriff  of  our  county  of  Suffolk,  his  deputies,  and  the  keeper 
of  our  common  jail  in  Boston  in  said  county.  Greeting. 
(seal)  Whereas,  by  the  consideration  of  our  Supreme  Judicial 
Court,  holden  at  Boston,  within  and  for  our  said  county  of  Suffolk,  on 
the  second  Tuesday  of  September,  eighteen  hundred  and  seventy-three, 
John  W.  Cartwright,  of  said  Boston,  was  adjudged  to  be  guilty  of  con- 
tempt of  our  said  court,  for  having  disobeyed  an  order  made  in  a 
cause  pending  in  our  said  court  by  oneof  the  justices  thereof,  and  for 
having  unlawfully  appropriated  to  his  own  use  a  portion  of  the  assets 
of  the  Hide  &*  Leather  Insurance  Company,  one  of  the  parties  to  said 
cause,  in  the  hands  of  the  receivers  appointed  in  said  cause  by  our 
said  court,  the  said  John  W.  Cartwright  being  one  of  the  said  re- 

303  Volume  5. 


6248.  CONTEMPT.  6248. 

ceivers;  and  on  \ht  fifty- ninth  day  of  the  session  of  our  said  court, 
being  the  third  day  of  January  in  the  year  eighteen  hundred  and 
seventy-four,  was  sentenced  for  his  said  misconduct  to  suffer  imprison- 
ment in  our  said  jail  for  the  term  of  six  months,  unless  he  shall  be 
sooner  discharged  by  the  further  order  of  our  said  court: 

We  therefore  command  you,  the  said  sheriff  and  deputies,  forth- 
with to  convey  and  deliver  into  the  custody  of  the  keeper  of  our  said 
jail  the  body  of  the  said  John  W.  Cartwright.  And  you,  the  keeper 
of  our  said  jail,  are  hereby  required  to  receive  the  body  of  the  said 
John  IV.  Cartwright,  and  cause  him  to  be  confined  in  our  said  jail  for 
the  full  term  of  six  months,  unless  he  shall  be  thence  sooner  dis- 
charged by  the  further  order  of  our  said  court. 

And  for  so  doing,  this  shall  be  your  warrant.  And  you  are  to 
make  a  return  of  this  warrant,  with  your  doings  thereon,  to  the  officer 
of  the  clerk  of  the  said  Supreme  Judicial  Court  at  Boston  aforesaid. 

Witness,  Horace  Gray,  Esquire,  chief  justice  of  said  court.  Dated 
zX.  Boston  aforesaid  theM/V^day  oi  January  m  the  year  of  our  Lord 
eighteen  hundred  and  seventy-four,  and  sealed  with  the  seal  of  the 
said  court. 

George  C.  Wilde,  Clerk. 

c.  By  Canal  Commissioners. 

Form  No.  6248. 

(Precedent  in  People  v.  Learned,  5  Hun  (N.  Y.)  627.)* 

The  People  of  the  State  of  New  York  to  the  Sheriff  of  the  County  of 
Albany,  greeting: 
Whereas,  in  a  certain  investigation  of  the  affairs  of  the  canals  of 
the  State  of  New  York  pending  before  a  commission  appointed  to 
investigate  the  affairs  of  the  canals  of  the  State,  duly  appointed 
under  and  by  virtue  of  the  authority  of  the  legislature  of  the  State 
of  New  York,  one  Henry  D.  Denison  had  two  certain  contracts  with 
the  people  of  the  State  of  New  York  for  the  performance  of  work 
upon  the  canals  of  the  State,  one  of  said  contracts  being  for  the  per- 
formance of  work,  between  Port  Schuyler  and  the  lower  Mohawk 
aqueduct,  and  the  other  of  said  contracts  being  for  the  performance 
of  work  at  Utica,  from  the  eastern  limits  of  the  city  of  Utica  to  the 
junction  of  the  Chenango  canal.  And,  whereas,  the  said  commission 
was  investigating  the  subject  of  the  said  contracts  of  the  said  Henry 
D.  Denison.  And,  whereas,  the  said  Henry  D.  Denison  had  been 
duly  subpoenaed  to  attend  before  such  commission,  to  give  such 
information  touching  the  subject  of  the  inquiry  of  said  commission 
as  might  be  in  his  possession,  and  had  been  further  ordered,  by  said 
subpoena,  to  bring  with  him  before  said  commission  all  his  books  and 
papers  relative  to  his  contracts  with  the  State  to  be  performed 
between  Port  Schuyler  and  the  lower  Mohawk  aqueduct,  and  at  Utica, 
from  the  eastern  limits  of  the  city  of  Utica  to  the  junction  of  the 
Chenango  canal,  and  had  been  paid  his  fees  upon  said  subpoena. 

1.  This  commitment  was  authorized  by  N.  Y.  Laws  (1875),  c.  91,  which  act 
was  held  to  be  constitutional. 

804  Volume  5. 


6249.  CONTEMPT.  6249. 

And,  whereas,  the  said  Henry  D.  Denison  did  'appear  before  said 
commission,  said  commission  being  then  duly  organized  and  holding 
a  regular  meeting  to  investigate  the  affairs  of  the  canals  of  the 
State,  on  the  IJith  day  oi  July,  i&75,  and  did  then  and  there  admit 
and  declare  that  he  had  in  his  possession  books  and  papers  relative 
to  his  said  contracts  with  the  State  for  work  to  be  performed 
between  Por/  Schuyler  and  the  lower  Mohawk  aqueduct,  and  at  Uitca, 
from  the  eastern  limits  of  the  city  to  the  junction  of  the  Chenango 
canal,  and  did  then  and  there,  in  the  immediate  presence  of  said 
commission,  wilfully  refuse  to  produce  said  books  before  said  com- 
mission, and  to  obey  such  subpoena. 

And,  whereas,  the  said  Henry  D.  Denison  has  thus  been  guilty  of 
wilful  disobedience  of  process  lawfully  issued  by  said  commission  to 
investigate  the  affairs  of  the  canals  of  the  State,  and  of  contemptuous 
behavior  in  the  immediate  view  and  presence  of  said  commission 
during  its  sitting,  tending  directly  to  interrupt  its  proceedings  and 
impair  the  respect  due  to  its  authority. 

And,  whereas,  the  aforesaid  misconduct  of  the  said  Henry  D. 
Denison  is  calculated  to  impair  or  defeat  the  rights  of  the  State  in 
said  investigation. 

And,  whereas,  the  said  Henry  D.  Denison^  being  now  here  before 
this  commission,  has,  for  the  causes  aforesaid,  been  adjudged  guilty 
of  contempt  of  the  said  commission,  now,  therefore,  you  are  hereby 
ordered  to  take  the  body  of  the  said  Henry  D.  Denison  and  commit 
him  to  the  common  jail  of  the  county  of  Albany,  and  there  keep  him 
imprisoned  until  he  shall  have  consented  to  produce  and  shall  pro- 
duce to  and  before  this  commission  all  his  books  and  papers  relative 
to  contracts  with  the  State  for  work  to  be  performed  between  Port 
Schuyler  and  the  lower  Mohawk  aqueduct,  and  at  Utica,  from  the 
eastern  limits  of  the  city  to  the  junction  of  the  Chenango  canal,  not 
exceeding  thirty  days. 

Witness  the  hands  of  this  commission,  affixed  hereto  at  the  present 
sitting  of  this  commission  appointed  to  investigate  the  affairs  of  the 
canals  of  the  State,  at  the  capital,  in  the  city  oi  Albany,  the  IJIfih  day 
oijuly,  1 875. 

John  Bigelow. 

D.  Magone. 

A.  E.  Orr. 

John  D.  VanBuren,  Jr. 

Commissioners. 

8.  Criminal  Prosecution.^ 

1.  For  statutes  relating  to  the  punish-  Minnesota.  —  Stat.    (1894),    §§    6407, 

ment   of   contempts   as  misdemeanors  6819. 

see  as  follows:  Montana.  —  Pen.  Code  (1895),  §§  293, 

Arizona.  —  Pen.  Code  (1887),  §§  250,  1223. 

1035.  New  York.  —  Birds.  Rev.  Stat.  (1896), 

California.  —  Pen.    Code   (1897),    §§  p.  635,  §  23. 

166,  657,  658,  1331.  .    North  Dakota.  —  Rev.    Codes  (1895), 

Idaho.  —  Rev.  Stat.  (1889),  §  6529.  §§  7015,  7687. 

Michigan. — How.  Anno.  Stat.  (1882),  Oklahoma.  —  Stat.    (1893),    §§    2039, 

§  7239.  2556. 

5  E.  of  F.  P.  —  20.                          305  Volume  5. 


6249.  CONTEMPT.  6249. 

Form  No.  6249.' 

In  the  Court  of  Sessions  of  the  county  of  Albany. 

Oi  June  Term  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  seventy-four. 
City  and  County  of  Albany,  ss : 

The  jurors  for  the  people  of  the  State  oi  New  York.,  in  and  for  the 
body  of  the  City  a«</ County  oi  Albany,  being  then  and  there  sworn 
and  charged  upon  their  oath, 

Present,  That  on  the  t^venty-fifth  daj'  oi  April,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-four,  at  the  city  and 
county  aforesaid,  a  certain  writ  of  the  people  of  the  State  of  New 
York,  called  a  subpoena,  was  duly  and  lawfully  issued  and  tested 
by  and  in  the  name  of  T.  R.  Westbrook,  one  of  the  justices  of  the 
Supreme  Court  of  said  state,  on  the  day  and  at  the  city  aforesaid, 
which  said  writ  was  directed  to  Frank  R.  Sherwin,  by  the  name  of  F. 
R.  Sherwin,  and  by  which  said  writ  he  was,  in  the  name  of  said  peo- 
ple, commanded  that  laying  aside  all  pretenses  and  excuses  what- 
soever, he  appear  in  his  proper  person  before  the  Court  of  Oyer  and 
Terminer,  to  be  held  at  the  City  Hall  in  the  City  of  Albany,  in  and 
for  said  County  of  Albany,  on  the  eighteenth  day  of  May,  eighteen 
hundred  and  seventy-four,  at  three  o'clock  in  the  afternoon  of  that  day, 
then  and  there  to  testify  and  give  evidence  on  behalf  of  said  people 
concerning  a  certain  indictment  to  be  tried  in  said  court  against 
Charles  H.  Phelps  ior  grand  larceny  No.  2;  that  the  said  writ  of  sub- 
poena was  on  the  first  day  of  May,  in  the  year  of  our  Lord  one  thou- 
sand eight  hundred  and  seventy-four,  at  the  City  of  Ne7u  York,  in  the 
said  State  of  New  York,  exhibited  to  the  said  Frank  R.  Sherwin  and 
duly  served  upon  him  the  said  Frank  Sherwin,  and  a  copy  of  the 
said  writ  was  then  and  there  delivered  to  the  said  Frank  R.  Sherwin 
and  left  with  him,  who  then  and  there  had  notice  to  appear  and  give 
evidence  according  to  the  exigency  of  said  writ.  Yet  the  said  Frank 
R.  Sherwin,  continuing  and  intending  to  impede  and  obstruct  the 
due  course  of  justice,  unlawfully  and  wilfully  disobeyed  the  said  writ 

Utah.  —  Rev.   Stat.   (1898),   §§  4491,  thority   has   been    contemned,  the   ad- 

4492.  ministration  of  public  justice   assailed, 

Wisconsin. — Sanb.  &  B.  Anno.  Stat,  and  its  power  despised.     For   such  an 

(1889),  4503.  offense  the  guilty   party  may   be   pun- 

1.  This  form  is  copied  from  the  rec-  ished  by  indictment,  although  the  court 
ords  in  People  v.  Mead,  92  N.  Y.  415,  whose  order  has  been  disobeyed  may 
wherein  it  was  held  that  it  was  not  take  the  indignity  in  silence.  The 
necessary  to  the  validity  of  the  indict-  statute  has  made  such  disobedience, 
ment  that  the  accused  should  first  have  when  wilful  in  its  character,  an  offense 
been  duly  adjudged  in  contempt  by  the  against  the  people,  and  not  left  it  de- 
court  whose  process  he  disobeyed.  The  pendent  upon  the  action  or  nonaction 
two  proceedings  are  wholly  independ-  of  the  specific  judge  or  court.  The 
ent  of  each  other.  One  who  disobeys  statute  contemplates  that  both  rem- 
the  lawful  order  of  a  court  not  only  edies,  or  either,  may  be  pursued.  If 
offends  against  the  dignity  of  the  par-  the  court  has  first  moved  and  proceeded 
ticular  tribunal,  but  also  against  the  against  the  offender  by  attachment  and 
public  law.  The  particular  court  may  inflicted  punishment,  he  may  neverthe- 
pass  over  the  contempt  and  suffer  its  less  be  indicted  for  the  same  wrong, 
order  to  be  spurned,  but  the  offense  but  in  that  event  the  sentence  is  to  be 
against  the  people  remains.     Their  au-  affected  by  the  previous  punishment. 

306  Volume  5. 


6249.  CONTEMPT.  6249. 

of  subpoena,  and  did  not  appear  before  the  said  Court  of  Oyer  and 
Terminer^  holden  at  the  time  and  place  specified  in  the  said  writ  of 
subpoena,  to  testify  to  the  truth  and  give  evidence  before  the  said 
court  on  the  trial  of  said  bill  of  indictment  so  preferred  against  the 
said  Charles  H.  Phelps,  to  the  great  hindrance  and  delay  of  public 
justice,  in  contempt  of  the  court  aforesaid,  against  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  of  the 
people  of  the  State  of  New  York  and  their  dignity. 

Second  count.  And  the  jurors  aforesaid,  upon  their  oath  afore- 
said, do  further  present: 

That  on  the  twenty-fifth  day  of  April  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy-four,  at  the  city  and  county  afore- 
said, a  certain  process,  commonly  called  a  subpoena,  was  duly  and 
lawfully  issued  by  Nathaniel  C.  Moak,  the  District  Attorney  of  the 
County  of  Albany,  in  support  of  the  foreclosure  of  a  certain  indict- 
ment then  pending  in  the  Court  of  Oyer  and  Terminer  in  and  for  said 
county  against  Charles  H.  Phelps  for  grand  larceny  No.  2,  and  sub- 
scribed by  the  said  district  attorney,  and  tested  by  and  in  the  name 
of  T.  R.  Westbrook,  one  of  the  justices  of  the  Supreme  Court  of  said 
State,  on  the  day  and  at  the  city  aforesaid,  which  said  process  of  sub- 
poena was  directed  to  Frank  R.  Sherwin,  by  the  name  of  F.  R.  Sher- 
win,  and  by  which  said  process  of  subpoena  he  was,  in  the  name  of  the 
people  of  the  State  of  New  York,  commanded  that,  laying  aside  all 
pretenses  and  excuses  whatsoever,  he  appear  in  his  proper  person  be- 
fore the  Court  of  Oyer  and  Terminer  to  be  held  at  the  City  fTall  in  the 
City  of  Albany,  in  and  for  said  County  of  Albany,  on  the  eighteenth  day 
of  May,  eighteen  hundred  and  seventy-four,  at  three  o'clock  in  \\\&after- 
noonof  that  day,  then  and  there  to  testify  and  give  evidence  on  behalf 
of  said  people  concerning  a  certain  indictment  to  be  tried  in  said  court 
against  Charles  H.  Phelps  for  grand  larceny  No.  2;  that  the  said  process 
of  subpoena  was,  on  \\\t  first  day  of  May,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  seventy-four,  at  the  City  of  New  York,  in 
the  said  State  of  Neiv  York,  exhibited  to  the  said  Frank  R.  'Sherwin, 
and  duly  served  upon  him,  the  said  Frank  R.  Sherwin,  and  a  copy  of 
the  said  subpoena  was  then  and  there  delivered  to  the  said  Frank  R. 
Shenvin,  and  left  with  him,  who  then  and  there  had  notice  to  appear 
and  give  evidence  according  to  the  exigency  of  said  process  of  sub- 
poena. Yet  the  said  Frank  R.  Sherwin,  contriving  and  intending  to 
impede  and  obstruct  the  due  course  of  justice,  unlawfully  and  wil- 
fully disobeyed  the  said  process  of  subpoena,  and  did  not  appear 
before  the  said  Court  of  Oyer  and  Terminer  holden  at  the  time  and 
place  specified  in  the  said  process  of  subpoena,  to  testify  to  the  truth 
and  give  evidence  before  the  said  court  on  the  trial  of  said  bill  of 
indictment  so  preferred  against  the  said  Charles  H.  Phelps,  to  the 
great  hindrance  and  delay  of  public  justice  in  contempt  of  the  court 
aforesaid,  against  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  of  the  people  of  the  State  of  New  York 
and  their  dignity. 

Nathaniel  C.  Moak,  District  Attorney. 
307  Volume  5. 


6250.  CONTEMPT.  6251. 

II.  CONTEMNOR'S  DEFENSES  AND  REMEDIES. 

1.  Answers. 

a.  To  Rule  to  Show  Cause  op  Attachment.' 

Form  No.  6250. 

(Precedent  in  In  re  Ayers,  123  U.  S.  456.)' 

Answer  of  Defendant,  R.  A.  Ayers. 

The  answer  of  R.  A.  Ayers,  Attorney-General  of  the  State  of  Vir- 
ginia, to  a  rule  awarded  against  him  by  this  honorable  court. 
To  the  Honorable  Judge  of  the  Circuit  Court  of  the   United  States 
for  the  Eastern  District  of  Virginia: 

By  an  order  entered  in  the  chancery  cause  oi  James  P.  Cooper 
et  als.  against  Morton  Marye  and  others,  summoning  him  to  show 
cause  why  he  should  not  be  fined  and  imprisoned  for  disobeying  the 
injunction  heretofore  awarded  in  said  suit,  restraining  him  and  others 
from  instituting  the  suits  required  by  an  act  of  the  General  Assembly 
of  Virginia,  entitled  "  An  act  to  provide  for  the  recovery  by  motion 
of  taxes  and  certain  debts  due  the  Commonwealth,  for  the  payment  of 
which  papers  purporting  to  be  genuine  coupons  of  the  Common- 
wealth have  been  tendered,"  approved  May  12,  1887,  by  instituting 
a  suit  against  the  Baltimore  and  Ohio  Railroad  Co.,  respondent, 
answering,  says  that  he  admits  that  he  instituted  the  suit  against  the 
Baltimore  and  Ohio  Railroad  Company  to  recover  taxes  due  by  it  to 
the  State  of  Virginia  after  he  had  been  served  with  the  injunction 
order  in  this  case ;  that  he  instituted  the  said  suit  because  he  was  there- 
unto required  by  the  act  of  the  General  Assembly  of  Virginia  afore- 
said, and  because  he  believed  this  court  had  no  jurisdiction  whatever 
to  awarded  the  injunction  violated.  Respondent  disclaims  any 
intention  to  treat  the  court  with  disrespect,  and  states  that  he 
has  been  actuated  alone  with  the  desire  to  have  the  law  properly 
administered. 

R.  A.  Ayers,  Att'y-Gen'l  of  Virginia. 

Subscribed  and  sworn  to  before  me  this  8th  day  of  October,  iS87. 

M.  F.  Pleasants,  Clerk. 

b.  To  Interrogatories. 

Form  No.  6251.' 

{Title  of  court  and  cause  as  in  Form  No.  622 J^.') 

The  defendants  herein,  except  defendant  Richard  S.  Roberts,  sever- 

1.  See  also  various  forms  of  answers  orders  forbidding  the  suits,  for  bring- 
in  the  following  cases:  Martin  v.  Burg-  ing  which  defendants  are  charged  with 
wyn,  88  Ga.  78;  Shirk  v.  Cox,  141  Ind.  contempt,  they  were  not  guilty  of 
301;  Haskett  v.  State,  51  Ind.  176;  contempt.  See  also,  in  regard  to  want 
Whittem  v.  State,  36  Ind.  196;  Winslow  of  jurisdiction  as  a  defense.  People  v. 
V.  Nayson,  113  Mass.  411;  In  re  Robin-  O'Neil,  47  Cal.  109;  Brown  v.  Moore, 
son,  117  N.  Car.  535;  Boyett  v.  61  Cal.  432;  State  v.  Smithers,  14  Kan. 
Vaughan,  89  N.  Car.  27;  Young  v.  629;  Matter  of  Morton,  10  Mich.  208; 
Cannon,  2  Utah  577.  Forrest  v.  Price,  52   N.  J.  Eq.  16;   Hol- 

2.  It  was  held  in  this  case  that  as  the     man  v.  Austin,  34  Tex.  668. 

circuit  court  had  no  power  to  make  the        3.  This  form  is  copied  from  the  record 

308  Volume  5. 


6251.  CONTEMPT.  6251. 

ally  claiming  and  protesting  that  the  facts  hereby  declared  by  the 
answer  to  the  interrogatories  propounded  to  them  under  the  order  of 
this  court,  made  and  entered  on  the  ninth  day  oi  January,  iS82,  con- 
stitute no  contempt  of  court,  each  for  himself  answers  said  interroga- 
tories as  follows: 

To.  the  First  Interrogatory.  I  was,  on  the  yfrj/  day  of  January, 
1&81,  to  and  including  the  thirty-first  day  of  December,  i8Sl,  one  of 
the  aldermen  of  the  city  of  Brooklyn;  and  I,  said  William  Dwyer,  was 
elected  as  such  in  the  second  wdivd;  and  I,  the  said  John  McCarthy, 
was  elected  as  such  in  the  fifth  ward ;  and  I,  the  said  James  Kane, 
was  elected  as  such  in  the  sixth  ward;  and  I,  the  said  James  Weir, 
Jr.,  was  elected  as  such  in  the  eighth  ward;  and  I,  the  said  Daniel 
O  Connell,  was  elected  as  such  in  the  ninth  ward;  and  I,  the  said 
Philip  Casey,  was  elected  as  such  in  the  tenth  ward;  and  I,  the  said 
James  Donovan,  was  elected  as  such  in  the  twelfth  ward ;  and  I,  the 
said  William  J.  LePine,  was  elected  as  such  in  the  thirteenth  ward; 
and  I,  the  said  Felix  W.  Doyle,  was  elected  as  such  in  the  fourteenth 
ward ;  and  I,  the  said  l^illiam  Allison,  was  elected  as  such  in  the 
fifteenth  ward;  and  I,  the  said  Philip  Schmitt,  was  elected  as  such 
in  the  sixteenth  ward;  and  I,  the  said  William  H.  Waters,  was 
elected  as  such  in  the  seventeenth  ward;  and  I,  the  said  Thomas 
Bowers,  was  elected  as  such  in  the  eighteenth  ward;  and  I,  the  said 
Benjamin  B.  Seaman,  was  elected  as  such  in  \^e  twenty-third ^2lx(S.', 
and  I,  the  said  Patrick  Kelly,  was  elected  as  such  in  the  twenty- 
fourth  ward;  and  I,  the  said  Thomas  Armitage,  was  elected  as  such 
in  the  twenty-fifth  ward. 

I  was,  during  the  time  mentioned  in  said  interrogatory,  a  member 
of  the  common  council  of  the  city  of  Brooklyn. 

To  the  Second  Interrogatory.  I  was  so  served,  and  in  the  manner 
specified  in  said  second  interrogatory. 

To  the  Third  Interrogatory.  It  was  not.  When  such  adjourn- 
ment was  made  on  December  27th,  iS81,  1  had  formed  no  purpose 
upon  the  subject.  I  had  not  then  determined  how  I  should  vote  if 
said  resolution  should  be  at  said  adjourned  meeting  put  upon  its 
passage.    Nor  did  I  know  that  it  would  be  then  put  upon  its  passage. 

To  the  Fourth  Interrogatory.    Not  to  my  knowledge. 

To  the  Fifth  Interrogatory.  I  did  attend  said  meeting,  and  it  was 
held  at  ten  o'clock  in  the /icr^noon  of  said  thirty-first  day  of  December, 
\%81. 

To  the  first  paragraph  of  the  Sixth  Interrogatory.  There  was  a 
motion  made  to  take  from  the  table  a  communication  from  the  mayor, 
disapproving  such  a  resolution,  by  William  Dwyer. 

To  the  second  paragraph  of  the  said  Sixth  Interrogatory.  Such 
communication  was  the  disapproval  by  the  mayor  of  such  a  resolution. 

To  the  paragraph  of  the  Seventh  Interrogatory.  There  was  a  motion 
made  to  adopt  said  resolution  by  William  Dwyer. 

To  the  paragraph  of  said  Seventh  Interrogatory.  Said  resolution 
received  a  two-thirds  vote,  and  I  voted  in  the  affirmative  on  its  adop- 

in  the  case  of  People  v.  Dwyer,  90  N.  6224.  For  other  answers  to  interroga- 
Y.  402.  For  the  interrogatories  to  which  tories  see  Stuart  v.  People,  4  111.  395; 
this  is  the  answer  see  supra.  Form  No.     People  v.  Pearson,  4  III.  270. 

309  Volume  5. 


6252.  CONTEMPT.  6252. 

tion,  and  each  of  the  persons  named  as  defendant  herein  voted  in  the 
affirmative,  seventeen  in  all. 

To  the  Eighth  Interrogatory,  Such  motion  was  made  and  was  lost. 
I  voted  in  the  negative  on  said  motion,  and  each  of  the  persons  named 
as  defendant  herein  so  voted. 

James  Kane  {and  signature  of  fourteen  others.') 
State  of  New  York,  ) 
County  of  Kings,      >  ss. 
City  of  Brooklyn.      ) 

William  Dwyer,  John  McCariy,  James  Kane,  James  Weir,  Jr.,  Daniel 
O'Connell,  Philip  Casey,  James  Donovan,  William  J.  LePine,  Felix  W. 
Doyle,  William  Allison,  Philip  Schmitt,  William  H.  Waters,  Thomas 
Bowers,  Benjamin  B.  Seaman,  Patrick  J.  Kelly  and  Thomas  R.  Armitage, 
being  duly  severally  sworn,  each  for  himself  respectively  deposes  and 
says,  that  he  is  one  of  the  defendants  in  the  above  entitled  proceed- 
ings, and  that  the  foregoing  answers  (by  him  signed)  to  the  several 
interrogatories  propounded  to  him  in  said  proceedings  are  true  to  the 
best  of  his  knowledge  and  belief. 

James  Kane  (and  signature  of  fourteen  others.) 

Severally  sworn  to  before  mt,  January  10th,  \%82. 

William  M.  Summers, 
Notary  Public,  Kings  Co.,  N.  Y. 

2.  Petition  for  Revocation  of  Order  of  Commitment.^ 

Form  No.  6252. 

(Precedent  in  Ex  p.  Terry,  128  U.  S.  299.)' 

In  the  Circuit  Court  of  the  United  States,  Ninth  Circuit,  Northern 
District  of  California. 

In  the  Matter  of  Contempt  of  David  S.  Terry. 
To  the  Honorable  Circuit  Court  aforesaid : 

The  petition  of  David  S.  Terry  respectfully  represents: 

That  all  the  matters  and  transactions  occurring  in  the  said  court 
on  the  3d  day  of  September,  inst.,  upon  which  the  order  in  this  matter 
was  based,  your  petitioner  did  not  intend  to  say  or  do  anything  dis- 
respectful to  said  court  or  the  judges  thereof,  or  to  any  one  of  them; 
that  when  petitioner's  wife,  the  said  Sarah  Althea  Terry,  first  arose 
from  her  seat,  and  before  she  uttered  a  word,  your  petitioner  used 
every  effort  in  his  power  to  cause  her  to  resume  her  seat  and  remain 
quiet;  and  he  did  nothing  to  encourage  her  in  her  acts  of  indis- 
cretion; when  this  court  made  the  order  that  petitioner's  wife  be 
removed  from  the  court-room,  your  petitioner  arose  from  his  seat 
with  the  purpose  and  intention  of  himself  removing  her  from  the 
court-room,  quietly  and  peaceably,  and  had  no  intention  or  design 
of  obstructing  or  preventing  the  execution  of  the  said  order  of  the 
court;  that  he  never  struck  or  offered  to  strike  the  United  States 
marshal  until  the  said  marshal  had  assaulted  himself,  and  had  in  his 

1.  See  also  a  form  in  Tolleson  v.  this  petition,  or  any  other  relief,  and 
People's  Sav.  Bank,  85  Ga.  176.  an   application    for   a   writ   of   habeas 

2.  The  circuit  court  declined  and  corpus  was  denied  by  the  supreme 
refused  to  grant  the  relief  prayed  for  in  court. 

810  Volume  5. 


6253.  CONTEMPT.  6253. 

presence  violently,  and,  as  he  believed,  unnecessarily,  assaulted  peti- 
tioner's wife. 

Your  petitioner  most  solemnly  avers  that  he  neither  drew  or 
attempted  to  draw  any  deadly  weapon  of  any  kind  whatever  in  said 
court-room,  and  that  he  did  not  assault  or  attempt  to  assault  the 
United  States  marshal  with  any  deadly  weapon  in  said  court-room  or 
elsewhere. 

And  in  this  connection  he  respectfully  represents  that  after  he  had 
left  said  court-room  he  heard  loud  talking  in  one  of  the  rooms  of  the 
United  States  marshal,  and  among  the  voices  proceeding  therefrom 
he  recognized  that  of  his  wife,  and  he  thereupon  attempted  to  force 
his  way  into  said  room  through  the  main  office  of  the  United  States 
marshal;  the  door  of  this  room  was  blocked  with  such  a  crowd  of 
men  that  the  door  could  not  be  closed;  that  your  petitioner  then  for 
the  first  time  drew  from  inside  his  vest  a  small  sheath  knife,  at  the 
same  time  saying  to  those  standing  in  his  way  in  said  door,  that  he 
did  not  want  to  hurt  any  one;  that  all  he  wanted  was  to  get  in  the 
room  where  his  wife  was;  the  crowd  then  parted,  and  your  petitioner 
entered  the  doorway,  and  there  saw  a  United  States  marshal  with  a 
revolver  in  his  hand  pointed  to  the  ceiling  of  the  room;  some  one 
then  said,  "  Let  him  in,  if  he  will  give  up  his  knife,"  and  your  peti- 
tioner immediately  released  hold  of  the  knife  to  some  one  stand- 
ing by. 

In  none  of  these  transactions  did  your  petitioner  have  the  slightest 
idea  of  showing  any  disrespect  to  this  honorable  court  or  any  of  the 
judges  thereof. 

That  he  lost  his  temper  he  respectfully  submits,  was  a  natural  con- 
sequence of  himself  being  assaulted  when  he  was  making  an  honest 
effort  to  peacefully  and  quietly  enforce  the  order  of  the  court  so  as 
to  avoid  a  scandalous  scene,  and  of  seeing  his  wife  so  unnecessarily 
assaulted  in  his  presence. 

Wherefore  your  petitioner  respectfully  requests  that  this  honorable 
court  may,  in  the  light  of  the  facts  herein  stated,  revoke  the  order 
made  herein  committing  him  to  prison  for  six  months. 

And  your  petitioner  will  ever  pray,  etc. 

Dated  September  12,  i888. 

[David  S.  Terry. y 

[{Verijication.y]^ 

3.  Order  Dischargfingf  from  Imprisonment. 

Form  No.  6253. 

(Precedent  in  Ex  p.  Ireland,  38  Tex.  350.) 

The  State  of  Texas. 

To  the  District  Court  of  Guadalupe  County,  and  John  F.  Gordon, 

Sheriff  of  said  County,  greeting: 

1.  The  signature  of  the  petitioner  does  but  the  verification  is  omitted  from  the 
not  appear  in  the  reported  case,  but  has  reported  case.  For  the  form  of  a  veri- 
been  added  to  render  the  form  complete,  fication  in  a  particular  jurisdiction  con- 

2.  This   petition   was  duly    verified,  suit  the  title  Verifications. 

811  Volume  5. 


6254.  CONTEMPT.  6254. 

Before  our  Supreme  Court  on  the  ninth  day  oi  May^  i873,  the  appli- 
cants, upon  petition  for  habeas  corpus,  in  the  case  oi  Ex  parte  John 
Ireland,  IV.  P.  H.  Douglass,  John  P.  White,  IV.  M.  Rust,  W.  E.  Good- 
rich, W.  H.  Burgess  and  Alex.  Henderson,  to  revise  or  reverse  your 
judgment  in  relation  to  said  parties  was  determined,  and  therein  our 
Supreme  Court  made  its  order  in  these  words: 

"No.  1085.  This  day  came  the  sheriff  of  Guadalupe  county,  in 
obedience  to  the  writ  awarded  in  this  cause,  and  brought  with  him 
the  prisoners,  John  Ireland,  W.  P.  H.  Douglass,  John  P.  White,  W.  M. 
Rust,  W.  E.  Goodrich,  W.  H.  Burgess,  and  Alex.  Henderson,  and 
having  made  his  return  writ,  George  F.  Moore  and  W.  M.  Walton, 
Esquires,  appeared  in  behalf  of  the  applicants,  and  ^.  Trigg,  Esquire, 
District  Attorney  Twenty-seventh  Judicial  District,  appeared  in  behalf 
of  the  State;  and  the  petition  of  the  appellants,  the  writ  and  return, 
with  the  evidence  introduced,  having  been  submitted  to  the  court, 
because  it  appears  to  this  court  that  said  applicants  are  illegally 
restrained  of  their  liberty;  it  is  ordered  by  the  court,  that  they  be 
discharged  from  the  custody  of  the  sheriff  of  Guadalupe  county,  and 
that  they  be  restored  to  their  liberty;  and  this  decision  be  certified 
below  for  observance." 

Wherefore  we  command  you  to  observe  the  order  of  our  said  Supreme 
Court  in  this  behalf,  and  in  all  things  to  have  it  duly  recognized, 
obeyed  and  executed. 

Witness  the  Hon.  Lemuel  D.  Evans,  Presiding  Judge  of  our  said 
Supreme  Court,  with  the  seal  thereof  annexed,  at  Austin,  this  ninth 
day  of  May,  a.  d.  i87^. 

(seal)  W.  p.  De  Normandie,  Clerk. 

4.  Pardon. 

Form  No.  6254. 

(Precedent  in  Ex  p.  Hickey,  4  Smed.  &  M.  (Miss.)  753.) 

Albert  G.  Broum,  Governor  of  the  State  of  Mississippi. 
To  the  Sheriff  of  Warren  County,  Greeting: 

Whereas  it  appears  from  a  certified  copy  of  certain  proceedings 
had  in  the  circuit  court  of  the  county  of  Warren  in  this  state,  to  wit, 
on  the  SOth  October,  i8.|^,  that  Walter  Hickey  was  by  the  order  and 
sentence  of  the  presiding  judge  of  said  court,  committed  to  jail  for 
jive  months,  and  fined  in  the  sum  oi  five  hundred  dollars,  and  directed 
to  be  detained  in  prison  until  said  fine  and  costs  be  paid,  for  an 
alleged  contempt  of  court;  and  whereas  it  appears  from  the  proceed- 
ings aforesaid,  that  said  contempt  consisted  in  certain  newspaper 
publications  made  by  said  Walter  Hickey,  on  the  10th  oi  June,  iZJ^Jf, 
and  not  alleged  to  have  been  in  any  wise  done  or  committed  in  the 
presence  of  said  court,  or  in  its  hearing,  and  whereas,  by  the  26th 

1.  It  was  held  in  this  case  that  under  treason    and   impeachment,"    he    had 

the   constitution   of   the  state   of  Mis-  power  to  pardon  a  contempt  committed 

sissippi  conferring  upon    the  governor  against  a  circuit  court,  and  to  release 

"  power   to   grant   reprieves   and   par-  and  remit  the  sentence  of  fine  and  im- 

dons,  and  to  remit  fines  in  all  criminal  prisonment  inflicted  upon  the  offender, 
and    penal   cases,    except   in  those   of 

813  Volume  5. 


6255.  CONTEMPT.  6255. 

section  of  the  circuit-court  law  of  this  state,  page  486,  (How.  & 
Hutch.  Digest,)  "the  said  court  shall  have  power  to  fine  and  imprison 
any  person  who  may  be  guilty  of  a  contempt  of  the  court,  while  sit- 
ting either  in  the  presence  or  hearing  of  such  court,  provided  that 
such  fine  shall  not  exceed  one  hundred  dollars,  and  no  person  for 
such  contempt  shall  be  imprisoned  for  a  longer  period  than  the  term 
of  the  court  at  which  the  contempt  shall  have  been  committed." 
And  whereas  it  now  appears  that  the  said  Walter  Hickey  has  been 
committed  for  a  longer  period  than  the  term  of  the  court,  fined  in  a 
greater  sum  than  one  hundred  dollars  for  an  offense  not  alleged  to 
have  been  committed  in  the  presence  or  hearing  of  said  court,  nor 
during  the  sitting  of  said  court,  and  this  at  a  term  subsequent  to  that 
at  which  the  offense  was  said  to  have  been  committed;  and  whereas 
there  is,  in  this  proceeding  an  exercise  of  judicial  power  over  the 
liberty  and  property  of  the  citizen,  not,  as  I  conceive,  warranted  by 
the  constitution  and  laws  of  the  land;  and  whereas  a  large  number 
of  citizens  have  appealed  to  me  to  interpose  the  executive  clemency 
in  this  case;  now,  therefore,  I,  Albert  G.  Brown,  Governor  of  the 
State  of  Mississippi,  by  virtue  of  the  power  in  me  vested,  by  the  loth 
section  of  the  fifth  article  of  the  constitution,  do  grant  to  the  said 
Walter  Hickey,  a  full  and  free  pardon,  and  do  moreover  direct  the 
sheriff  of  Warren  county  forthwith  to  set  him  at  liberty. 

Given  under  my  hand,  and  attested  by  the  great  seal  of  the  state, 
at  the  city  oi  Jackson,  November  the  18th,  i8.44- 

A.  G.  Brown. 

(seal)  By  the  Governor, 

William  Hemingway,  Secretary  of  State. 

5.  Writ  of  Prohibition  Forbidding:  Commitment. 

Form  No.  6255. 
(Precedent  in  People  v.  Mayer,  71  Hun  (N.  Y.)  183.)* 

In  the  name  of  the  People  of  the  State  of  New  York. 
To  Alexander   U.  Mayer,  Esq.,   a   commissioner  appointed   by  the 
Superior  Court  of  the  city  of  Baltimore: 

Whereas,  It  doth  appear  to  our  Supreme  Court  of  the  State  of 
New  York  that  you,  as  commissioner  appointed  by  the  Superior 
Court  of  the  city  of  Baltimore,  are  about  to  issue  a  process  for  con- 
tempt against  one  of  the  citizens  of  our  said  State  of  Netv  York,  by 
name  Daniel  S.  Toy,  for  refusal  to  answer  certain  interrogatories 
proposed  by  you,  as  such  commissioner,  to  the  said  Daniel  S.  Toy, 
and  whereas,  it  further  appears  that  said  Daniel  S.  Toy  is  a  minister 
of  the  gospel  and  clergyman  of  the  Baptist  c\\\xxQ.\i;  and  whereas,  it 

1.  It  was  held  in  this  case  that  when  mitting  the  relator  to  prison  for  refus- 
a  hearing  upon  the  merits  has  been  had  ing  to  answer  interrogatories  calling 
upon  the  return  of  an  order  to  show  for  the  disclosure  of  a  privileged  corn- 
cause  why  a  writ  of  prohibition  should  munication,  and  it  appears  that  only  a 
not  issue  to  prevent  a  commissioner  ap-  question  of  law  is  involved,  it  is  proper 
pointed  by  a  court  of  another  state  to  issue  a  peremptory  writ  instead  of  an 
from    oppressively  and  illegally  com-  alternative  writ. 

313  Volume  5. 


6255.  CONTEMPT.  6255. 

further  appears  to  our  Supreme  Court  of  the  State  of  New  York  that 
the  declarations,  if  any,  were  made  in  the  nature  of  a  confession  to 
the  said  Daniel  S.  Toy,  as  such  minister  of  the  gospel  under  a  course  of 
discipline  prescribed  by  the  Baptist  church,  to  which  religious  body 
the  said  Rev.  Daniel  S.  Toy  belongs. 

Now,  therefore,  we  command  you,  Alexander  U.  Mayer,  as  such 
commissioner,  appointed  by  the  Superior  Court  of  the  city  of  Balti- 
more, that  you  do  refrain  from  issuing  any  commitment  for  contempt 
or  from  doing  any  act  to  compel  the  said  Daniel  S.  Toy  to  answer 
such  interrogatory,  or,  in  any  way,  interfere  with  the  liberty  of  said 
Daniel  S.  Toy. 

In  witness  whereof  we  have  hereunto  affixed  the  seal  of  our 
Supreme  Court  this  11th  day  of  February,  i89S. 

(seal)  y^  O.Dykman,  J.  ^S.  C. 

814  Volume  5. 


CONTINUANCES    AND    ADJOURN- 
MENTS. 

By  Charles  C.  Moore. 

I.  Notice  of  Motion  for  continuance,  316. 
II.  Motion  for  continuance,  316. 

III.  Affidavit  for  continuance,  317. 

1.  For  Want  of  Preparation^  317. 

a.  For  Public  Excitement  and  Prejudice^  319. 

3.  For  Absence  of  Counsel,  320. 

a.  In  General,  320. 

b.  Associate  Counsel,  321. 

c.  In  Attendatue  upon  Legislature,  323. 

(i)  By  Party,  323. 

(2)  By  Attorney,  324. 

(3)  By  Agent,  326. 

4,  For  Absence  of  Party,  327. 

a.  Needed  as  a  Witness,  327. 

b.  Needed  for  Assistance  and  Advice,  328. 
6.  For  Absence  of  Witness,  331. 

a.  In  General,  331. 

b.  Precedents,  358. 

6.  For  Absence  of  Documents,  ^o^. 

1.   On  Account  of  Another  Suit  Pending,  406. 

8.  For  Surprise  at  Trial,  407. 

a.  By  Amendment  of  Pleadings,  ^o"]. 

b.  By  Suppression  of  Deposition,  410. 

c.  By  Forged  Written  Evidence,  41 1. 

9.  Additional  or  Amended  Affidavit,  412. 

IV.  Certificate  of  Physician,  413. 

V.  Stipulation  for  Continuance,  414. 

1.  In  General,  414. 

«.  In  Justice  s  Court,  414. 

VI.  counter  Affidavits,  414. 
VII.  order  of  Continuance,  416. 
VIII.  Order  Setting  aside  order  for  Continuance,  417. 

IX.  adjournments,  418. 
1.  In  General,  418. 
8.  Directing  Clerk  to  Adjourn,  419. 

a.  Generally,  419. 

b.  By  Mail,  419. 

c.  By  Telegram,  420. 

8.  Justice  s  Docket  Entry,  420. 

816  Volume  5. 


6256.  CONTINUANCES  AND  6258. 

CROSS-REFERENCES. 

See  the  GENERAL  INDEX  to  this  work. 

For  matters  of  Procedure  and  Practice  relating  to  CONTINUANCES^ 

generally,  see  4  Encyclopedia  of  Pleading  and  Practice, 

p,  822  et  seq. 

I.  NOTICE  OF  MOTION  FOR  CONTINUANCE.^ 
Form  No.  6256. 

To  Jeremiah  Mason,  Esq.,  Attorney  for  Defendant: 

Take  notice,  that  upon  an  affidavit,  of  which  the  within  is  a  copy, 

a  motion  will  be  made  on  the  first  day  of  the  next   term  of  said 

court,  to  be  held  at  the  Court-house,  in  Charlottesville,  in  said  county, 

on  the  t7velfih  day  of  April,  i898,  for  a  continuance  of  said  cause. 

Dated  April  1st,  iS98. 

Oliver  Ellsworth,  Attorney  for  Plaintiff, 

II.  MOTION  FOR  Continuance.^ 

Form  No.  6257.' 
In  the  District  Court  in  and  for  Harrison  county,  Iowa. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

Comes  now  the  plaintiff  (or  defendant)  in  the  above  entitled  cause 
and  moves  the  court  to  postpone  and  continue  the  trial  of  said  cause 
until  the  next  term  of  this  court  (or  until  Thursday,  the  first  day  of 
March,  A.  D.  1888),  upon  affidavits  filed  herewith  (or  attached  hereto) 
and  made  a  part  hereof. 

Oliver  Ellsworth, 
Attorney  for  Plaintiff  (or  Defendant). 

Form  No.  6258. 

(Precedent  in  State  v.  Maddox,  117  Mo.  670.) 

\_The  State  of  Missouri )  ^^  ^^^    ^.^^^.^  ^^^^^   ^^   ^^^^^^   ^^^^^^^ 

nr     ^^^^^}\jj     1       C  Missouri.     April  Term,  i892. 

Morgan  Maddox.]        )  ^  ' 

The  defendant,  Morgan  Maddox,  comes  and  moves  the  court   to 

1.  Notices  of  motions,  for  forms  of,  lion.  Puterb.  PI.  and  Pr.  at  Com. 
generally,  consult  the  title  Motions.  Law  (6th  ed.),  p.  755.  But  the  applica- 
Motions  for  continuance  are  usually  tion  is  almost  invariably  made  by  oral 
made  without  notice.  Estee's  PI.  and  motion,  except  in  the  rare  instances 
F.  (2d  ed.),  p.  240.  where  a  rule  of  court  requires  it  to  be 

2.  Necessity  for  Motion.  —  Unless  a  in  writing.  The  motion  is  sometimes 
cause  is  continued  by  consent  or  by  incorporated  in  the  affidavit.  See  for 
operation  of  law,  a  party  is  not  en-  illustration  Forms  Nos.  6258,  6283, 
titled  to  a  continuance  without  making  6302,  and  precedent  in  note  4,  p.  398. 

a   motion  therefor.     4   Encycl.    of    PI.         For  formal  parts  of  motions,   gener- 
and  Pr.,  p.  870.  ally,  consult  the  title  Motions. 

Oral  or  in  Writing.  —  It  is  said  to  be  3.  Precedent  of  such  a  motion  may  be 
the  better  practice  to  file  a  written  mo-     found  in  State  v.  Foster,  79  Iowa  731. 

316  Volume  5. 


6259. 


AD  JO  URNMENTS. 


6259. 


grant  him  a  continuance  in  this  cause  to  the  nqxt  term  of  this  court, 
and  as  the  grounds  for  this  motion  states  the  following: 

First.  (^Here  were  set  out  the  facts  showing  grounds  for  continuance  on 
account  of  the  absence  of  counsel.y- 

Second.  (^Here  -luere  set  out  facts  showing  grounds  for  continuance  on 
account  of  the  absence  of  a  material  witness^ 

Morgan  Maddox. 
State  of  Missouri,  \ 
County  of  Shelby.  \ 

Morgan  Maddox,  the  above  named  defendant,  being  duly  sworn,  on 
his  oath  states,  that  the  facts  stated  in  the  foregoing  application  for 
a  continuance  are  true. 

Morgan  Maddox. 

Subscribed  and  sworn  to  before  me  this  September  5,  \W2. 

Prank  Dimmitt,  Clerk. 


ss. 


III.  AFFIDAVIT^  FOR  CONTINUANCE. 

1.  For  Want  of  Preparation.* 

Form  No.  6259. 

(Precedent  in  Howell  v.  State,  5  Ga.  49.)* 
[( Title  of  court  and  cause,  venue  and  commencement  as  in  Form  No. 


1.  For  forms  of  affidavits  for  con- 
tinuance for  absence  of  counsel  see 
infra.  Forms  Nos.  6261  to  6269. 

2.  For  affidavits  of  continuance  for 
absence  of  witness  see  infra.  Forms 
Nos.  6272  to  6298. 

3.  For  the  formal  parts  of  affidavits, 
generally,  consult  the  title  Affidavits, 
vol.  I,  p.  548. 

Necessity  for  Affidavit.  —  See  4  Encycl. 
of  PI.  and   Pr.  873. 

Who  may  Hake  Affidavit.  —  The  affida- 
vit is  ordinarily  made  by  the  applicant, 
but  may  properly  be  made  by  an  at- 
torney, or  other  person  who  has  the 
requisite  knowledge.  4  Encycl.  of  PI. 
and  Pr.  875. 

In  Duberly  v.  Gunning,  i  Peake  N. 
P.  (ed.  1795),  p.  97,  the  case  was  con- 
tinued on  an  affidavit  by  the  defendant's 
attorney  stating  that  the  absent  wit- 
ness was  material  and  necessary. 

In  Sullivan  v.  Magill,  i  H.  Bl.  637, 
it  was  held  that  the  court  will  not  re- 
ceive the  affidavit  of  an  attorney's 
clerk  to  put  off  a  trial  unless  it  be 
stated  that  the  clerk  was  particularly 
acquainted  with  the  circumstances  of 
the  case  and  had  the  management  of  it. 

In  Hunter  v.  Kennedy,  i  Dall.  (Pa.) 
81,  and  Jackson  v.  Mason,  i  Dall. 
(Pa.)  135.  continuances  were  granted 
on   the   affidavits  of  strangers  to   the 


record,  who  had,  however,  an  interest 
in  the  suit. 

See  further,  as  to  proper  parties  to 
make  an  affidavit,  infra,  note  i,  p.  318, 
note  2,  p.  320,  note  3,  p.  325,  note  i, 
p.  327,  note  I,  p.  332,  note  2,  p.  352, 
note  2,  p.  360,  note  3,  p.  362,  note  i,  p. 
364,  note  I,  p.  371,  note  i,  p.  372,  note 
I,  p.  374;  Form  No.  6288;  precedents  in 
note  I,  p.  377;  Form  No.  6293;  note  2, 

P-  391- 

Affidavit  shotild  be  entitled  in  the 
proper  cause.  Adams  Express  Co.  v. 
Reno,  48  Mo.  264;  Irroy  v.  Nathan,  4 
E.  D.  Smith  (N.  Y.)  68. 

4.  Want  of  preparation  as  a  ground  for 
continuance,  see  4  Encycl.  of  PI.  and 
Pr.  833  et  seq.\  Brooks  v.  Com.,  (Ky. 
1896)  37  S.  W.  Rep.  1043. 

5.  The  indictment  charged  the  offense 
to  have  been  committed  on  the  twenty- 
first  day  of  April,  and  the  indict- 
ment was  returned  three  days  later. 
The  defendant  was  put  on  trial  on 
the  twenty-fifth  day  of  the  same 
month.  Though  other  grounds  for 
continuance  were  united  with  that 
of  want  of  preparation,  the  affidavit 
made  sufficient  showing  by  stating  the 
facts  given  in  the  text.  The  particularity 
exacted  in  affidavits  of  this  kind  might 
lead  the  careful  practitioner  to  expand 
the  affidavit  by  asserting  the  innocence 


817 


Volume  5. 


6259. 


CONTINUANCES  AND 


6259. 


628Ji)  that  he  is  the  defendant^  in  the  above  entitled  cause,  ]2  that  he 
is  not  ready  for  trial  because  of  his  close  confinement  in  custody 
since  the  commission  of  the  crime  imputed  to  him,  and  that  he  has 
not  been  able  to  subpoena  witnesses  or  procure  testimony  material 
for  his  defense;  that  the  bill  was  returned  into  court  on  yesterday, 
that  he  has  not  been  advised  sufficiently  long  as  to  what  offense  would 
be  imputed  to  him;  that  he  cannot  go  safely  to  trial  until  he  can  col- 
lect and  prepare  his  testimony,  which  he  has  not  been  enabled  to  do 
at  the  present  term  of  the  court^  *  *  *4  (-h^t  ^g  does  not  make 
this  showing  for  delay,  but  for  the  purpose  of  getting  a  fair  trial 


of  defendant,  and  declaring  that  there 
were,  in  fact,  witnesses  whom  he  could 
produce  to  testify  in  his  defense  if  time 
were  given,  and  other  circumstances 
showing  that  a  continuance  would  be 
of  actual  service  to  him.  SeetVz/Va, 
note  3,  this  page;  Form  No.  6286. 

A  Precedent  to  be  Shunned.  —  In  South- 
ern Bank  v.  Mechanics  Sav.  Bank,  27 
Ga.  253,  the  affidavit  failed  to  comply 
with  the  requirements  set  forth  in  note 
3,  infra,  and  is  also  condemned  by  3 
Ga.  Code  (1S95),  §  965,  which  is  merely 
declaratory  of  the  general  rule,  and 
provides  that  "  the  party  making  an 
application  for  a  continuance  must 
show  that  he  has  used  due  diligence." 

1.  Who  may  Make.  —  The  affidavit, 
though  usually  made  by  the  party  him- 
self, may  be  made  by  his  counsel  when 
the  latter  is  cognizant  of  the  facts,  and 
particularly  when  the  matters  set  forth 
relate  to  the  attorney's  own  situation  or 
conduct  in  respect  to  the  case.  Thus 
the  motion  was  founded  upon  the  affi- 
davit of  counsel  in  Dunlap  v.  Davis, 
10  111.  84;  Brotherton  v.  Brotherton,  41 
Iowa  112;  Brooks  v.  Com.,  (Ky.  1896) 
37  S.  W.  Rep.  1043;  People  v.  Shea,  147 
N.  Y.  78. 

2.  The  words  in  [  ]  are  not  found  in 
the  reported  case,  but  have  been  added 
to  make  the  form  complete. 

3.  That  reasonable  exertions  have  been 
made  for  preparation  without  success, 
or  that  there  was  some  good  reason  for 
not  making  such  exertions  must  be 
shown.  Dunlap  v.  Davis,  10  111.  84; 
People  V.  McGonegal,  (Supreme  Ct.)  17 
N.  Y.  Supp.  147;  Com.  V.  Mister,  79  Va. 
5.  It  is  not  sufficient  to  aver  inabili- 
ty to  take  steps  toward  preparation. 
The  affidavit  should  show  in  what  re- 
spect the  party  has  not  been  able  to 
prepare  for  trial.  Thompson  v.  State, 
24  Ga.  297.  And  a  continuance  was 
properly  denied  where  the  affidavit  of 
defendant's  counsel  merely  stated  that 
counsel  wanted  time,  and  that  it  was 


not  customary  to  go  to  trial  on  an  in- 
dictment for  so  grave  an  offense  so  soon 
after  it  was  found.  People  v.  Shea, 
147  N.  Y.  78. 

An  affidavit  that  defendant's  attorney 
had  not  been  notified  when  the  case 
would  be  reached  until  a  few  hours  be- 
fore it  was  called,  was  insufficient  in 
not  showing  that  defendant  himself 
was  unaware  of  the  date  fixed  for  the 
trial  in  time  to  prepare  for  the  same. 
May  V.  State,  38  Neb.  211. 

An  affidavit  was  insufficient  in  not 
stating  that  counsel  defending  was  un- 
able by  reason  of  his  recent  employ- 
ment to  fairly  present  defendant's  case, 
where  defendant  had  been  abandoned 
by  his  former  counsel  a  short  time  be- 
fore trial,  and  had  thereupon  employed 
other  counsel.  Dacey  v.  People,  116 
111.  555. 

In  Murphy  v.  Com.,  92  Ky.  485,  it 
appeared  by  affidavit  of  the  defendant 
that  he  had  been  confined  in  jail  since 
his  arrest,  that  he  was  unable  to  read  or 
write,  that  he  was  entirely  without 
funds,  that  the  attorney  defending  him 
was  a  volunteer  and  a  stranger  in  the 
county,  and  that  if  he  were  granted  a 
continuance  defendant  could  prove 
that  he  was  insane  when  the  alleged 
crime  was  committed.  It  was  held 
reversible  error  to  overrule  defendant's 
motion  for  continuance  based  on  such 
affidavit.  For  similar  cases  see  State 
V  Hagan,  22  Kan.  490;  Newman  v. 
State,  22  Neb.  356. 

In  North  v.  People,  139  111.  8r,  the 
court  said,  "  it  has  never  been  regarded 
necessary  that  defendant  show  the 
same  degree  of  promptness  and  dili- 
gence in  preparing  for  trial  at  the  term 
at  which  the  indictment  is  returned  as. 
at  subsequent  terms." 

4.  Here  the  affidavit  proceeded  to 
state  the  absence  of  counsel  as  a  further 
ground  for  continuance.  For  affidavits 
presenting  that  ground  see  infra.  Forms 
Nos.  6261  to  6269. 


818 


Volume  5. 


6260.  ADJOURNMENTS. 

*  *  *  X    ^(^Signature  and  Jurat  as  in  Form  No.  628^.)]^ 


6260. 


2.  For  Public  Excitement  and  Prejudice.^ 

Form  No.  6260. 

( Title,  venue  and  commencement  as  in  Form  No.  6283. )  That  after 
the  commission  of  the  alleged  homicide  there  was  great  public  excite- 
ment in  the  minds  of  the  people  of  Marion  county,  and  such  public 
excitement  continues  up  to  the  present  time,  and  such  public  excite- 
ment agitates  the  public  mind  to  a  high  degree,  and  hath  great  preju- 
dice against  affiant,  and  that  there  is  just  and  reasonable  cause  to 
apprehend  that  by  reason  of  the  excited  state  and  condition  of  the 
public  mind  a  jury  obtained  at  this  time  might  not  be  free  to  render 
justice  to  the  defendant  at  this  term  of  court.  That  there  has  not 
been  since  the  time  of  the  alleged  homicide  sufficient  time  for  the 
public  excitement  to  cool  down.  The  public  excitement  was  so 
intense  that  there  was  great  danger  that  violence  might  have  been 
done  to  affiant,  by  reason  whereof  extra  guards  had  to  be  employed 
for  the  security  of  his  person  from  the  violence  of  the  public  since 
affiant  has  been  in  custody.  That  the  said  excitement  in  the  public 
mind  is  sufficient  to  intimidate  and  swerve  the  jury.*  That  {Here 
state  special  circumstances  showing  the  existence  of  public  excitement  and 
prejudice).^     [Affiant  further  says   that  he  believes  that  a  fair  and 


1.  The  affidavit  concluded  with  a 
further  allegation  of  public  excitement 
and  prejudice  as  a  ground  for  con- 
tinuance. For  affidavits  in  support  of 
a  motion  for  continuance  upon  that 
ground  see  infra.  Form  No.  6260. 

2.  The  words  in  [  ]  are  not  found  in 
the  reported  case,  but  have  been  added 
to  make  the  form  complete. 

8.  Public  excitement  and  prejudice  as 
a  ground  for  continuance,  see4Encycl. 
of  PI.  and  Pr.  832,  878. 

4.  "  Sufficient  to  Intimidate  and  Swerve 
the  Jnry." — That  this  averment  is  essen- 
tial see  State  v.  Abshire,  47  La.  Ann. 
542. 

5.  Particular  facts  and  circtimstances 
should  be  alleged  from  which  the  court 
can  deduce  the  conclusion  that  public 
prejudice  actually  exists  to  such  a  de- 
gree that  defendant  cannot  obtain  a 
fair  trial  at  the  present  term.  See 
Hoover  v.  State,  48  Neb.  184;  State  v. 
Abshire,  47  La.  Ann.  542,  the  latter 
case  pointing  out  that  an  allegation 
that  "  means  had  been  taken  improp- 
erly to  influence  the  jury"  would  be 
material  to  the  point  of  prejudice.  The 
form  presented  in  the  text  is  a  part  of 
the  affidavit  in  Ballard  v.  State,  31  Fla. 
280,  in  which  the  court  said:  "  The  mere 
fact  that  there  is  in  the  record  neither 
any  corroborative  evidence  of  its  state- 


ments, nor  any  attempt  to  show  that 
the  accused  was  prevented  from 
getting  such  evidence  by  the  stress  of 
circumstances  detailed,  is  sufficient 
reason  for  us  to  refuse  to  review  the 
decision  of  the  circuit  judge  in  refus- 
ing a  motion  for  a  continuance  on  this 
ground." 

The  principles  controlling  such  appli- 
cations are  said  to  be  strictly  analogous 
to  those  governing  the  application  for 
a  change  of  venue  upon  the  same 
ground.  Bishop  v.  State,  9  Ga.  121; 
Ballard  v.  State,  31  Fla.  280.  As  to 
the  requisites  of  an  affidavit  for  a 
change  of  venue,  see  vol.  4,  Form 
No.  5560,  and  4  Encycl.  of  PI.  and  Pr. 
399,  431.  432. 

Other  Forms.  —  In  Jones  v.  State,  (Tex. 
Crim.  App.  1896)  35  S.  W.  Rep.  975, 
one  ground  of  defendant's  application 
for  continuance  was:  "Because  there 
exists  at  the  present  term  of  this  court 
so  great  a  prejudice  in  the  public  mind 
against  him  that  witnesses  knowing 
the  facts  material  to  his  defense  are 
terrorized  and  intimidated  thereby,  and 
will  not  declare  such  facts  to  him  or  to 
his  attorney,  and  it  would  be  extremely 
dangerous  for  him  to  go  to  trial;  and  a 
fair  and  impartial  trial  would  be  denied 
him  if  he  is  forced  to  trial  at  this  term 
of  the  court."     The  motion  was  denied, 


819 


Volume  5. 


6261. 


CONTINUANCES  AND 


6261. 


impartial  trial  can  be  had  at  the  next  term  of  this  court.^  And  that 
this  application  is  not  made  for  delay,  but  for  the  purpose  of  secur- 
ing a  fair  and  impartial  trial.]  {^Signature  and  jurat  as  in  Form  No. 
6283.) 

3.  For  Absence  of  Counsel. 


a.  In  General.' 

Form  No.  6261. 

(Precedent  in  Bartel  v.  Tieman,  55  Ind.  438.) 


not  because  the  affidavit  was  insuffi- 
cient, but  upon  the  ground  that  if  the 
facts  alleged  were  true  the  proper 
course  was  to  move  for  a  change  of 
venue.  See  also  Laughlin  v.  Com.,  (Ky. 
1896)  37  S.  W.  Rep.  590. 

In  Howell  v.  State,  5  Ga.  49,  the 
statement  in  the  defendant's  affidavit 
concerning  public  excitement,  etc.,  was 
as  follows:  "  Deponent  further  states 
that  he  cannot  go  safely  to  trial,  be- 
cause such  is  the  excitement  in  the 
public  mind,  and  so  excited  is  public 
feeling  at  this  time  against  him,  as  he 
has  been  advised  and  believes,  that  he 
has  more  to  fear,  and  does  fear,  that 
he  cannot  obtain  a  fair  trial."  In  Bishop 
V.  State,  9  Ga.  121,  the  affidavit  was 
almost  exactly  the  same.  In  both  of 
those  cases  it  was  held  sufficient,  but 
they  must  now  be  pronounced  unsafe 
precedents  to  follow  anywhere.  As  to 
the  present  law  and  practice  in  Georgia, 
see  4  Encycl.  of  PI.  and  Pr.  832,  note  7. 

1.  Fair  Trial  at  the  Next  Term. —  In 
State  V.  Abshire,  47  La.  Ann.  542,  the 
affidavit  was  pronounced  defective  be- 
cause it  "  failed  to  disclose  that  a  fair 
and  impartial  trial  could  be  had  at  the 
term  of  court  to  which  it  was  proposed 
to  defer  it." 

2.  Continaances  for  absence  of  counsel 
are  not  favored,  particularly  where  the 
absence  is  occasioned  by  other  profes- 
sional engagements;  actual  prejudice 
resulting  should  always  be  shown.  4 
Encycl.  of  PI.  and  Pr.  839  et  seq., 
cited  in  Adarmek  v.  Piano  Mfg.  Co., 
64  Minn.  304;  Poppell  v.  State,  71  Ga. 
276:  Stringam  v.  Parker,  159  111.  304; 
Whitehall  v.  Lane,  61  Ind.  93;  Geiger 
V.  Payne,  (Iowa,  1896)  69  N.  W.  Rep. 
554;  Watkins  v.  Ahrens,  etc.,  Mfg.  Co., 
(Ky.  1897)  38  S.  W.  Rep.  868;  West  v. 
Hennessey,  63  Minn.  378;  State  v. 
Inks,  135  Mo.  678:  People  v.  Hilde- 
brandt,  16  Misc.  Rep.  (N.  Y.  County 
Ct.)  195;  Van  Horn  v.  State,  (Wyoming, 
1895)  40  Pac.    Rep.  964. 


There  is  no  prejudice  where  it  appears 
that  the  case  was  ably  tried  by  asso- 
ciate counsel.  Reynolds  v.  Campling, 
23  Colo.  105;  Marshall  v.  State,  94  Ga. 
589;  Johnson  v.  Dean,  48  La.  Ann.  100; 
St.  Louis,  etc.,  R.  Co.  v.  Holaday,  131 
Mo.  440;  Weaver  v.  State,  34  Tex.  Crim. 
Rep.  282;  Ryan  v.  State,  (Tex.  Crim. 
App.  1896)  35  S.  W.  Rep.  288;  Mixon 
V.  State,  (Tex. Crim.  App.  1896)  35  S. 
W.  Rep.  394.  Or  where  no  reason  is 
shown  why  other  counsel  could  not  be 
procured.  Condon  v.  Brockway,  157 
111.  90. 

Application  After  Trial  Begun.  —  In 
Porter  v.  Triola,  84  111.  325,  it  was 
held  that  a  motion  for  continuance  for 
absence  of  counsel  by  reason  of  sick- 
ness came  too  late  after  trial  begun, 
the  remedy,  if  any,  being  by  motion 
for  a  new  trial. 

Who  may  Make.  —  In  Condon  v.  Brock- 
way,  50  111.  App.  625,  the  affidavit  was 
made  by  the  party  and  also  by  the 
absent  attorney.  In  St.  Louis,  etc., 
R.  Co.  V.  Holaday,  131  Mo.  440,  it  was 
made  by  associate  counsel  present. 
In  Johnson  v.  Dean,  48  La.  Ann.  100, 
by  the  absent  counsel. 

Requisites  of  AfB.davit.  —  The  affidavit 
should  show  the  reason  for  counsel's 
absence.  St.  Louis,  etc.,  R.  Co.  v. 
Holaday,  131  Mo.  440.  And  that  his 
presence  is  needed  to  assist  associate 
counsel,  if  there  is  any.  Stringam  v. 
Parker,  159  111.  304.  And  set  out 
what  time  the  absent  attorney  will  be 
able  to  try  the  case.  Condon  v.  Brock- 
way,  50  111.  App.  626.  And  "show 
with  satisfactory  certainty  that  the  ap- 
plicant had  not  ample  time,  after  he 
learned  that  his  attorney  would  be  ab- 
sent on  the  day  set  for  the  trial  *  *  * 
to  employ  another  attorney,  and  to 
inform  him  fully"  of  the  difficulties 
involved  in  the  case.  Whitehall  v. 
Lane,  61  Ind.  93,  where  the  affidavit, 
insufficient  in  this  particular,  is  set 
forth  in  extenso. 


320 


Volume  5. 


6262.  ADJOURNMENTS.  6262. 

[(7'/'//^,  venue  and  commencement  as  in  Form  No.  5557.)]^  that  the 
cause  was  set  down  for  trial  on  the  ninth  day  of  this  month  {June^  and 
that  she  was  ready  for  trial  on  that  day;  that  she  had  procured  the 
attendance  of  a  very  importance  witness,  who  lived  in  Cincinnati, 
Ohio;  that  she  had  some  time  before  employed  Henry  C.  Fox  and 
John  H.  Popp,  attorneys,  to  prepare  and  conduct  her  defense  in  said 
suit;  that  they  had  prepared  themselves  to  defend  it,  and  were  familiar 
with  the  facts  and  questions  involved  in  it,  and  that  she  relied  upon 
them  to  represent  her;  that  said  cause  was  not  called  in  its  order  for 
trial  until  the  evening  of  the  tenth  instant,  at  which  time  she  was 
ready  for  trial  with  her  attorneys;  that  the  court  passed  said  cause 
and  called  another  one,  and  proceeded  to  the  trial  of  it,  whereupon 
her  witness  from  Cincinnati  immediately  left  for  his  home  in  that  city. 
Affiant  further  says  that  her  attorneys,  who  were  then  present,  ready 
for  trial,  cannot  be  present  at  this  trial,  at  this  term,  owing  to  pro- 
fessional engagements  elsewhere,  which  engagements  were  entered 
into  before  the  time  set  for  trial  of  this  cause,  viz.,  the  ninth  instant; 
that  they  informed  her  of  this  fact  for  the  first  time  on  the  twelfth 
instant;  that  she  has  not  employed  other  counsel  for  the  reason  that 
no  others  were  familiar  with  the  facts  of  her  defense,  and  that  after 
she  was  informed  by  her  retained  counsel  that  they  could  not  be  at 
the  trial  on  this  day,  the  intervening  time,  being  but  two  days,  was 
too  short  to  enable  other  attorneys  to  familiarize  themselves  suffi- 
ciently with  the  case  to  properly  try  it;  and  for  the  further  reason 
that  she  is  poor,  as  is  also  her  husband,  and  unable  to  pay  two  sets 
of  attorneys;  that  in  the  complaint  she  is  charged  with  fraudulently 
receiving  the  titles  to  lands  therein  described,  with  intent  to  cheat, 
hinder  and  delay  the  creditors  of  her  husband,  all  of  which  charges 
are  untrue;  that  all  she  has  for  herself  and  children  is  involved,  and 
it  is  of  the  greatest  importance  to  her  to  have  her  said  witness  on 
the  trial.2    \Signature  and  jurat  as  in  Form  No.  6281.) 

b.  Associate  Counsel.  ' 

Form  No.  6262. 

(Precedent  in  State  v.  Maddox,  117  Mo.  670.)' 

{Commencing  as  in  Form  No.  6291,  and  continuing  down  to  *.)  That 
Champ  Clark,  an  attorney-at-law,  is  one  of  the  counsel  for  this  defend- 
ant in  this  cause  and  has  been  such  counsel  ever  since  the  indictment 
in  this  cause  was  found,  and  that  said  Champ  Clark,  as  such  counsel, 
is  in  charge  of  portions  of  the  work  in  making  the  defense  in  this 
cause,  which  were  peculiarly  in  the  charge  and  knowledge  of  said 
Clark. 

1.  The  words  to  be  supplied  in  [  ]  are  further  than  to  declare  that  it  was  suffi- 
not  found  in  the  reported  case,  but  have  cient,  and  that  a  continuance  was 
been  added  to  make  the  form  complete,  erroneously  denied. 

2.  Here  followed  a  statement  de-  3.  The  merits  of  so  much  of  the  affi- 
signed  to  support  the  application  on  davit  as  is  here  given  were  not  alluded 
the  further  ground  of  absence  of  a  wit-  to  by  the  court,  as  the  case  was  decided 
ness.  The  supreme  court  did  not  com-  on  the  part  of  the  affidavit  set  out  in 
ment  upon  the  merits  of  the  affidavit  Form  No.  6291. 

5  E.  of  F.  P.  —  21.  321  Volume  5. 


6263.  CONTINUANCES  AND  6263. 

That  said  Clark  is  a  resident  of  the  city  of  Bmvling  Green^  in  Pike 
county,  Missouri^  and  is  a  member  of  the  bar  at  that  place,  and  has  a 
large  practice  as  such  attorney  in  the  Circuit  Court  of  said  Pike 
county. 

That  the  regular  September  term,  i8S^,  of  said  Pike  Circuit  court  is 
begun  on  this  day,  to  wit,  tht  fifth  day  of  September,  iS92. 

That  the  docket  of  said  Circuit  Court  of  Pike  county  is  set  so  that 
there  are  a  great  many  of  the  cases  in  which  said  Clark  is  of  counsel, 
set  for  trial  on  every  day,  beginning  with  this  day  and  ending  on  the 
fifteenth  day  of  September,  i892. 

That  said  cases  in  which  said  Clark  is  engaged  as  counsel  are 
important  cases,  and  by  reason  of  said  employment  of  said  Clark  in 
said  cases  in  said  Pike  Circuit  Court,  he,  the  said  C.  Clark,  cannot  be 
present  at  the  trial  of  this  cause  at  the  present  term  of  this  court,  and 
that  if  the  defendant  is  compelled  to  go  to  trial  without  the  presence 
and  aid  of  said  Clark  as  such  counsel,  a  great  and  material  harm 
Tould  be  done  this  defendant,  and  this  defendant  would  be  deprived 
of  the  means  of  making  a  full  and  fair  defense  in  this  cause.  ^  {Signa- 
ture and  verification  as  in  Form  No.  6291. ) 

Form  No.  6263.* 

{Title  and  venue  as  in  Form  No.  628 ^..y 

I,  Early  W.  Thrasher,  do  swear  that  I  am  the  defendant  in  the 
above  entitled  cause;  that  £.  H.  Thrasher,  Esq.,  is  my  leading 
counsel^  in  this  case;  that  I  have  had  more  frequent  and  fuller  con- 
versations with  him  concerning  this  case  than  with  Colonel  Billups  or 
other  counsel;  that  he  has  entire  charge  of  getting  up,  preparing 
and  arranging  the  evidence  in  this  case;  that  I  cannot  safely  go  to 
trial  without  his  services;*  that  I   expect  his   services  at   the   next 

1.  The  affidavit  then  proceeded  to  set  showing  for  a  continuance  as  required 
out  as  another  ground  for  continuance  by  that  section,  the  application  is 
the  absence  of  a  material  witness,  which  nevertheless  controlled  by  section  966 
constitutes  Foriti  No.  6291, and  was  duly  of  the  code,  and  that  the  court  may.  In 
subscribed  and  sworn  to.  the  exercise  of  a  sound   discretion,  re- 

2.  This  afBldayit  modifies  and  strength-  fuse  to  continue  the  case. 

ens  the  precedent  found  in  Thrasher  v.  It  was  held  a  proper  exercise   of  dis- 

Anderson,  45  Ga.   540,  wherein  a  new  cretion    to    refuse    a    continuance   oh 

trial  was  granted  for  refusal  of  a  con-  account    of    the    absence     of    leading 

tinuance.      For  other  cases,  in  which  counsel  where  the  defendant's  affidavit 

new  trials  were  properly  granted  be-  merely   stated    as    to    the    reason    for 

cause  continuances  were  refused  upon  counsel's  absence  that  he,  the   defend- 

a   proper  showing  of   the   absence  of  ant,  "was    informed     by    letter     that 

leading  counsel,  see  Smith  v.  Brand,  [counsel's]    wife   was    dangerously   ill 

44  Ga.   588;    Bagwell  z/.  State,   56  Ga.  and  too  ill  for  his  attendance  on  court," 

406.  and  other  competent  counsel   tried  the 

Continuances  for  "  illness  of  counsel  or  case.     Loyd  v.  State,  45  Ga.  57. 

his  absence,  from  providential  cause,  3.  Leading  Counsel.  —  As    to    who  is 

where  there  is  but  one,  or  of  the  lead-  considered  leading  counsel,  see  Smith 

ing  counsel  where  there  are  more  than  v.  State,  78  Ga.  74;  Bagwell   v.    State, 

one,"  are    regulated  by  section  964  of  56  Ga.  406;  Turner  v.  State,  70  Ga.  774. 

the  Georgia  Code  of  1895.  4.  He   should  swear  that  he   cannot 

It   was   held  by   a   majority   of  the  safely  go  to   trial  without   the    absent 

court   in    Thomas   v.   State,  92  Ga.  8,  counsel.     Turner  v.  State,  70  Ga.  774. 
that  although  a  party  makes  a  proper 

823  Volume  5. 


6264.  ADJOURNMENTS.  6264. 

term;  that  he  is  not  absent  by  my  consent  or  procurement,  but 
from  providential  cause,  namely,  an  attack  of  pneumonia,^  from 
which  he  is  now  recovering;  and  that  the  said  ^. /T.  Thrasher  is 
unable  to  be  present  at  this  term  of  court  by  reason  of  said  illness. 
This  application  is  not  made  for  delay  only.^  {Signature  and  jurat 
as  in  Form  No.  6284.) 

e.  In  Attendance  upon  Legislature.^ 

(1)  Bv  Party. 

Form  No.  6264. 
(Precedent  in  Harrigan  v.  Turner,  53  111.  App.  292.) 

T^oriaCou^^'  \  ^^-     ^^  Circuit  Court,  May  Term,  i8P5. 

L.  R.  Turner       ) 

vs.  y  Dedt  —  Appeal. 

Michael  Harrigan.  ) 

Michael  Harrigan  makes  oath  and  says  that  he  is  the  above  named 
defendant,  and  that  he  can  not  safely  proceed  to  the  trial  of  this 
cause  at  present  May  term,  i855,  of  this  Circuit  Court  of  Peoria 
County,  Illinois,  for  the  reason  that  John  M.  Niehaus,  his  attorney, 
is  at  present  a  member  of  the  upper  branch  of  the  legislature  of  the 
General  Assembly,  now  in  session  at  Springfield,  Illinois,  for  the  year 
of  \%93,  and  that  he  is  now  in  actual  attendance  on  the  same;*  and 
that  the  attendance  oi  John  M .  Niehaus  in  this  Circuit  Court  is  neces- 
sary to  a  fair  and  proper  trial  of  said  suit;  and  that  the  said  John 
M.  Niehaus  was  employed  by  the  defendant,  Michael  Harrigan,  prior 
to  the  commencement  of  the  January  session  of  the  General  Assem- 
bly of  i8P<?;  said  session  was  held  at  Springfield,  Illinois. 

1.  For  certificate  of  a  physician  see  not  time  to  employ  or  instruct  other 
infra.  Form  No.  6305,  and  annotations,  counsel,  nor  the  means  to  do  so.  A 
showing  that  it  is  good  practice  to  refusal  to  grant  a  continuance  was 
fortify  an  affidavit  of  sickness  by  filing  there  held  to  be  an  abuse  of  discretion, 
therewith  the  certificate  of  a  physician.  Bat  statutes  often  provide  for  continu- 

2.  Not  Kade  for  Delay.  —  The  affidavit  ances  on  account  of  absence  of  coun- 
must  state  that  the  application  is  not  sel  in  attendance  upon  the  legislature 
made  for  delay  only.    Burnett  v.  State,  as  a  member  thereof. 

87  Ga.  622;  Smith  v.  State,  78  Ga.  74,  California. —  Code  Civ.  Proc.  (1897),  § 

where  a  defect  in  that  particular  was  595. 

held  fatal.  Illinois.  —  Starr   &    C.    Anno.    Stat. 

3.  Absence  of  coonsel  in  attendance  upon  (1896),  pp.  3041,  3042,  pars.  47,  48. 

the  legislature,  even  of  leading  counsel,  Indiana.  —  Horner's    stat.    (1896),    § 

is  not  deemed  a  sufficient  ground  for  411a. 

continuance.     Sharman  v.   Morton,  31  Louisiana.  —  Garland's     Rev.    Code 

Ga.  34.     But  see   Patin  v.    Poydras,   7  (1894),  §  466. 

Martin   N.  S.   (La.)  593,   where   it   ap-  Missouri.  —  Burns'  Anno.    Pr.    Code 

peared   by  plaintiff's  affidavit  that  her  (1896),  ^  500. 

counsel  was  absent  attending  to  public  4.  Showing  actual  attendance  upon  the 

business   as   a   senator   and    had    her  session   of   the  legislature  is  sufficient 

papers  in  his  possession;  that  she  was  cause  for  a  continuance.     Harrigan  v. 

not    apprised    of     his    absence     early  Turner,  53  111.  App.  292.     Consult  also 

enough  to  send  for  the  papers  which  annotations  to  Form  No.  6268,  infra. 

were  necessary   in   her  case,  and   had 

823  Volume  5. 


6265.  CONTINUANCES  AND  6267. 

That  this  application  is  not  made  for  delay,  but  that  justice  maybe 
done;  that  he  has  a  meritorious  defense  and  believes  he  will  be  suc- 
cessful on  a  trial  of  said  cause. 

Michael  Harrigan. 
Subscribed  and  sworn  to  before  me  this  5^ day  of  May^  a.  d.  \W3. 

James  E.  Pillsbury,  Clerk, 

By  R.  N.  McCormick,  Deputy, 

Form  No.  6265.' 

(^Title  of  court  and  cause ^  and  venue  as  in  Forfn  No.  6287.) 
Thomas  A.  Smith,  being  duly  sworn,  on  his  oath  says  that  he  is  the 
plaintiff  (or  defendant)  in  the  above  entitled  cause;  ^zX.  John  Jones., 
of  Indianapolis.,  is  his  attorney  in  said  cause ;  that  the  said  Jones  is  a 
member  of  the  general  assembly  of  the  state  of  Indiana.,  and  that 
said  general  assembly  is  now  in  session;  and  further,  that  said 
Jones  was  employed  in  said  cause  by  the  affiant  as  his  chief  attorney 
before  the  beginning  of  said  session,  and  before  the  election  of  said 
Jones  to  said  general  assembly,  and  that  said  Jones  is  the  only 
attorney  employed  in  said  cause  by  the  affiant  [who  is  prepared  to 
try  said  cause  for  him].^     (^Signature  and  jurat  as  in  Form  No.  6287.) 

Form  No.  6266.^ 

(^Title  of  court  and  cause,  and  venue  as  in  Forms  Nos.  832,  2566.) 
John  Smith  makes  oath  and  says  that  he  is  the  plaintiff  (or  defena- 
ant)  in  the  above  entitled  cause;  that  Samuel  Short  is  an  attorney  at 
law  and  employed  as  the  leading  counsel  for  the  said  plaintiff  (or 
defendant)  in  said  cause;  that  said  Samuel  Short  is  absent  from  the 
court  and  employed  in  the  service  of  the  state  of  Louisiana,  as  a 
member  of  the  general  assembly  thereof,  which  is  now  in  session. 
(^Signature  and  Jurat  as  in  Form  No.  832.) 

(2)  By  Attorney. 

Form  No.  6267.* 

(  Title  of  court  and  cause,  and  venue  as  in  Forms  Nos.  SlJf.,  253 Jf.. ) 
John  Smith,  being  duly  sworn,  deposes  and   says,   that  he  is  the 

1.  Indiana.  —  Horner's  Stat.  (1896),  §  ever  any  attorney  at  law  shall  be 
411,  providing  that  "whenever  any  employed  in  the  service  of  the  state, 
plaintiff  or  defendant  in  a  civil  action,  as  a  member  of  the  general  assembly, 
or  a  defendant  in  a  criminal  action,  his  absence  from  court,  unless  it  be  the 
shall  make  affidavit,"  etc.,  "  and  upon  supreme  court,  during  the  session  of 
such  affidavit  move  the  court  for  a  the  general  assembly,  shall  constitute 
continuance,"  the  same  shall  be  a  peremptory  cause  for  the  continuance 
granted  until  three  days  after  the  ad-  of  any  case  wherein  he  is  employed  as 
journment  of  the  legislature.  leading  counsel." 

See   also   annotations   to   Form   No.  The  code  does  not  expressly  require 

626S,  infra.  an  affidavit  in  support  of  the  motion  for 

2.  If  there  is  only  one  attorney,  omit  continuance.  For  construction  of  simi- 
the  words  in  [  ];  if  more  than  one,  they  lar  statutes,  and  practice  thereunder, 
are  indispensable.  see  annotations  to    Forms   Nos.    6264, 

3.  Louisiana.  —  Garland's  Rev.  Code  6265,  6267,6268,  6269. 

(1894),   $5   466,  providing   that  "  when-        4.     California.  —  Code    Civ.     Proc. 

824  Volume  5. 


6268. 


AD  JO  URNMENTS. 


6268. 


attorney  of  record  for  the  plaintiff  (or  i'.f/?Wa«/)in-the  above  entitled 
cause;  that  he  is  actually  engaged  in  attendance  upon  a  session  of  the 
legislature  of  the  state  of  California  as  a  member  thereof;  and  that  he 
was  employed  as  attorney  of  record  as  aforesaid  before  the  com- 
mencement of  said  session  of  the  legislature.^  {Signature  and  iurat 
as  in  Form  No.  81Jf. ) 

Form  No.  6268.* 

( Title  of  court  and  cause.,  and  venue  as  in  Form  No.  6286  or  Form 
No.  6291.) 

I,  John  Smith,  do  swear  that  I  am  the  attorney  (or  solicitor  or  coun- 
seiy  of  the  plaintiff  (or  defendant,  or  other  party)  in  the  above  en- 
titled cause;  that  I  was  actually  employed*  in  said  suit  by  said  party 
prior  to  the  commencement  of  the  general  assembly  of  the  state  of 
Illinois,  which  is  now  in  session*  [and  was  prior  to  and  at  the  date  of 
said  employment  and  am  now  duly  authorized  and  admitted  to  prac- 


(1897),  §  595,  not  expressly  requiring 
an  affidavit  but  providing  for  the  post- 
ponement of  trial.  In  People  v.  Gold- 
enson,  76  Cal.  343,  where  the  junior 
counsel  was  absent  as  a  member  of  the 
legislature,  it  appears  that  an  affidavit 
was  filed  by  the  senior  counsel  present. 
In  the  same  case  the  court  deems  it 
doubtful  if  section  595,  above  men- 
tioned, applies  to  criminal  proceedings. 

1.  In  People  v.  Goldenson,  76  Cal. 
343,  the  court  expressed  the  opinion 
that  the  Code,  §  595,  cited  in  the  pre- 
ceding note,  authorized  a  continuance 
only  for  the  absence  of  those  who  be- 
come attorneys  of  record  before  the 
commencement  of  the  session  of  the 
legislature. 

2.  Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  3041,  par.  ^T  et  seg.,  applying  to 
all  civil  "  suits  at  law  or  in  equity." 

It  is  mandatory  npon  the  court  to  con- 
tinue the  cause  upon  this  ground  under 
the  statute,  the  word  '*  may "  being 
construed  as  "  shall  "  or  "  must."  St. 
Louis,  etc.,  R.  Co.  v.  Teters,  68  111. 
144;  Wicker  v.  Boynton,  83  111.  545; 
Ware  v.  Jerseyville,  158  111.  234;  Chi- 
cago Public  Stock  Exch.  v.  Mc- 
Ciaughry,  148  111.  372,  affirming  50  111. 
App.  358,  refusing,  however,  to  disturb 
the  ruling  of  the  trial  court  denying  the 
continuance,  it  appearing  that  the  error 
was  harmless. 

Counter  affidavits  are  not  admissible 
for  the  purpose  of  contradicting  the 
affidavit.  Chicago  Public  Stock  Exch. 
V.  McClaughry.  148  111.  379. 

A  second  application  on  a  sufficient 
affidavit  will  not  be  entertained  at  the 
same  term  that  a  first  application  on 
the  same  grounds  has  been  overruled 


on    account  of    a    defective    affidavit. 
Stockley  v.  Goodwin,  78  111.  127. 

Missouri.  —  Burns'  Anno.  Prac.  Code, 
§  500,  applying  to  all  civil  "suits  at 
law  or  in  equity." 

3.  Who  may  Kake.  —  In  Illinois  and 
Missouri  the  statutes  provide  for  a  con- 
tinuance if  it  shall  appear  by  affidavit, 
etc.,  not  specifying  who  must  make  the 
affidavit.  In  Joiner  z".  Drainage  Comrs., 
17  111.  App.  607,  the  affidavit  was  made 
by  the  absent  attorney.  In  McCloryt'. 
Crawley,  59  111.  App.  392,  it  was  made 
by  the  defendant,  and  held  insufficient 
only  for  intrinsic  defects.  In  Harrigan 
V.  Turner,  53  111.  App.  292,  it  was  made 
by  the  defendant  and  held  to  be  in 
proper  form,  and  so  in  Ware  v.  Jersey- 
ville, 158  111.  234.  In  St.  Louis,  etc., 
R.  Co.  V.  Teters,  68  111.  144,  it  was 
made  by  plaintiff's  agent,  and  the  prece- 
dent approved  in  this  case  is  given 
infra.  Form  No.  6269. 

4.  "  Actually  Employed." — An  affidavit 
alleging  employment  of  counsel  implies 
actual  employment  in  the  language  of 
the  Illinois  statute.  Harrigan  v.  Tur- 
ner, 53  111.  App.  294.  In  Missouri  the 
section  of  the  Illinois  statute  requiring 
actual  employment  prior  to  the  session, 
etc.,  was  not  adopted,  and  it  is  possible 
that  the  affidavit  in  that  jurisdiction 
need  not  contain  such  statement.  By 
judicial  interpretation,  however,  in 
California,  it  was  thought  to  be  neces- 
sary in  People  v.  Goldenson,  76  Cal. 
343.     See  supra,  note  4,  p.  324. 

5.  Time  of  Employment.  —  A  motion  is 
properly  overruled  if  the  affidavit  fails 
to  state  that  the  attorney  had  been 
employed  in  the  cause  prior  to  the 
commencement  of  the    session  of   the 


325 


Volume  5. 


6269.  CONTINUANCES  AND  6269. 

tice  in  the  Supreme  Court  of  Illinois^  ;i  that  I  am  now^  a  member  of 
the  house  of  representatives  (or  senate')  of  said  general  assembly, 
and  in  actual  attendance^  on  a  session  of  the  said  general  assembly 
at  the  capital  of  said  state;*  that  my  attendance  in  court  at  the 
trial  of  this  suit  is  necessary  to  a  fair  and  proper  trial  of  said  suit.^ 
(^Signature  and  Jurat  as  in  Form  No.  6285  or  Form  No.  6291.)^ 


(3)  By  Agent, 

Form  No.  6269. 

(Precedent  in  St.  Louis,  etc.,  R.  Co.  v.  Teters,  68  III.  144.)' 

\{Title  of  court  and  cause,  and  venue  as  in  Form  No.  Q285.)^ 
A.  L.  Gardiner  being  first  duly  sworn  says  that  he  is  the  agent  of 
the  plaintiff;  that  said  plaintiff  cannot  safely  proceed  to  the  trial  of 
said  cause^  at  this  term  of  court  on  account  of  the  absence  of 
Thomas  S.  Casey,  who  is  the  principal  or  senior  counsel  in  said  cause; 
that  said  Thomas  S.  Casey  is  a  member  of  the  senate,  one  of  the 
houses  of  the  general  assembly  of  the  state  of  Illinois,  and  now  in 
actual  attendance  upon  a  session  of  the  said  general  assembly  at  the 
capital  of  said  state;  that  said  attorney  was  employed  by  plaintiff  in 
said  cause  before  the  election  of  said  attorney  to  the  office  aforesaid, 
and  before  the  present  session  thereof  was  begun,  and  before  the 
present  term  of  this  court  began,  and  further  saith  not. 

A.  L.  Gardiner,  Agent. 
\j^  Jurat  as  in  Form  No.  6285.  )'\^ 

legislature.     Stockley  v.   Goodwin,   78  intelligently,  or  it  should  state  in  the 

111.127.  language  of  the  statute   that  "the  at- 

1.  Admission  to  practice  in  the  supreme  tendance  of  counsel  is  necessary  to  a 
court  is  a  requisite  of  the  affidavit  un-  fair  and  proper  trial."  McClory  v. 
der   the   Illinois  statute.      Starr   &   C.  Crawley,  59  III.  App.  392. 

Anno.   Stat.    (1896),    p.   3042,    par.    48.         An  affidavit  stating  tliat  the  presence 

This,  however,  is  not  mentioned  in  the  of  the  absent  attorney  is  "  necessary  to 

Missouri  statute,   and  for  that  reason  a  trial  of  the  cause"  is  a  fatal  departure 

the  words  in  [  ]  may  be  omitted  in  the  from  the  statute.     Williams  v.   Baker, 

latter  state.  67  111.  238.     And  so  is  an  affidavit  stating 

2.  Af&davit  should  be  made  dtudng,  not  that  the  party  "cannot  safely  proceed 
before,  the  session  of  the  legislature  un-  to  the  trial"  in  the  absence  of  the 
der  both  the  Illinois  and  Missouri  stat-  counsel.  McClory  v.  Crawley,  59  111. 
utes.  Joiner  v.  Drainage  Comrs.,  17  App.  392.  But  compare  with  this  case 
111.  App.  607.  the  precedent  in   Form  No.  6269,  and 

3.  Actnal  attendance  npon  the  session  infra,  note  9,  this  page. 

must  be  shown   in  the   affidavit,  and  it  6.  In    Illinois   the   affidavit   may   be 

is   not   sufficient   to   state    merely  that  verified  before  the  clerk  of  the  court, 

counsel  intends  presently  to  be  in  at-  Harrigan  v.  Turner,  53  111.  App.  294. 

tendance.     Joiner  z/.  Drainage  Comrs.,  7.  It  was  held  to  be  reversible  error  to 

17  111.  App.  607.  overrule  a  motion  for  continuance  upon 

4.  See  supra,  note  5,  p.  325.  this  affidavit. 

5.  That  the  presence  of  counsel  is  neces-  8.  The  words  in  [  ]  are  not  found  in 
sary  need  not  be  stated;  a  general  state  the  reported  case,  but  have  been  added 
ment  in  the  language  of  the  statute  is  to  make  the  form  complete.  Consult 
sufficient.  Wicker  v.  Boynton,  83  111.  also  annotations  to  Form  No.  6268, 
545.     But   the   affidavit    should   either  supra. 

state  facts  as  to  the  character  of  the        9.  "Cannot  safely  proceed,"  etc.,  is  not 
suit,  so  as  to  enable  the  court  to  judge    in  the  words  of   the  statute  which  is 

326  Volume  5. 


6270. 


AD  JO  URNMENTS. 


6270. 


4.  For  Absence  of  Party.^ 

a.  Needed  as  a  Witness.* 

Form  No.  6270. 
(Precedent  in  Welcome  v,  Boswell,  54  Ind.  298.)* 


quoted  in  the  annotation  to  Form  No. 
6268,  supra,  together  with  cases  showing 
the  peril  of  paraphrasing  the  statute. 
In  this  case,  however,  the  circumstance 
that  the  absent  attorney  was  stated  to 
be  "the  principal  or  senior  counsel" 
may  have  prompted  the  court  to  de- 
clare that  "  the  affidavit  *  *  *  states 
*  *  *  that  the  presence  of  such  attor- 
ney was  necessary  to  a  full,  fair  and 
proper  trial  of  the  case." 

1,  Absence  of  party  as  a  ground  for 
continuance,  see  4  Encycl.  of  PI.  and 
Pr.  834  et  seq.,  relating  to  continu- 
ances on  the  ground  of  the  absence  of 
a  party,  coparty,  or  adverse  party,  and 
the  following  notes  to  this  form  and 
notes  to  Form  No.  6271,  infra. 

Who  may  Make.  —  The  affidavit  was 
made  by  the  party  himself,  in  Pate  v. 
Tait,  72  Ind.  450;  McClurg  v.  Ingle- 
heart,  (Ky.  1895)  33  S.  W. 'Rep.  81; 
Clark  V.  Carey,  41  Neb.  780;  bycounsel 
in  Simpson  v.  Simpson,  (Cal.  1895)  41 
Pac.  Rep.  804;  McBride  v  Stradley, 
103  Ind.  465;  Post  V.  Cecil,  11  Ind. 
App.  362;  Hefling  v.  Van  Zandt,  162 
111.  162;  Hodges  V.  Nash,  141  111.  392; 
Beard  v.  Mackey,  51  Kan.  131;  West  v. 
Hennessey,  63  Minn.  378;  by  the  agent 
of  the  party,  in  Sanford  v.  Cloud,  17  Fla. 
532;  by  the  secretary  of  the  defendant 
corporation,  in  Cerealine  Mfg.  Co.  v. 
Bickford,  I2g  Ind.  236;  Fisse  v-  Katzen- 
tine.  93  Ind.  490;  by  the  party,  his 
physician  and  his  counsel  in  Jaffe  v. 
Lilienthal,  loi  Cal.  175. 

2.  Statement  of  Proposed  Testimony, 
Defense,  etc.  —  Where  the  presence  of 
the  party  is  not  sought  merely  as  a 
witness,  but  for  aid  and  advice,  etc.,  it 
is  not  necessary  to  state  or  allude  to  the 
proposed  testimony  by  him.  Jaffe  v. 
Lilienthal,  loi  Cal.  175.  But  where  his 
presence  is  desired  as  a  witness  the 
affidavit  should  conform  to  the  require- 
ments of  affidavits  in  the  case  of  absent 
witnesses,  for  which  see  infra.  Forms 
Nos.  6272  to  6298,  so  that  the  affidavit 
must  set  forth  the  facts  expected  to  be 
proved,  and  their  materiality.  Hodges 
V.  Nash,  141  111.  391;  Hefling  v.  Van 
Zandt,  162  111.  162;  Fisse  v.  Katzen- 
tine,  93  Ind.  490;  McGehee  v.  Min- 
ter,  (Tex.  Civ.  App.  1894)  25  S.  W.  Rep. 


718;  Sanford  v.  Cloud,  17  Fla.  532, 
where  the  opinion  sets  forth  verbatim 
the  affidavit  upon  which  it  was  held 
that  a  continuance  was  rightly  refused. 

Diligence  used  to  procure  the  party's 
presence  or  the  testimony  must  be 
shown.  Hefling  v.  Van  Zandt,  162  111. 
162.  And  a  higher  degree  of  diligence 
must  be  shown  than  when  the  absent 
witness  is  a  stranger  to  the  suit.  Man- 
tonya  v.  Huerter,  35  111.  App.  27.  But 
it  need  not  show  that  he  has  been 
served  with  a  subpoena.  Douglass  v. 
Blakemore,  12  Heisk.  (Tenn.)  565. 

Inability  to  prove  the  same  facts  by 
other  witnesses  must  be  shown. 
Hodges  V.  Nash,  141  111.  392.  Consult 
also  note  2,  p.  343,  infra. 

Cause  of  party's  absence  must  be 
shown.  Hazen  v.  Pierson,  83  111.  241; 
Davis  V.  Foreman,  (Tex.  1892)  20  S.  W. 
Rep.  52.  "  Definitely  and  clearly."  Mc- 
Bride V.  Stradley,  103  Ind.  467,  holding 
"  sickness  in  his  family  "  not  a  sufficient 
averment.  Steele  v.  Com.,  3  Dana 
(Ky.)  84,  holding  "  circumstances  be- 
yond his  control"  insufficient.  And  if 
ill,  the  nature  of  the  party's  illness 
should  be  stated.  Pate  v.  Tate,  72  Ind. 
452.  See  also  Solomon  v.  State,  71 
Miss.  568. 

Beasonable  expectation  of  securing 
party's  presence  or  testimony  at  the  term 
to  which  it  is  sought  to  defer  the  trial 
must  be  shown.  Mantonya  v.  Huer- 
ter, 35  111.  App.  27.  Consult  also  note 
8,  p.  345,  infra. 

Admission  to  Obviate  Continuance. — 
See  Elliott  v.  Field,  21  Colo.  378; 
Kitchens  v.  Hutchins,  44  Ga.  620;  Pate 
V.  Tait,  72  Ind.  450;  Pruyn  v.  Gibbons, 
24  La.  Ann.  231. 

3.  "When  the  application  is  made 
on  account  of  the  absence  of  a  witness 
merely,  certain  formal  and  necessary 
facts  must  be  shown  by  the  affidavit  to 
entitle  the  party  to  a  continuance  {cit- 
ing statute,  now  Horner's  Stat.  (1896), 
§  410).  *  *  *  In  other  cases  good  cause 
only  need  be  shown  by  the  affidavit  or 
otherwise  {citing  statute,  now  Horner's 
Stat.  (1896),  §  411).  In  the  case  before 
us  the  applicant  was  more  than  a  wit- 
ness in  his  relations  to  the  action.  He 
was  also  a  defendant,  and  the  only  de- 


337 


Volume  5. 


6271.  CONTINUANCES  AND  6271. 

[(^Tiile  of  court  and  cause,  and  venue  as  in  Form  No.  6287.^]^  Thomas 
S.  Cog/ey,  being  duly  sworn,  on  his  oath  says,  that  he  is  attorney  for 
the  deiendant,  Frank  D.  Welcome^  \n  the  above  entitled  cause,  and 
that  he  makes  this  affidavit  for  and  on  his  behalf;  that  said 
Welcome  resides  at  Port  Huron  in  the  state  of  Michigan;  that  he  is 
detained  at  his  home  by  the  dangerous  illness  of  his  wife,  as  affiant 
is  informed  and  believes;  that  affiant  was  not  employed  in  the  de- 
fense in  time  to  get  the  deposition  of  said  defendant,  and  affiant  has 
been  informed  and  he  believes  that  the  defendant  has  been  anxiously 
watching  for  a  favorable  change  in  the  illness  of  his  wife,  so  he 
could  safely  leave  her  to  attend  the  trial  of  this  cause;  that  he, 
affiant,  believes  the  defendant  has  a  meritorious  defense  to  the  above 
action;  that  he  expects  to  prove  by  him  that  he  is  the  owner  of  the 
steam-tug  '•'■  Grace  Donner";  that  he  employed  the  plaintiff  to  take 
charge  of  said  vessel  as  master;  that  the  services  rendered  by  the 
plaintiff  for  the  defendant  were  as  master  of  said  steamer  and  in  no 
other  capacity;  that  the  plaintiff  as  such  master  received  all  the 
money  and  earnings  of  said  vessel  and  applied  them  to  the  payment 
of  himself  for  his  services  as  master;  that  said  plaintiff  not  only  paid 
himself  for  his  said  services  out  of  the  moneys  of  said  steamer  and 
of  the  defendant,  but  that  he  appropriated  large  sums  of  money 
earned  by  said  steamer  and  belonging  to  the  defendant,  in  excess  of 
the  indebtedness  of  defendant  to  "i^XzAXitx^  tiuo  or  three  hundred doWdss, 
as  affiant  is  informed  and  believes;  that  affiant  believes  the  defend- 
ant will  testify  to  the  above  facts,  and  that  he  believes  they  are  true; 
that  he  believes  the  testimony  of  said  defendant  can  be  procured  by 
the  next  term  of  this  court;  that  he,  affiant,  knows  of  no  other  wit- 
ness by  whom  he  can  prove  the  facts  above  set  forth,  whose  testi- 
mony can  be  as  readily  procured.  [(^Signature  and  Jurat  as  in  Form 
No.  6287. )y 

b.  Needed  for  Assistance  and  Advice.* 
Form  No.  6271. 

(  Title  of  court  and  cause,  and  venue  as  in  Form  No.  6287. )  John  Smith, 
being  duly  sworn,  deposes  and  says  that  he  is  the  sole  attorney  and 

fendant  in  the  cause.     The  rule,  there-  eludes  every  conclusion  that  the  appli- 

fore,  governing  the  application    for   a  cation    was    made    for    delay   merely, 

continuance  on  account  of  the  absence  *  *  *    We  think  that  in  the  exercise  of 

of  an  ordinary  witness  was  not,  in  our  a  proper  judicial  discretion  the  court 

opinion,   strictly  applicable  to  him   in  below   ought   to   have    continued    the 

the  motion   made  in  his  behalf  for  the  cause,  and   that  consequently  it  erred 

continuance  of  this  cause.     His  appli-  in  refusing   to   do   so."      Welcome   v. 

cation,  we  think,  was  not  within   any  Boswell,  54  Ind.  298. 

strict  statutory  rule,  but  was  addressed  For  another  case  of  reversible  error 

to   the  sound   legal   discretion   of   the  in  refusing  a  continuance  because  of 

court.     The   affidavit   shows  what  we  the  absence  of  a  party  on  account  of 

consider  a  reasonable  excuse   for  the  his  illness  see  Douglass  v,  Blakemore, 

absence  of  the   appellant   [defendant]  12  Heisk.  (Tenn.)  564. 

when  the  motion  for  a  continuance  was  1.  The  words  to  be  supplied  in  [  ] 

entered.     It  also  shows  the  materiality  are  not  found  in  the  reported  case, 

and  importance  of  the  proposed  testi-  2.  Absence  of  Party  Needed  for  Assist- 

mony  of  the  appellant  to  the  issues  in  ance  and  Advice.  —  "It  is   unquestion- 

the  cause.     By  its  terms  it  fairly  ex-  ably  an  important  privilege  of  the  party 

828  Volume  5. 


6271. 


AD  JO  URNMENTS. 


6271. 


counsel  for  the  defendant  in  the  above  entitled  cause  and  that  he  can- 
not safely  go  to  trial  without  the  presence  of  his  client,  who  is  now 
absent  in  Europe.  The  plaintiff's  action  is  brought  to  recover  dam- 
ages for  an  alleged  breach  of  warranty  in  a  contract  of  sale  by 
the  defendant  to  the  plaintiff  oifour  automatic  machines  for  turning 
the  heads  of  carriage  bolts. 


to  be  present  at  the  trial  of  his  cause, 
which  should  not  be  denied  on  applica- 
tion made,  unless  for  weighty  reasons." 
Elliott  V.  Field,  21  Colo.  378,  holding 
that  a  continuance  was  properly 
granted;  Jaffe  v.  Lilienthal,  loi  Cal. 
175,  granting  a  new  trial  for  refusal  of 
continuance;  Pate  v.  Tait,  72  Ind.  452; 
Beard  v.  Mackey,  51  Kan.  133.  See 
also  annotations  to  Form  No.  6270, 
supra. 

That  a  party,  especially  a  sole  party, 
stands  in  a  different  attitude  from  an 
ordinary  witness  in  respect  of  his  ap- 
plication for  a  continuance  was  affirmed 
in  Post  V.  Cecil,  11  Ind.  App.  364  (and 
conceded  by  the  dissenting  opinion 
therein),  granting  a  new  trial  for  refusal 
of  a  continuance;  citing  Welcome  v. 
Boswell,  54  Ind.  297,  which  furnished 
the  precedent  for  Form  No.  6270,  supra. 
But  his  voluntary  absence  by  reason  of 
prior  engagements  is  not  a  ground  for 
continuance.  West  v.  Hennessey,  63 
Minn.  378. 

Moreover,  the  presumption  is  in  fa- 
vor of  the  action  of  the  court,  and  the 
refusal  of  a  continuance  will  not  be 
ground  for  a  new  trial  unless  it  is 
affirmatively  shown  to  have  been  an 
abuse  of  discretion.  Bowling  v.  What- 
ley,  53  Ga.  24;  Harris  v.  Rose,  26  111. 
App.  237;  Fisse  V.  Katzentine,  93  Ind. 
490;  Pate  V.  Tait,  72  Ind.  452;  Beard  v. 
Mackey,  51  Kan.  131;  McClurg  v.  In- 
gleheart,  (Ky.  1895)  33  S.  W.  Rep.  81; 
Labouisse  v.  Orleans  Cotton  Rope, 
etc.,  Co.,  43  La.  Ann.  582;  Owens  v. 
Tinsley,  21  Mo.  423;  Solomon  v.  State, 
71  Miss.  568.  Nor  where  the  error,  if- 
any,  appears  to  have  been  harmless. 
Simpson  v.  Simpson,  (Cal.  1895)41  Pac. 
Rep.  804;  Bowling  v.  Whatley,  53  Ga. 
24;  Hazen  v.  Pierson,  83  111.  241.  See 
also  State  v.  Rogers,  56  Kan.  362. 

Necessity  for  Motion  and  Affidavit. — 
In  Montgomery  v.  Wilson,  58  Ind.  591, 
the  record  set  forth  in  the  bill  of  ex- 
ceptions recited  that  "  Now  come  the 
parties  by  their  attorneys,  *  *  *  and 
said  cause  being  called  for  trial,  the 
said  [attorney]  on  behalf  of  the  defend- 
ant objected  to  going  into  the  trial  at 
the  present  hour  of  the  day,  on  account 


of  the  absence  of  his  client,  who  was 
old  and  infirm  in  health,  and  unable  to 
attend  court";  but  the  court  proceeded 
to  trial  and  judgment.  In  affirming 
the  judgment,  it  was  said:  "There  is 
no  substantial  fact  here  shown  why  the 
court  should  have  delayed  the  trial  — 
no  affidavit  for  a  continuance,  no  motion 
for  a  continuance,  only  the  objection  of 
the  attorney,"  etc. 

That  the  party's  presence  is  essential 
"  must  be  shown,  when  the  case  is 
called  for  trial,  by  an  affidavit  setting 
forth  the  special  circumstances  which 
sustain  and  justify  the  application." 
Cowperthwaite  v.  Miller,  2  Phila.  (Pa.) 
219. 

Time  to  Prepare  Application.  —  Refusal 
to  grant  counsel  time  to  prepare  and 
present  a  formal  application  in  writing 
for  a  continuance  on  the  ground  of  the 
absence  of  his  client,  is  reversible  error 
where  the  record  fails  to  show  any  rea- 
son for  denial  of  the  privilege.  Mayton 
V.  Guild,  (Tex.  Civ.  App.  1894)  29  S. 
W.   Rep.  218. 

Application  After  Trial  Begnn.  —  The 
application  is  made  too  late  after  the 
jury  are  impaneled  and  the  trial  has 
begun.  Leavitt  v,  Kennicott,  54  111. 
App.  633.  See  also  Cowperthwaite  v. 
Miller,  2  Phila.  (Pa.)  219. 

Beqoisites  of  Affidavit. —  The  affidavit 
must  clearly  show  that  the  presence  of 
the  absent  party  is  necessary.  National 
Exch.  Bank  v.  Walker,  80  Ga.  281; 
Cowperthwaite  v.  Miller,  2  Phila.  (Pa.) 
219.  See  also  Telford  v.  Brinkerhoff, 
45  111.  App.  5S8.  And  that  he  is  pos- 
sessed of  knowledge  not  shared  by  his 
counsel.     Beard  v.  Mackey,  51   Kan. 

133- 
Coonter-affidavits      or      Testimony.  — 

Whatever  may  be  the  result  of  the  con- 
flicting authorities  as  to  the  admissi- 
bility of  counter-affidavits  to  resist  an 
application  for  continuance  on  the 
ground  of  the  absence  of  a  witness  (see 
annotations  to  Form  No.  6308),  it  seems 
to  be  wholly  within  the  discretion  of 
the  court  to  receive  counter-affidavits 
or  testimony  where  a  continuance  is 
asked  for  the  absence  of  a  party  to  the 
suit  whose  presence  is  not  desired 
i9  Volume  5. 


6271.  CONTINUANCES  AND  6271. 

The  affiant  says  that  to  the  best  of  his  information  and  belief  the 
defendant's  defense  is^  that  the  machines  sold  by  him  to  the  plaintiff 
were  warranted  only  to  turn  bolts  either  of  Norway  iron  or  of  iron  as 
soft  as  Norway  iron,  and  that  plaintiff  used  the  machines  for  turning 
bolts  made  of  a  certain  iron  called  ^^ charter  oak"  which  is  much 
harder  than  Norway  iron,  thus  subjecting  the  machines  to  a  greater 
strain  than  they  were  warranted  to  sustain  and  necessitating  constant 
repairs,  which  were  made  by  ignorant  and  unskilled  mechanics. 

The  affiant  says  that  the  defendant  is  a  skilled  machinist  and 
inventor  of  automatic  machinery  and  has  a  thorough  knowledge  of 
the  various  grades  and  brands  of  iron  and  steel;  that  he  has  exclu- 
sive knowledge  of  the  details  of  the  defense,  and  is  the  only  person 
who  knows  the  names  and  whereabouts  of  the  expert  witnesses  neces- 
sary to  be  called  on  his  behalf;  that  his  peculiar  knowledge,  informa- 
tion and  technical  skill  render  it  indispensable  to  a  proper  presenta- 
tion of  his  side  of  the  case  that  he  should  be  personally  present  in 
order  to  give  his  aid  and  advice  as  to  the  conduct  and  management 
of  the  trial  and  the  examination  and  cross-examination  of  witnesses 
upon  the  technical  details  of  the  case. 

Affiant  says  that  the  facts  of  the  defendant's  case  were  communi- 
cated by  the  defendant  to  his  attorney,  George  /ones,  of  Indianapolis, 
who  with  the  defendant's  assistance  was  prepared  and  expected  to 
try  the  case  at  the  time  when  it  was  set  down  for  trial,  but  the  said 
Jones  died  three  weeks  ago  and  the  affiant,  who  was  thereupon  for 
the  first  time  employed  in  the  case  by  the  defendant's  agent,  has 
been  unable  to  get  important  papers  and  memoranda  relating  to  the 
case  which  were  in  the  possession  of  the  said  Jones,  although  as  soon 
as  employed  he  wrote  and  afterward  telegraphed  to  said  Jones  s  son 
and  clerk  to  forward  to  him  all  such  papers  as  soon  as  possible. 

The  absence  of  the  defendant  is  because  of  the  following  facts: 
(^Here  state  the  reasons  for  the  defendant's  absence  and  his  efforts  to  be 
present  in  time  for  the  trial.y^ 

merely  as  a  witness.     McClurg  v.  In-  importance  of  the  defendant's  presence 

gleheart,  (Ky.  1895)  33  S.  W.   Rep.  80,  but  an  insufficient  showing  of  diligence 

where  a  physician  was  allowed  to  testify  to   secure   his  attendance.     Hefling  v. 

that  the  defendant  was  not  physically  Van   Zandt,    162    111.    162,    where    the 

unable  to  be  present  as  stated  in  de-  affidavit  was  insufficient  on  the  same 

fendant's  affidavit  for  a   continuance,  point.     Clark  v.   Carey,   41   Neb.   780, 

See  also  Bowling  v.  Whatley,  53   Ga.  where  the  defendant's  good  faith  was 

24;  McElveen  Commission  Co.  v.  Jack-  doubtful.     Jaffe  v.  Lilienthal,  loi  Cal. 

son,  94  Ga.  549.  175,  where  the  affidavit  was  held  suf- 

1.  Good  Cause  of  Action  or  Defense.  —  In  iicient  in  every  particular  and  a  new 
Fisse  V.  Katzentine,  93  Ind.  494,  the  trial  was  granted  for  refusal  to  allow  a 
court    held    the    defendant's    affidavit  continuance. 

insufficient,  because,  among  other  In  Pate  v.  Tait,  72  Ind.  450,  the  de- 
things,  it  did  not  show  any  defense  to  fendant's  affidavit,  after  stating  what 
the  action,  citing  Montgomery  v.  Wil-  his  testimony  would  be,  and  the  fact  of 
son,  58  Ind.  591.  See  also  Beard  v.  his  sickness  and  inability  to  attend 
Mackey,  51  Kan.  133;  Telford  r.  Brink-  court,  his  residence  in  the  county,  and 
erhoff,  45  111.  App.   588.  other  formal  matters,  continued  as  fol- 

2.  See  Cerealine  Mfg.  Co.  v.  Bick-  lows:  "And  he  further  says  that  his 
ford,  129  Ind.  236,  containing  copious  presence  at  the  trial  of  said  cause  is 
extracts  from  the  affidavit,  which  was  necessary  to  the  proper  defense  thereof; 
held  to  make  a  sufficient  showing  of  the  that  it  is  necessary  to  his  proper  defense 

330  Volume  5. 


6272. 


AD  JO  URNMENTS. 


6272. 


Affiant  further  says  that  he  is  thoroughly  satisfied  and  believes 
that  said  defendant  has  not  absented  himself  for  the  purpose  of  delay; 
that  the  affiant  expects  and  fully  believes  that  said  defendant  will  be 
present  at  the  next  term  of  this  court,  and  that  said  defendant  will 
then  be  able  to  and  will  take  charge  of  and  conduct  said  case,  and 
be  present  at  the  trial  to  aid  and  assist  in  the  defgnse.  {Signature 
and  jurat  as  in  Form  No.  6287.^ 

6.  Fop  Absence  of  Witness.! 


)In 

\  0£ 


a.  In  General. 
Form  No.  6272. 

the  Circuit  Court. 


October  ^tvm,  iS97. 


[The  State  of  Alabama, 

Dale,  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

The   State  of  Alabama,  ] 

County  of  Dale.  f 

Before  me,  Calvin  Clark,  clerk  of  the  Circuit  Court  in  and  for  the 


that  he  be  personally  present  at  said 
trial  in  order  that  he  may  advise  and 
confer  with  his  counsel  during  the  prog- 
ress of  said  trial,  and  that  he  desires 
to  be  present  at  said  trial,  and  would 
be  present  now  but  for  his  inability  to 
be  there  on  account  of  said  sickness." 
It  was  held  that  there  was  no  error 
in  refusing  a  continuance.  "  There  was 
nothing  in  the  affidavit,"  said  the  court, 
"  to  show  when,  if  ever,  the  defendant 
would  or  expected  to  be  able  to  be  in 
attendance.  The  nature  of  the  sickness 
was  not  shown,  nor  the  age  and  general 
condition  of  health  of  the  defendant. 
For  aught  that  appears  the  court  may 
have  had  reason  to  believe  that  the  de- 
fendant would  never  be  able  to  attend 
the  trial.  In  fact  the  defendant  died 
thereafter,"  etc.,  and  "if  a  new  trial 
were  granted  *  *  *  he  could  not  at- 
tend it." 

1.  For  provisions  relating  to  continu- 
ances on  account  of  absent  witnesses 
in  the  various  jurisdictions  consult  the 
following: 

Alabama. — Circuit  and  Inferior  Ct. 
Rules,  No.  16  (Civ.  Code  (1886),  p. 
808);  Chancery  Rules  Nos.  71,  72  (Civ. 
Code  (1886),  p.  824). 

Arizona. —  Rev.  Stat.  (1887),  §  752; 
Pen.  Code  (1887),  §  1606. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§§2157,  2158,  5797. 

California.  —  Code  Civ.  Proc.  (1897), 
§  595;  Pen.  Code  (1897),  §  1052. 


Colorado.  —  Mills'  Anno.  Code  (1896), 
§177;  Mills'  Anno.  Stat.  (1891),  §  2113. 

Connecticut.  —  Gen.  Rules  of  Prac, 
No.  VIII,  §  2.  _  See  also  infra.  Form 
No.  6273. 

District  of  Columbia.  —  Comp.  Laws 
(1894),  c.  LV,  §  120. 

Florida.  —  See  Harrell  v.  Durrance,  9 
Fla.  500;  Sanford  v.  Cloud,  17  Fla.  543; 
Gladden  v.  State,  12  Fla.  562;  Green  v. 
King,  17  Fla.  457.  See  also  infra.  Form 
No.  6283. 

Georgia. —  2  Code  (1895),  §  5129;  3 
Code  (1895),  §  962.  See  also  infra.  Form 
No.  6284. 

Idaho.  —  Rev.  Stat.  (1887),  §§  4372, 
7795;  Territory  v.  Guthrie,  2  Idaho 
403- 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  3036,  par.  43  (Prac.  Act,  c. 
no,  §  43).  See  also  infra.  Forms  Nos. 
6285,  6286. 

Indiana.  —  Horner's  Stat.  (1896),  §§ 
410,  1781.  See  also  infra.  Forms  Nos. 
6287,  6288. 

Iowa.  —  Code  (1897),  §  5370.  See  also 
infra.  Forms  Nos.  6289,  6290. 

Kansas.  —  Gen.    Stat.    (1897),    c.    95, 

§  329- 

Kentucky. —  Bullitt's  Civ.  Code  1895), 
§  315;  Bullitt's  Crim.  Code (1895),  §  189. 
See  also  Simms  v.  Alcorn,  i  Bibb  (Ky.) 
348;  Carrz/.  Marshall,  i  Bibb  (Ky.) 363. 
See  also  precedent  infra,  note  3,  p.  358. 

Louisiana.  —  Garland's  Rev.  Code 
(1894),  §  464  et  seq.     The    motion   must 


381 


Volume  5. 


6272. 


CONTINUANCES  AND 


6272. 


county  aforesaid,  personally  appeared  John  Doe  (or  Richard  Roe),^ 


be  supported  by  affidavit.  Winchester 
V.  Rightor,  12  La.  256;  State  v.  Roun- 
tree,  32  La.  Ann.  1144;  Thompson  v. 
Mississippi  M.  &  F.  Ins.  Co.,  2  La.  234; 
Roby  V.  Brown,  14  La.  247.  Contra, 
where  the  motion  for  postponement  is 
only  from  evening  to  the  following 
morning  in  order  to  enable  a  witness 
summoned  and  in  town  to  get  in  con- 
dition to  testify.  Leckie  v.  Crane,  12 
La.  432. 

Maine.  —  Supreme  Judicial  Ct.  Rules 
(1896),  No.  XV. 

Maryland.  — Y'Mh.  Gen.  Laws  (1888), 
art.  75,  §  57  ^t  seq. 

Massachusetts.  —  Supreme  Ct.  Rules 
(Com.  Law),  No.  34. 

Michigan.  —  Circuit  Ct.  Rules,  No. 
22;  Chancery  Rules,  No.  15.  See  also 
infra.  Form  No.  6275. 

Minnesota.  —  Stat.  (1894),  §§  5366, 
7321. 

Mississippi. — Anno.  Code  (1892),  §  723. 

Missouri.  —  Burns'  Anno.  Pr.  Code 
(1896),  §  497  et  seq.\  Rev.  Stat.  (1889), 
§  4181  et  seq.  See  also  infra.  Form  No. 
6291. 

Montana.  —  Code  Civ.  Proc.  (1895), 
§  1039;  Pen.  Code  (1895),  §  2010  et  seq. 
See  also  infra.  Form  No.  6292. 

Nebraska.  —  Seeinfra,  Form  No.  6293, 
and  annotations  thereto. 

Nevada.  — Gtn.  Stat.  (1885),  §§  3182, 
4198.    See  also  precedent  infra,  note  on 

P-  359- 

New  Hampshire.  —  Supreme  Ct. 
Rules,  No.  30. 

New  Jersey. —  See   infra.    Form    No. 

6276,  and  annotations  thereto. 

New  Mexico.  —  Comp.  Laws  (1884), 
§  2049  et  seq. 

New  York.  —  See   infra,    Form    No. 

6277,  and  annotations  thereto. 

North  Carolina.  —  Code  Civ.  Proc. 
(1891),  §  401  et  seq. 

North  Dakota.  —  District  Ct.  Rules, 
No,  32  (3  N.  Dak.  xxxi);  Rev.  Codes 
(1895),  §  8141.  See  also  infra.  Form 
No.  6278. 

Ohio.  —  Supreme  Ct.  Rules,  No.  23; 
Ct.  Com.  PI.  Rules  (Cuyahoga  Co.), 
Nos.  19a,  20a. 

Oklahoma.  —  Stat.  (1893),  §§  4207, 
5162. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§§  179,  1344. 

Pennsylvania.  —  See  infra.  Form  No. 
6277,  and  annotations  thereto. 

Rhode  Island.  —  Rules  of  Prac,  No.  16 
et  seq.  (15  R.  \.  634  et  seq.).  See  also 
infra.  Form -No.  6279. 


South  Carolina.  —  Circuit  Ct.  Rules, 
No.  27.    See  also  infra.  Form  No.  6280. 

South  Dakota. —  Circuit  Ct.  Rules  (6th 
Jud.  Cir.),  No.  29.  See  also  ?«/ra,  Form 
No.  6294. 

Tennessee,  —  Code  (1896),  §  4662. 

Texas.  —  Rev.  Stat.  (1895),  art.  1277 
et  seq.  See  also  infra.  Forms  Nos.  6295 
to  6298,  and  notes  thereto. 

Utah. —  Comp.  Laws  (1888),  §§  3353, 
5003. 

Vermont. —  Supreme  Ct.  Rules,  No.  9. 

Virginia.  — See  precedent  infra,  note 
3.  ?•  35S-9,  and  authorities  there  cited. 
See  also  infra,  Form  No.  6281. 

Washington.  —  2  Hill's  Anno.  Stat. 
(1891),  §§  338,  1296. 

West  Virginia.  —  See  Wilson  v. 
Wheeling,  19  W.  Va.  323;  Dimmey  v. 
Wheeling,  etc.,  R.  Co.,  27  W.  Va.  32. 

Wisconsin.  —  Circuit  Ct.  Rules,  No. 
20  (Sanb.  &  B.  Anno.  Stat.,  §  2845, 
note).     See  also  infra.  Form  No.  6282, 

Wyoming.  —  Rev.  Stat.  (1887),  §3397 
et  seq. 

Federal  Courts.  —  An  affidavit  for  con- 
tinuance in  a  civil  case  should  conform 
in  its  substantive  allegations  to  the 
practice  in  the  courts  of  record  of  the 
state  in  which  the  federal  court  is  held 
(U.  S.  Rev.  Stat.,  §  914),  except, 
however,  that  the  sufficiency  of  the 
averment  of  diligence  to  obtain  the 
testimony  of  the  witness  is  to  be  tested 
by  the  laws  of  the  United  States  rather 
than  by  the  practice  in  the  state  courts. 
Texas,  etc.,  R.  Co.  v.  Nelson,  50  Fed. 
Rep.  814,  referring  as  to  diligence  to 
the  U.  S.  Rev.  Stat.,  §§  876,  877. 

1.  Who  may  Make  Affidavit. —  See  list 
of  statutes,  etc.,  cited  supra,  note  I, 
p.  331,  note  3,  p.  317. 

Arizona. —  Rev.  Stat.  (1883),  §  3. 

Arkansas, —  In  Turner  v.  Eustis,  8 
Ark.  119,  the  affidavit  was  made  by  the 
party's  attorney,  and  not  criticised  in 
that  particular,  although  held  defective 
on  other  grounds. 

California. —  In  People  z/.  Jenkins,  56 
Cal.  5,  the  affidavit  was  made  on  behalf 
of  the  defendant  by  his  attorney,  and 
under  the  circumstances  it  was  held 
that  the  motion  for  continuance  was 
properly  overruled.  The  court  said: 
"An  attorney  cannot,  in  the  nature 
of  things,  be  supposed  to  have  cogni- 
zance of  the  witnesses  to  an  alleged 
criminal  transaction  or  of  the  facts 
which  they  can  prove  in  relation  to  it, 
except  so  far  as  he  may  have  been  in- 
formed of  one  or  the  other  by  his  client. 


882 


Volume  5. 


6272. 


AD  JO  URNMENTS. 


6272. 


who  being  duly  sworn  deposes  and  says:^].^ 


Upon  such  a  subject  affidavits,  when  re- 
quired, should  be  made  by  the  defendant 
himself  or  some  one  who  has  direct 
knowledge  of  the  facts." 

Colorado.  —  In  Glenn  v.  Brush,  3 
Colo.  31,  affidavit  was  made  by  party's 
attorney,  but  discussed  and  overruled 
on  its  merits. 

Florida.  —  Consult  Form  No.  6283 
infra,  and  notes  thereto. 

Georgia.  —  Consult  Form  No.  6284 
infra,  and  notes  thereto. 

Iowa.  —  "Must  be  founded  on  the 
affidavit  of  the  party,  his  agent  or  at- 
torney." Miller's  Anno.  Code  (1890), 
§2750.  In  Widner  v.  Hunt,  4  Iowa 
357,  where  the  refusal  of  a  continuance 
was  sustained,  the  court  said:  "  The 
affidavit  is  made  by  the  plaintiff's  at- 
torney, who  states  that  he  had  once 
before  tried  the  cause,  and  is  as 
well  acquainted  with  the  facts  as 
the  plaintiff  himself.  He  deposes 
that  he  was  not  advised  of  the 
inability  of  the  witness  to  be  in  at- 
tendance at  that  term  of  the  court  until 
so  informed  by  the  sheriff  on  the  pre- 
vious day.  No  reason  is  given  why 
this  affidavit  was  not  made  by  the 
plaintiff  himself.  In  the  absence  of  the 
party  there  is  no  good  re.ason  why  it 
may  not  be  made  by  the  attorney,  if 
the  interest  of  his  client  requires.  It  is 
not  shown  in  this  case,  however,  that 
the  client  was  not  present  and  able  to 
make  the  necessary  affidavit  himself. 
It  is  not  competent  for  the  attorney  to 
swear  to  facts  which  are  solely  within 
the  knowledge  of  his  client.  The  sec- 
ond affidavit  does  not  allege  that  the 
fact  of  the  inability  of  the  witness  to  at- 
tend the  court  was  not  known  to  the 
plaintiff  before  the  term  and  in  time 
to  have  her  testimony  taken  by  depo- 
sition." 

Kansas.  — Should  generally  be  made 
by  the  party  asking  the  continuance. 
Baker  v.  Knickerbocker,  25  Kan.  288. 
When  made  by  some  other  person,  the 
reason  therefor  should  generally  in 
some  manner  be  shown,  as  that  the 
applicant  was  absent,  or  that  the  per- 
son making  the  affidavit  was  better 
acquainted  with  the  facts  stated  therein. 
Clouston  V.  Gray,  48  Kan.  34. 

Kentucky.  —  May  be  made  by  any  per- 
son professing  to  be  informed  as  to  the 
facts  which  the  absent  witness  will 
state.  Hardesty  v.  Com.,  88  Ky.  537, 
holding  that  the  act  of  May  15,  1886 
(appended      to    Bullitt's    Crim.    Code 


(1889),  §  189)  is  not  intended  to  confine 
the  right  to  make  the  affidavit  to  the 
defendant  alone.  In  the  case  above 
cited,  the  affidavit  made  by  a  stranger 
to  the  record  stated  that  the  party  on 
whose  behalf  it  was  made  was  insane. 

Louisiana.  —  Ordinarily,  it  is  neces- 
sary that  the  affidavit  shall  be  made 
by  the  party  himself  and  not  by  his 
attorney.  Lizardi  v.  Arthur,  16  La. 
579;  Beatty  v.  Tete,  9  La.  Ann.  129. 
See  also  Brander  v.  Flint,  10  La.  391. 
But  in  Benne  v.  Tourne,  2  La.  462,  the 
court  said  :  "  If  the  case  be  such  a  one 
as  presents  a  fair  apology  for  the  party 
not  being  present  himself  in  court,  we 
think  the  person  who  represents  him 
may  make  the  necessary  affidavits." 
See  also  Lizardi  v.  Arthur,  16  La.  579; 
State  V.  Boitreaux,  31  La.  Ann.  188. 

Nebraska.  —  See  infra,  note  4,  p.  394. 

New  Mexico.  —  In  Faulkner  v.  Terri- 
tory, 6  N.  Mex.  464,  the  affidavit  was 
made  by  the  party's  attorney. 

Washington. — Should  be  made  by 
attorney,  not  by  the  party,  where  the 
former  is  alone  cognizant  of  the  neces- 
sary facts.  State  v.  Wilson,  9  Wash. 
218,  where  the  affidavit  of  the  defend- 
ant stated  that  his  counsel  had  "  made 
unceasing  efforts  to  ascertain  the 
whereabouts  of  said  witness."  The 
defendant  had  been  in  jail,  and  his 
statement  was  merely  hearsay. 

1.  Commencement  of  affidavit  when 
running  in  the  first  person  may  be  as 
follows:  "  I,  John  Doe  (or  Richard 
Roe),  being  duly  sworn  on  oath 
say,"  or  words  of  like  effect.  See  the 
title  Affidavits,  vol.  i,  p.  556  et  seq. 

2.  For  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits,  vol. 
I,  p.  548  etscq. 

Variance  between  Affidavits  and  Plea.  — 
In  Golden  v.  State,  19  Ark.  590,  defend- 
ant was  indicted  by  the  name  of 
"  Harrison  Golden,"  and  in  this  name 
pleaded  not  guilty.  He  filed  a  motion 
and  affidavit  for  continuance,  the  mo- 
tion being  embodied  in  an  affidavit  and 
consisting  of  one  document,  which  was 
entitled  and  commenced  as  follows: 
"  State  V.  Harrison  Golden.  And  the 
said  defendant,  who  is  indicted  by  the 
name  of  Harrison  Golden,  in  his  proper 
person  and  by  his  proper  name  of 
Alexander  Golden,  comes  and,  being 
duly  sworn  according  to  law,  says." 
etc.  This  motion  and  affidavit  was 
signed  "Alexander  Golden."  It  was 
held  by  a  divided  court  that  the  paper 


333 


Volume  5. 


6272. 


CONTINUANCES  AND 


6272. 


I.  That  affiant  is  (or  /  ani)  the  plaintiff  (or  defendani)  in  the  above 
entitled  cause. 

II.  That  affiant  (or  /)  cannot  safely  proceed  to  (or  go  into)  the 
trial  of  this  cause  at  t;he  present  term  of  this  court  on  account  of 
the  absence  (or  for  the  want  of  the  testimony)  of  George  Jones, "^  who  (Js 


was  properly  stricken  from  the  file  be- 
cause it  was  not  filed  in  the  name  by 
which  defendant  was  indicted  and  in 
which  he  had  pleaded. 

1.  Cannot  Ssifely  Proceed  to  Trial.  — 
The  court  must  be  satisfied  that  the 
party  cannot  safely  proceed  to  trial 
without  the  testimony  of  the  absent 
witness.  Danielson  v.  Gude,  ii  Colo. 
87.  And  it  should  be  alleged  that  the 
party  cannot  safely  go  to  trial  for  want 
of  the  testimony  of  an  absent  witness. 
Dimmey  v.  Wheeling,  etc.,  R.  Co.,  27 
W.  Va.  32;  Wilson  v.  Wheeling,  ig  W. 
Va.  323;  Wilson  v.  Kochnlein,  i  W.  Va. 
145.  Consult  also  list  of  statutes,  etc., 
cited  supra,  note  I,  p.  331. 

Name  and  Besidence  of  Absent  Witness 
—  Generally.  —  In  Smith  v.  Dobson,  2 
D.  &  R.  420,  16  E.  C.  L.  100,  and 
Brown  v.  Murray,  4  D.  &  R.  830,  note 
a.,  16  E.  C.  L.  224,  it  was  held  that 
in  a  first  application  the  name  of  the 
witness  need  not  be  stated;  but  in 
Smith  V.  Barker,  3  Day  (Conn.)  280,  a 
case  in  the  United  States  circuit  court, 
it  was  said  that  "  the  name  of  the  wit- 
ness must  always  be  disclosed  *  *  * 
unless  there  are  circumstances  to  show 
that  the  party,  without  any  fault  of 
his,  was  unable  to  learn  his  name." 
In  many  of  the  states  it  is  expressly 
required  by  statute,  or  rule  of  court, 
that  the  name  and  residence  of  the 
witness,  if  known,  shall  be  stated,  and 
in  the  absence  of  such  provisions  this 
is  believed  to  be  the  universal  prac- 
tice. See  list  of  statutes,  etc.,  cited 
supra,  note  i,  p.  331,  and  the  cases 
cited  infra,  this  note. 

Arkansas.  —  The  statute  does  not 
expressly  require  it,  but  the  averment 
is  doubtless  essential  in  order  to  iden- 
tify the  witness  in  connection  with 
\averments  of  diligence  used  to  obtain 
his  testimony.  See  Jackson  v.  State, 
54  Ark.  243. 

California.  —  Should  state  the  name 
of  the  witness.  Carey  v.  Philadelphia, 
etc.,  Petroleum  Co.,  33  Cal.  694. 

Colorado.  —  The  code  does  not  ex- 
pressly require  it,  but  the  affidavit  is 
regarded  as  defective  without  the  aver- 
ment. Michael  v.  Mills,  22  Colo.  439; 
Dawson  v.  Coston,  18   Colo.  493;  un- 


less it  is  shown  that  sufficient  dili- 
gence has  been  used  to  ascertain  the 
name  and  residence  of  the  witness. 
Wilson  V.  People,  3  Colo.  325;  Outcalt 
V.  Johnston,  9  Colo.  App.  519,  holding 
that  a  mere  statement  that  efforts  had 
been  used  to  ascertain  the  whereabouts 
of  the  witness,  but  not  stating  in  what 
the  efforts  consisted,  was  not  sufficient. 
See  also  Litchfield  v.  Daniels,  i  Colo. 
268. 

Idaho.  —  As  to  the  residence  of  the 
witness,  see  Herron  v.  Jury,  r  Idaho 
164. 

Kansas. — If  it  appear  that  the  wit- 
nesses's  whereabouts  are  unknown,  the 
affidavit  must  state  specific  acts  of 
diligence  in  making  inquiries,  and 
when  and  of  whom  the  inquiries  were 
made.  Clouston  v.  Gray,  48  Kan.  31; 
Struthers  v.  Fuller,  45  Kan.  735;  Kil- 
mer V.  St.  Louis,  etc.,  R.  Co.,  37  Kan. 
84.  A  statement  that  affiant  had  made 
"numerous  inquiries"  was  held  in- 
sufficient.    Bliss  V.   Carlson,   17   Kan. 

325. 

Kentucky.  —  Though  not  expressly 
required  by  statute,  the  averment 
should  be  made.  See  Benge  i/.  Com., 
92  Ky.  i;  McClurg  v.  Ingleheart,  (Ky. 
1895)  33  S.  W.  Rep.  80;  Earp  v.  Com., 
9  Dana  (Ky.)  301. 

Louisiana.  —  Not  expressly  required 
by  statute,  but  should  be  stated  if 
known.  Huff  v.  Freeman,  15  La.  Ann. 
240;  Barron  v.  Mertens,  14  La.  Ann. 
305;  State  V.  Morgan,  39  La.  Ann.  214; 
Brown  v.  Forsyth,  10  Rob.  (La.)  116.   ■ 

Minnesota.  —  Should  be  stated.  Low- 
enstein  v.  Greve,  50  Minn.  383. 

Mississippi.  —  In  Lundy  v.  State,  44 
Miss.  673,  the  affidavit  was  criticised 
because  "  the  witness  is  stated  to  have 
been  in  the  jurisdiction  of  the  court, 
but  his  residence  or  whereabouts  is  not 
given." 

Nebraska.  —  Consult  Form  No.  6293, 
infra,  and  note. 

Nevada.  —  Should  be  given  if  known, 
though  not  expressly  required  by  stat- 
ute. If  the  whereabouts  of  the  witness 
is  unknown,  the  affidavit  should  show 
reasonable  efforts  to  ascertain  the  same. 
State  V.  Chapman,  6  Nev.  320. 

Sufficiency  of  averment  relating  to  the:: 


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6272. 


now  absent  and^  resides  in  {stating  place  of  residence').  [And  that  affiant 
(or  /)  verily  believe(j)  this  cause  cannot  be  tried  with  justice  to 
himself  (or  myself)  without  the  testimony  of  the  said  George  Jones  ?^ 
[Or  II.  That  affiant  (or  /)  cannot  safely  proceed  to  (^or go  into)  the 
trial  of  this  cause  at  the  present  (or  next)  term  of  this  court  (t/ie 
same  being  the  term  at  which  this  cause  is  regularly  triable),  on  account 
of  the  {expected)  absence  of  George  Jones,  who  resides  at  {stating 
place  of  residence),  ("and  that  the  grounds  of  affiant's  (or  my)  expec- 
tation of  the  nonattendance  of  the  said  George  Jones  at  the  next 
term  of  this  court  are  as  follows,"  stating  grounds  of  expectation)^ 

III.  That  said  George  Jones  is  a  material  witness  on  the  part  of  this 
affiant  (or  on  my  behalf)."^ 

[Or  III.  That  said  George  Jones  is  a  material,  competent  and  proper 
witness  in  this  suit.]* 

[Or  III.  That  the  testimony  of  the  said  witness  is  material  for 
establishing  the  affiant's  claim  (or  supporting  affiant's  defense).^  * 

IV.  That  affiant  expects®  (or  I  expect)  to  prove  by  the  said  George 
Jones  that  {State  facts  expected  to  be  proved)? 


name  and  residence  of  the  absent  wit- 
ness as  a  compliance  with  the  statu- 
tory requirement,  see  infra,  note  2, 
p.  364. 

For  necessity  of  showing  diligence  in 
ascertaining  the  residence  or  where- 
abouts of  a  witness  when  unknown, 
see  infra,  note  5,  p.  339. 

Althoogh  name  and  residence  of  wit- 
ness were  both  unknown,  an  affidavit  may 
be  sufficient  under  peculiar  circum- 
stances; for  illustration  see  infra. 
Form  No.  6286. 

1.  The  words  enclosed  by  [  ]  should 
be  inserted  under  the  practice  in  the 
District  of  Columbia.  Consult  list  of 
statutes,   etc.,   cited   supra,   note   i,   p. 

331. 

2.  The  averments  enclosed  by  [  ] 
constitute  paragraph  II  of  the  affidavit 
as  it  should  be  under  the  North  Caro- 
lina practice.  See  list  of  statutes,  etc., 
cited  supra,  note  i,  p.  331. 

8.  The  affidavit  should  allege  that  the 
witness  is  material.  Wilson  v.  Wheel- 
ing, 19  W.Va.  323;  Dimmey  z/.  Wheeling, 
etc.,  R.  Co.,  27  W.  Va.  32.  See  also 
list  of  statutes  cited  supra,  note  i,  p. 

331. 

4.  This  is  paragraph  III  as  it  should 
be  framed  under  the  practice  in  the 
District  of  Columbia.  See  statutes,  etc. , 
cited  supra,  note  i,  p.  331. 

6.  This  is  paragraph  III  as  it  should 
be  framed  under  the  Louisiana  practice. 
See  list  of  statutes,  etc.,  cited  supra, 
note  I.  p.  331. 

6.  Affiant  Expects  and  Believes  he  can 
Prove,  etc. — It  was  said  in  Day  v,  Sam- 
son,  Barnes  448,   that  deponent    must 


aver  absolutely,  and  not  merely  declare 
his  belief,  that  the  witness  will  testify 
to  the  facts  stated,  but  in  the  United 
States  the  practice  is  to  state  that  de- 
ponent "expects"  to  prove,  etc.  How- 
ever, the  language  of  the  statute  in  the 
particular  states  should  be  strictly  fol- 
lowed on  this  point.  See  list  of  stat- 
utes, etc.,  cited  supra,  note  i,  p.  331. 

Kentucky. — The  code  provision  relat- 
ing to  this  averment  is  declaratory  of 
the  practice  prior  to  the  code  so  far  as 
it  requires  the  affiant  to  state  what  "  he 
believes  "  the  witness  will  prove.  See 
Owens  V.  Starr,  2  Litt.  (Ky.)  232,  and 
Smalley  v.  Anderson,  2  T.  B.  Mon. 
(Ky.)  56,  holding  that  affiant's  state- 
ment that  he  "  expected  to  prove  cer- 
tain facts"  was  not  equivalent  to  an 
expression  of  a  firm  belief,  and  was 
therefore  insufficient. 

Louisiana. — That  affiant  is  "  advised  " 
or  "hopes"  he  can  prove  the  facts 
stated  will  not  alone  suffice.  He  should 
swear  positively  that  he  expects  or  be- 
lieves he  can  do  so.  Brander  v.  Flint, 
10  La.  391. 

New  Mexico.  —  An  affidavit  which 
states  what  the  affiant  "expects"  in- 
stead of  "  believes"  witness  will  prove, 
etc.,  is  insufficient.  Kent  v.  Favor,  3  N. 
Mex.  219. 

7.  Statement  of  Expected  Testimony.  — 
At  common  law,  on  a  first  application 
for  continuance,  if  there  were  no  cir- 
cumstances creating  a  suspicion  that 
the  application  was  made  merely  for 
delay,  it  was  sufficient  to  state  that  the 
testimony  of  the  witness  was  material. 
On   subsequent  applications,  or  where 


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6272. 


the  circumstances  were  suspicious,  or 
the  witness  was  expected  to  be  absent 
for  a  long  period,  it  was  necessary 
to  show  the  materiality  of  his  testi- 
mony by  a  statement  of  the  facts  to 
which  he  was  expected  to  testify.  4 
Encycl.  of  PI.  and  Pr.  884;  2  Tidd's 
Pr.,  p.  773- 

The  common-law  practice  in  this 
particular  still  obtains  in  a  few  of  the 
states.  See  this  practice  expounded 
and  illustrated  infra,  this  note,  para- 
graphs relating  to  Kentucky  and  Tennes- 
see; note  3,  p.  358-g,  relating  to  Virginia; 
Forms  Nos.  6276,  6277,  and  notes  to 
the  latter. 

But  even  in  those  states  it  is  the  con- 
stant practice  to  insert  in  an  affidavit  a 
full  statement  of  the  facts. 

In  most  of  the  states,  however,  it  is 
expressly  required  by  statute  or  rule  of 
court  that  the  affidavit  shall  state  the 
facts  expected  to  be  proved,  and  show 
the  materiality  thereof.  See  list  of 
statutes,  etc.,  cited  supra,  note  i,  p. 
331.  In  some  jurisdictions  the  prac- 
tice is  enforced  without  any  require- 
ment of  statute  or  rule  of  court.  See 
infra,  this  note,  part  relating  to  New 
Mexico;  and  as  to  the  practice  where 
the  statute  seems  to  leave  it  to  the 
option  of  the  applicant,  see  infra,  this 
note,  part  relating  to  California  and 
Nevada 

Alabama.  — As  indicating  the  practice 
in  criminal  cases,  it  may  be  noted  that 
in  Johnson  v.  State,  102  Ala.  i,  the 
court  said  that  there  was  a  motion 
made  by  defendant  for  a  continuance 
on  account  of  absent  witnesses  "with 
separate  written  affidavits,  setting  forth 
what  they  were  severally  expected  to 
prove." 

California.  —  The  following  cases 
held  apparently  that  it  is  necessary  to 
state  the  facts  to  which  the  absent  wit- 
ness will  testify.  Carey  v.  Philadel- 
phia, etc..  Petroleum  Co.,  33  Cal.  694; 
Kern  Valley  Bank  v.  Chester,  55  Cal. 
49;  People  V.  Ah  Fat,  48  Cal.  63.  The 
latter  case  is  cited  to  the  same  point  in 
Deering's  Anno.  Code  Civ.  Proc,  §  595, 
in  a  note  where  the  editor  adds  paren- 
thetically, "although  the  section  seems 
to  give  the  court  an  option  as  to 
requiring  the  moving  party  to  show 
the  evidence  he  expects  to  obtain." 

Colorado.  —  The  facts  must  be  set 
forth  with  sufficient  certainty  to  enable 
the  court  to  determine  the  materiality 
of  the  evidence,  and  to  enable  the 
opposite  partv  to  admit  the  facts  and 
thus     avoid    continuance.      Glenn     v. 


Brush,  3  Colo.  31;  Cody  v.  Butterfield, 
I  Colo.  377;  Chase  v.  People,  2  Colo.  513. 

Florida.  —  Consult  Form  No.  6283, 
infra,  and  notes  thereto. 

Idaho.  —  In  Territory  v.  Guthrie,  2 
Idaho  403,  and  Cox  v.  Northwestern 
Stage  Co.,  r  Idaho  376,  may  be  found 
an  affidavit  which  sets  forth  the  facts. 

Illinois.  —  Consult  Forms  Nos.  6285, 
6286,  infra,  and  notes  thereto. 

Indiana.  — Consult  Forms  Nos.  6287, 
6288,  infra,  and  notes  thereto. 

Iowa.  —  Consult  Forms  Nos.  6289, 
6290,  and  notes  thereto. 

Kentucky.  —  The  affidavit  must  show 
what  facts  the  affiant  believes  witness 
will  prove,  and  not  merely  the  effect  of 
such  facts.  McClurg  v.  Ingleheart, 
(Ky.  1895)  33  S.  W.  Rep.  80.  In  Slater 
V.  Sherman,  5  Bush  (Ky.)  211,  the  de- 
fendant filed  an  affidavit  stating  in  sub- 
stance that  he  could  prove,  by  a  witness 
who  was  then  absent,  that  one  Mary 
Oats,  a  witness  who  would  be  relied 
on  by  the  plaintiff,  was  not  present 
when  the  alleged  trespasses  were  sup- 
posed to  have  been  committed,  and  the 
court  said:  "As  the  affidavit  did  not 
disclose  what  facts  it  was  expected 
the  plaintiff  would  attempt  to  prove  by 
Mary  Oats,  it  did  not  appear  whether 
it  was  material  to  the  defense  to  prove 
her  absence  or  not,  and  it  seems  to  us 
that  the  court  did  not  abuse  its  discre- 
tion in  overruling  the  motion." 

Prior  to  the  code,  it  seems  to  have 
been  the  universal  practice,  where  the 
witness  lived  within  the  state  not  to  re- 
quire that  the  facts  to  be  proved  by  him 
should  be  set  forth  in  the  affidavit  but 
where  the  witness  was  a  nonresident,  it 
was  necessary  to  set  forth  what  the 
party  expected  to  prove  by  him. 
Simms  v.  Alcorn,  i  Bibb  (Ky.)  348; 
Letcher  v.  Starling,  i  Bibb  (Ky.)  433; 
Smith  V.  Snoddy,  2  A.  K.  Marsh,  (Ky.) 
382.  Likewise,  where  the  application 
for  continuance  was  repeated  by  the 
same  party.  Letcher  v.  Sterling,  i  Bibb 
(Ky.)432. 

Louisiana.  —  It  is  the  usual  practice 
to  state  the  facts  to  which  it  is  believed 
the  witnesses  will  testify  in  the  first  in- 
stance. Allard  v.  Lobau,  3  Martin  N.  S. 
(La.)  293;  State  v.  Bolds,  37  La.  Ann.  312; 
State  V.  Duffy,  39  La.  Ann.  419;  State 
V.  Moultrie,  33  La.  Ann.  1146;  Burton 
V.  Maltby,  18  La.  531;  Lex  v.  Southern 
Express  Co.,  23  La.  Ann,  59;  Cobb  v. 
Franks,  6  La.  Ann.  769.  And  the  court 
may  require  the  party  to  state  the  facts. 
Raby  v.  Brown,  14  La.  247;  State  v. 
Celestin,  48  La.  Ann.  272. 


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6272. 


AD  JO  URNMENTS. 


6272. 


Maryland. — See  Dean  z/.  Turner,  31 
Md.  58,  and  Form  No.  6274,  infra,  and 
notes  thereto. 

Michigan. — See  People  v.  Burwell, 
106  Mich.  27;  People  v.  Anderson,  53 
Mich.  60,  and  Form  No.  6275,  infra, 
and  annotations  thereto. 

Minnesota.  — A  mere  statement  that 
the  witness  is  material  is  insufficient. 
Mackubin  v.  Clarkson,  5  Minn.  247. 

Missouri.  — Consult  Form  No.  6291, 
infra,  and  notes  thereto. 

Nebraska.  —  Consult  Form  No.  6293, 
infra,  and  notes  thereto. 

Nevada.  —  It  is  customary  to  state 
the  facts  at  the  outset.  State  v.  O' Fla- 
herty, 7  Nev.  153;  State  v.  Chapman, 
6  Nev.  320. 

New  Mexico. — Dold  v.  Dold,  i  N. 
Me.x.  397;  Kent  v.  Favor,  3  N.  Mex. 
219;  Deemer  v.  Falkenburg,  4  N. 
Mex.  57;  Faulkner  v.  Territory,  6  N. 
Mex.    464. 

New  York.  —  Consult  Form  No.  6277, 
infra,  and  notes  thereto. 

Pennsylvania.  —  Consult  Form  No. 
6277,  infra,  and  notes  thereto. 

Tennessee. — If  the  application  for 
continuance  is  made  at  the  first  term  at 
which  the  case  stands  for  trial,  it  is  not 
necessary  to  disclose  the  facts  to  which 
it  is  expected  the  absent  witness  will 
testify.  Crane  v.  State,  94  Tenn.  86; 
Jones  w.  State,  10  Lea  (Tenn.)  585;  State 
V.  Morris,  i  Overt.  (Tenn.)  220;  Nelson 
V.  State,  2  Swan  (Tenn.)  482.  But  if  the 
application  is  made  at  a  second  or  sub- 
sequent term,  the  facts  to  which  the 
witness  is  expected  to  testify  should  be 
stated.  Nelson  v.  State,  2  Swan 
(Tenn.)  482;  Womack  v.  State,  6 
Lea  (Tenn.)  153;  Rhea  v.  State,  10 
Yerg.  (Tenn.)  258. 

In  a  criminal  case,  the  defendant's 
affidavit  on  a  first  application,  which  did 
not  disclose  the  facts  expected  to  be 
proved  by  the  witness,  was  held  de- 
fective, because  it  was  nowhere  stated, 
either  directly  or  indirectly,  that  the 
defendant  was  innocent  of  the  crime 
charged  against  him.  Crane  v.  State, 
94  Tenn.  86. 

Texas.  —  Consult  Forms  Nos.  6295  to 
6298,  infra,  and  notes  thereto. 

Utah.  —  McGrath  v.  Tallent,  7  Utah 
256. 

West  Virginia.  —  Under  the  act  of 
1882,  c.  120,  §  6,  it  was  held  necessary, 
if  required  by  any  party  opposing  the 
motion  for  continuance,  to  set  forth  in 
the  affidavit  the  testimony  the  witness 
was  expected  to  give.  Riddle  v.  Mc- 
Ginnis,  22  W.  Va.  26S. 


IVisconsin.  —  Consnlx.  Form  No.  6282, 
infra,  and  notes  thereto. 

Facts  and  not  legal  eoncltisions  must 
be  stated.  See  list  of  statutes  cited 
supra,  note  i,  p.  331.  Also  infra,  note 
I.  P-  367,  note  3,  p.  374,  note  i,  p.  387; 
Chase  v.  People,  2  Colo.  513;  Glenn  v. 
Brush,  3  Colo.  31;  State  v.  McCoy,  29 
La.  Ann.  595;  Wilson  v.  Purl,  133  Mo. 
367;  State  V.  Good,  132  Mo.  114;  State 
V.  Hilsabeck,  132  Mo.  353;  State  v.  Pin- 
nell,  93  Mo.  4S0. 

In  Payne  v.  Kansas  City  First  Nat. 
Bank,  16  Kan.  153,  the  defendant's 
affidavit  for  a  continuance  stated  the 
evidence  of  the  absent  witness  as  fol- 
lows: "  Said  evidence  is  of  the  fol- 
lowing nature,  to  wit,  proving  and 
tending  to  prove  that  defendant,  Payne, 
was  at  the  time  of  the  taking  of  the 
note  herein  sued  on  by  plaintiff  only 
a  surety,  or  indorser,  on  the  same,  and 
was  so  known  to  be  at  said  time  by  said 
plaintiff,  the  said  plaintiff,  so  as  afore- 
said knowing  said  party,  released  by 
its  actions  said  defendant  Payne  from 
all  liability  thereunder;  that  plaintiff 
has  accepted  other  security,  and  taken 
other  notes  in  lieu  of  the  one  sued  on." 
In  pronouncingthis  affidavit  insufficient, 
the  court  said:  "  First,  the  facts  are  not 
stated  in  sufficient  detail.  They  should 
be  stated  with  the  same  detail  that  they 
would  be  stated  by  the  witness  if  he 
were  on  the  stand  testifying,  or  if  his 
deposition  was  being  taken.  They  are 
to  be  stated  so  that  they  may  be  read 
as  the  deposition  of  the  absent  witness, 
if  the  court  should  consider  the  affidavit 
sufficient,  and  the  opposite  side  should 
choose  to  admit  them.  Second,  these 
facts  are  not  stated  to  be  the  facts  which 
the  witness  says  would  prove  by  their 
direct  testimony.  They  are  not  stated 
to  be  the  facts  which  it  is  believed  the 
witnesses  would  testify  to  if  they  were 
present.  *  *  *  They  are  often  known 
as  conclusions  of  facts  or  con- 
clusions of  law.  *  *  *  The  statute 
requires  that  the  party  asking  a  con- 
tinuance shall  state  in  his  affidavit  the 
'  facts  he  believes  the  witness  will 
prove.'  He  is  not  authorized  to  state  the 
facts  which  he  believes  will  be  proved 
by  the  facts  which  he  believes  the  wic- 
ness  will  prove.  He  must  state  the 
original  primary  facts  as  he  would 
believe  they  would  come  from  the  wit- 
ness, and  not  the  conclusions  or  infer- 
ences which  might  be  drawn  from  these 
facts.  And  he  must  state  the  facts  in 
detail,  so  that  they  may  be  used  as  a 
deposition,   and    not    in   that  general 


5  E.  of  F.  P.  — 22. 


337 


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6272. 


and  comprehensive  manner  generally 
adopted  for  the  statement  of  facts  in 
pleadings,  or  in  findings  of  courts,  or 
verdicts  of  juries."  These  views  were 
reiterated  in  Brown  v.  Johnson,  14  Kan. 
377;  Board  of  Regents  v.  Linscott,  30 
Kan.  240;  Clouston  v.  Gray,  48  Kan. 
31.  In  the  latter  case,  the  defendant 
stated  that  he  expected  to  prove  by  one 
James  Gray  "  that  the  property  in  con- 
troversy herein,  and  which  is  sought  to 
be  recovered  by  this  plaintiff,  was  the 
property  of  the  said  absent  witness, 
James  Gray,  and  that  this  plaintiff 
never  did  have  any  right,  title  or 
interest  in  the  same."  The  defendant's 
claim  was  that  the  absent  witness  had 
fraudulently  conveyed  the  property  to 
the  plaintiff,  and  the  foregoing  state- 
ment was  held  insufficient  as  an  aver- 
ment of  ownership.  On  this  point  the 
court  said:  "  He  could  have  set  forth 
in  the  affidavit  that  James  Gray  would 
have  testified  if  present  at  the  trial;  that 
he  was  largely  indebted  (giving  details): 
That  it  pretended  to  sell  the  property 
to  S.  F.  Gray  for  the  purpose  of 
defrauding  his  creditors:  That  S.  F. 
Gray  had  knowledge  o'f  such  intention: 
That  S.  F.  Gray  did  not  pay  him  any- 
thing for  the  property:  That  James 
Gray  continued  in  the  possession 
of  the  property:  That  S.  F.  Gray 
never  had  possession  thereof:  That 
S.  F.  Gray  never  claimed  to  be  the 
owner,  but  on  the  contrary  admitted 
that  he  was  not  the  owner,  and  that 
James  Gray  was,  and  that  both  James 
Gray  and  S.  F.  Gray  had  full  knowledge 
of  all  these  matters  and  things,  and 
the  affiant  should  have  set  forth  in  his 
affidavit  all  these  matters  and  things 
in  greater  detail  than  we  have  stated 
them."  Johnston,  J.,  dissented,  hold- 
ing that  the  affidavit,  though  not  per- 
fect, was  substantially  sufficient. 

Kateriality  of  Testimony.  —  The  affi- 
davit must  show  that  the  testimony  is 
material.  See  list  of  statutes,  etc., 
cited  supra,  note  i,  p.  331,  also  supra, 
note  2,  p.  327,  relating  to  absent  party 
needed  as  a  witness. 

California.  —  Kern  Valley  Bank  v, 
Chester,  55  Cal.  49;  Storch  v.  McCain, 
85  Cal.  306;  Cohn  v.  Brownstone,  93 
Cal.  362;  People  v.  Mellon,  40  Cal. 
648;  People  V.  Williams,  43  Cal.  344. 

Colorado.  —  It  must  appear  that  the 
facts  to  which  it  is  expected  the  witness 
will  testify  not  only  may  be  but  actually 
will  be  relevant  and  material.  Dawson 
V.  Coston,  18  Colo.  493;  Cody  z/.  Butter- 
field,  I  Colo.  377.     This  can  usually  be 


determined  by  the  issues  made  by  the 
pleadings,  but  when  there  are  no  plead- 
ings it  must  appear  from  the  affidavit 
that  such  issues  will  arise  upon  the 
trial  and  will  render  the  testimony 
material.  Hewes  v.  Andrews,  12  Colo. 
161,  where  the  application  was  made 
for  the  continuance  of  a  case  pending 
in  the  county  court  on  appeal  from  a 
justice  of  the  peace. 

Kansas.  —  Swenson  v.  Aultman,  14 
Kan.  273;  Perley  v.  Taylor,  21  Kan. 
712. 

Kentucky. — McClurg  v.  Ingleheart, 
33  S..  W.  Rep.  80;  Owens  v.  Starr,  2 
Litt.  (Ky.)  231;  Grubbs  v.  Pickett,  i  A. 
K.  Marsh.  (Ky.)  255;  Chambers  v. 
Handley,  3  J.  J.  Marsh.  (Ky.)  98. 

Louisiana.  —  State  v.  Hollier,  49  La. 
Ann.  371;  Fusz  v.  Trager,  39  La. 
Ann.  292.  But  the  affiant  need  not 
swear  to  the  competency  of  the  testi- 
mony. State  V.  Bolds,  37  La.  Ann. 
312.  Affiant's  statements  in  his  affidavit 
that  he  expected  to  prove  "all  the 
matters  alleged  in  his  petition"  was 
held  a  sufficient  declaration  of  materi- 
ality, where  the  facts  set  forth  in  the 
petition  were  material.  Winter  v. 
Donaldsonville,    6   Martin    N.  S.  (La.) 

534. 

Mississippi.  —  See  McDaniel  z*.  State, 
8  Smed.  &  M.  (Miss.)  401.  The  facts 
disclosed  must  appear  to  be  pertinent 
and  material.  Sellars  v.  Kelly,  45 
Miss.  323. 

Nebraska.  —  Burgo  v.  State,  26  Neb. 
639;  Clark  z/.  Millen,  16  Neb.  481;  Polin 
V.  State,  14  Neb.  549.  Consult  also 
Form  No.  6293,  infra,  and  note. 

West  Virginia.  — Wilson  v.  Wheeling, 
19  W.  Va.  323;  Dimmey  v.  Wheeling, 
etc.,  R.  Co.,  27  W.  Va.  32. 

Continuance  is  properly  refused  where 
the  facts  as  set  forth  appear  to  be  im- 
material, irrelevant  or  otherwise  inad- 
missible. Hill  V.  Austin,  19  Ark.  230; 
Ware  v.  Kelly,  22  Ark.  441;  Hamilton  v. 
State,  62  Ark.  543;  Robson  v.  State,  83 
Ga.  169;  Cox  V.  Northwestern  Stage  Co., 
I  Idaho  376;  Moore  v.  Hawkins,  6 
Dana  (Ky.)  289;  State  v.  Dale,  89  Mo. 
579;  Waldo  V.  Beckwith,  i  N.  Mex.  184; 
Walte  V.  Walsh,  10  Heisk   (Tenn.)3i4. 

If  the  court  doubts  the  materiality  of 
the  expected  evidence,  or  the  good  faith 
of  the  applicant,  it  may  properly  re- 
quire him  to  state  on  oath  the  facts  he 
expects  to  prove  by  the  witness. 
Wormley  v.  Com.,  10  Gratt.  (Va.)  658; 
Harman  v.  Howe,  27  Gratt.  (Va.)  676; 
Harris  v.  Harris,  2  Leigh  (Va.)  584. 
And  if  it  appears  by  the  affidavit  or  by 


838 


Volume  5. 


6272. 


AD  JO  URNMENTS. 


6272. 


\0r  IV,  That  affiant  believes  (or  /  believe)  th^  testimony  of  the 
said  George  Jones  will  prove  that  \State  facts)^ 

[Or  IV.  That  affiant  believes  (or  /  believe)  said  witness  will  testify 
to  and  prove  the  following  facts:  (Jlere  state  facts. )'\^ 

[Or  IV.  That  affiant  believes  (or  /  believe)  the  said  George  Jones 
will  prove  that  {Jlere  state  facts)?^ 

[Or  IV.  The  evidence  I  expect  (or  affiant  expects)  to  obtain  from 
the  said  George  Jones  is  as  follows :  (^State  the  evidence.)\^ 

V.  That  affiant  has  (or  /  have)  used  due  diligence  to  obtain  (or 
procure  or  secure)  the  testimony  of  the  said  George  Jones  in  that 
instate  diligence  used).  ^ 


oral  examination  that  the  expected 
testimony  would  be  immaterial  or  in- 
admissible, a  continuance  is  properly 
refused.  Nash  v.  Upper  Appomattox 
Co.,  5  Gratt.  (Va.)  332;  Harris  v.  Harris, 
2  Leigh  (Va.)  584;  Moore  v.  Com.,  9 
Leigh  (Va.)  639;  Wormeley  v.  Com.,  10 
Gratt.  (Va.)  684.  But  it  is  error  to  over- 
rule the  motion  supported  by  a  sufficient 
affidavit  upon  the  incorrect  assumption 
that  the  evidence  was  inadmissible. 
Cannon  v.  State,  60  Ark.  564. 

Safficiency  of  Averment  in  Farticnlar 
Cases.  —  To  prove  threats,  see  infra, 
note  I,  p.  367-8,  note  3,  p.  374. 

To  prove  deponent  is  not  guilty,  see 
infra.  Form  No.  6284  and  note  i,  p.  367. 

To  prove  eviction  of  deponent  from 
leased  premises,  see  infra.  Form  No. 
6285. 

To  prove  part  payment  of  claim,  see 
infra,  precedent  in  note  4,  p.  363. 

To  prove  defendant's  intoxication, 
etc.,  in  murder  case,  see  infra.  Form 
No.  6286. 

To  prove  an  alibi,  see  infra,  note  3, 
p.  374;  Form  No.  6291;  note  2,  p.  384. 

To  prove  insanity,  see  infra.  Form 
No.  6288;  note  i,  p.  387,  note  2,  p.  392. 

To  prove  killing  in  self-defense,  see 
infra,  precedent  in  note  2,  p.  384-5 ;  Form 
No.  6292. 

To  prove  plaintiff's  contributory  neg- 
ligence and  defendant's  due  care,  see 
infra.  Form  No.  6293. 

Oronnds  for  expecting  that  the  witness 
will  80  testify  are  sometimes  required  to 
be  stated  by  statute  or  rule  of  court. 
For  sufficiency  of  grounds  stated,  see 
infra.  Form   No.  6273. 

In  Maine,  Massachusetts  and  New 
Hampshire,  to  paragraph  IV  should  be 
added  this  additional  averment,  "  that 
affiant's  grounds  of  expectation  that  the 
said  witness  will  prove  the  foregoing 
facts  are  as  follows"  {statins; grounds  of 
expectation),  or  "that  affiant's  grounds 
for  expecting  the   said  George fones  to 


testify  to  the  foregoing  facts  are  as  fol- 
lows "  {stating  the  grounds  of  expecta- 
tion). See  list  of  statutes,  etc.,  cited 
supra,  note  i,  p.  331. 

1.  This  is  paragraph  IV  as  it  should 
be  MViA^x  \.\i^  Arkansas  and  Ne7v  Mexico 
practice.  See  list  of  statutes,  etc.,  cited 
supra,  note  i,  p.  331. 

2.  This  is  paragraph  IV  as  it  should 
be  under  the  Kansas  and  Oklahoma 
practice.  See  list  of  statutes,  etc.,  cited 
supra,  note  i,  p.  331. 

3.  This  is  paragraph  IV  as  it  should 
be  under  the  Kentucky,  Missouri  and 
Wyoming  practice.  See  list  of  statutes, 
etc.,  cited  supra,  note  I,  p.  331,  and  for 
the  practice  in  Missouri  in  criminal 
cases  see  also  Form  No.  6291. 

4.  This  is  paragraph  IV  as  it  should 
be  under  the  Nevada,  Oregon  and  Utah 
practice.  See  list  of  statutes,  etc.,  cited 
supra,  note  i,  p.  331. 

6.  Statement  of  Diligence.  —  The  com- 
mon-law practice  requires  that  ordinary 
diligence  to  procure  the  testimony  of 
the  absent  witness  must  be  shown  in 
the  affidavit  in  all  cases.  2  Tidd's  Pr. 
772;  and  see  infra,  note  2,  p.  354. 

In  most  of  the  states  this  averment  is 
required  by  statute  or  rule  of  court, 
and  the  statement  ordinarily  shows 
the  particular  efforts  that  have  been 
made.  See  4  Encycl.  of  PI.  and  Pr. 
881;  also  list  of  statutes  cited  supra, 
note  I,  p.  331. 

Arkansas.  —  An  averment  of  dili- 
gence in  general  terms  is  insufficient. 
The  facts  constituting  diligence  should 
be  stated  so  that  the  court  may  decide 
upon  their  sufficiency.  Winter  v. 
Bandel,  30  Ark.  362.  For  other  cases 
where  the  diligence  was  held  sufficient 
see  Jackson  v.  State,  54  Ark.  243; 
Price  V.  State,  57  Ark.  165;  Burriss  v. 
Wise,  2  Ark.  33;  Golden  v.  State,  19 
Ark.  590. 

California.  —  Must  state  what  steps 
have  been  taken  to  procure  the  attend- 


889 


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CONTINUANCES  AND 


6272. 


ance  or  deposition  of  the  witness. 
Cohn  V.  Brownstone,  93  Cal.  362; 
People  V.  Thompson,  4  Cal.  241,  hold- 
ing that  an  allegation  that  the  party 
had  used  all  the  diligence  in  his  power 
without  stating  the  particulars,  is  in- 
sufficient. The  party  must  have  re- 
sorted to  the  proper  legal  means  for 
that  purpose,  or  must  show  to  the  sat- 
isfaction of  the  court  that  a  resort  to 
such  means  would  have  been  unavail- 
ing. Kuhland  v.  Sedgwick,  17  Cal. 
123,  see  also  People  v.  Baker,  r  Cal. 
403,  holding  that  a  mere  promise  by 
the  witness  to  attend  does  not  dispense 
with  the  use  of  legal  means  to  procure 
attendance.  People  v.  Lampson ,  70  Cal. 
204.  But  circumstances  may  relieve  a 
party  from  the  necessity  of  taking  the 
deposition  of  a  witness.  People  v. 
Dodge,  28  Cal.  445,  where  the  witness 
was  sick,  but  the  party  had  supposed 
that  he  would  recover  in  time  to  attend 
to  the  trial. 

If  the  witness  has  been  subpoenaed, 
the  affidavit  should  state  at  what  time 
the  subpoena  was  taken  out.  People 
V.  Baker,  i  Cal.  403.  And  show  that 
service  was  such  that  witness  was 
bound  to  obey.  People  v.  Jocelyn,  29 
Cal.  562.  And  in  People  v.  Weaver, 
47  Cal.  106,  it  was  held  that  it  must  be 
shown  that  the  summoned  witness 
cannot  be  readily  reached  by  an  at- 
tachment. 

For  cases  where  it  was  held  that  in- 
sufficient diligence  was  shown  see 
Lightner  v.  Menzel,  35  Cal.  452;  Les- 
zinsky  v.  White,  45  Cal.  278;  People  v. 
Ashnauer,  47  Cal.  98,  where  the  affi- 
davit, omitting  the  formal  parts,  is 
given  in  full. 

For  cases  where  the  diligence  shown 
was  held  sufficient  see  People  v.  Diaz, 
6  Cal.  248;  People  v.  Dodge,  28  Cal. 
445;  People  V.  McCrory,  41  Cal.  458. 

Colorado.  —  A  statement  that  a  sub- 
poena was  issued  to  another  county 
and  the  witness  there  served  is  insuffi- 
cient, unless  it  is  shown  that  the  sub- 
poena was  issued  in  the  manner  provided 
for  the  issuance  of  subpoenas  to  foreign 
counties.  Dawson  v.  Coston,  18  Colo. 
493.  For  cases  where  sufficient  dili- 
gence was  not  shown  see  Cody  v.  But- 
terfield,  1  Colo.  377;  Boyle  v.  People,  4 
Colo.  176,  where  a  subpoena  was  not 
issued  until  the  day  the  application 
was  made.  Litchfield  v.  Daniels,  i 
Colo.  268.  In  Hirsch  v.  Ferris,  i  Colo. 
402,  the  diligence  disclosed  was  held 
sufficient,  and  the  refusal  of  a  con- 
tinuance to  be  reversible  error.     Sick- 


ness of  a  witness  disabling  him  from 
attending  court  is  most  properly  shown 
by  the  affidavit  of  a  physician  stating 
the  facts  upon  which  his  opinion  is 
based.  Danielson  v.  Gude,  11  Colo.  87, 
holding  that  a  party's  affidavit  that  a 
physician  not  named  told  him  that  the 
witness  was  sick,  etc.,  was  insufficient. 

Florida.  —  Consult  Form  No.  6283, 
infra,  and  notes  thereto. 

Georgia.  —  Consult  Form  No.  6284, 
infra,  and  notes  thereto. 

Illinois.  —  Consult  Forms  Nos.  6285, 
6286,  infra,  and  notes  thereto. 

Indiana.  — Consult  Forms  Nos.  6287, 
6288,  infra,  and  notes  thereto. 

Iowa.  —  Consult  Forms  Nos.  6289, 
6290,  infra,  and  notes  thereto. 

Kansas.  —  What  efforts  have  been 
used  must  be  set  forth  in  the  affidavit. 
Kilmer  z'.  St.  Louis,  etc.,  R.Co.,  37  Kan. 
84.  In  the  following  cases  the  affidavit 
was  held  insufficient  for  want  of  proper 
showing  of  diligence.  Educational 
Assoc.  V.  Hitchcock,  4  Kan.  36;  Camp- 
bells-. Blanke,  13  Kan.  62;  Swenson  v. 
Aultman,  14  Kan.  273;  Payne  v.  Kan- 
sas City  First  Nat.  Bank,  16  Kan.  147; 
Wyandotte,  etc..  Gas  Co.  v.  Schliefer, 
22  Kan.  468;  Wilkins  v.  Moore,  20  Kan. 
538;  see  also  Tucker  v.  Garner,  25  Kan. 
454;  State  V.  Rhea,  25  Kan.  576;  Clous- 
ton  V.  Gray,  48  Kan.  31;  State  v.  Barker, 
43  Kan.  262;  State  v.  McClain,  49  Kan. 
730;  State  V.  Lewis,  56  Kan.  374;  Bliss 
V.  Carlson,  17  Kan.  325;  Struthers  v. 
Fuller,  45  Kan.  735.  In  State  v.  Bur- 
well,  34  Kan.  312,  the  affidavit  showed 
sufficient  diligence,  and  it  was  held  re- 
versible error  to  refuse  a  continuance. 

Kentucky.  —  Must  state  what  steps 
have  been  taken.  Benge  v.  Com.,  92 
Ky.  I.  And  it  ought  to  be  shown  that 
the  witness  has  been  summoned,  or 
some  legal  excuse  alleged  for  failure  to 
summon  him.  Chambers  v.  Handley, 
3  J.  J.  Marsh.  (Ky.)  98;  Helfrich  Saw. 
etc..  Mill  Co.  V.  Everly,  (Ky.  1895)  32 
S.  W.  Rep.  750;  McClurgi/.  Ingleheart, 
(Ky.  1895)  33  S.  W.  Rep.  80;  Simms  v. 
Alcorn,  i  Bibb  (Ky.)  348;  Carr  v.  Mar- 
shall, i  Bibb  (Ky.)363.  "  In  consider- 
ing the  question  of  diligence  on  a 
motion  for  continuance  by  the  accused 
on  account  of  the  absencq  of  a  witness, 
the  fact  that  the  Commonwealth  had 
such  witness  recognized  should  have 
the  same  effect  as  if  he  had  been  recog- 
nized at  the  instance  of  the  accused." 
Saylor  v.  Com.,  97  Ky.  184,  holding  that 
the  continuance  should  have  been 
granted.  Where  the  affidavit  stated 
that  subpcenas  were  issued  for  the  ab- 


340 


Volume  5. 


6272. 


AD  JO  URNMENTS. 


6272. 


sent  witness,  but  did  not  state  that  they 
had  been  delivered  to  any  oflBcer  or 
other  person  authorized  to  serve  them, 
it  was  held  insuflScient.  Mackey  v. 
Com.,  80  Ky.  345;  Unsel  v.  Com.,  87 
Ky.  368.  Contra  where  the  affidavit  did 
not  state  that  subpoenas  had  been  is- 
sued, but  subpoenas  were  on  file  or 
exhibited  to  the  court  with  the  officer's 
return  of  actual  service  duly  endorsed 
thereon.     Vogt  v.  Com.,  92  Ky.  68. 

In  Thurman  v.  Virgin  18  B.  Mon. 
(Ky.)  791,  it  was  held  that  a  continu- 
ance ought  not  to  be  allowed  on  the 
ground  of  the  absence  of  witnesses  re- 
siding in  another  county,  unless  the 
affidavit  showed  a  tender  or  payment 
of  witness  fees,  to  which  the  witness 
was  thus  entitled  by  statute,  or  a 
waiver  of  the  same.  The  statute  was 
subsequently  amended,  and  it  appears 
from  Bullitt's  Civ.  Code  Ky.  (1895),  § 
315,  note  b,  that  the  averment  of  tender 
or  payment  of  fees  to  such  witness 
would  not  now  be  necessary  unless  the 
officer  serving  the  subpoena  returns  that 
the  witness  demanded  his  fees. 

Louisiana.  —  For  a  construction  of 
the  section  of  the  statute  relating  to 
this  averment  see  Klathenhofif  v.  Ardry, 
14  La.  301.  The  affidavit  should  state 
specifically  what  efforts  have  been 
taken  to  procure  the  testimony  of  the 
absent  witness.  State  v.  Clark,  37  La. 
Ann.  128;  State  v.  Ryan,  30  La.  Ann. 
1176;  McCarty  v.  McCarty,  19  La.  296. 
A  mere  declaration  in  the  affidavit  that 
diligence  has  been  used  is  not  con- 
clusive. State  V.  Clark,  37  La.  Ann. 
128. 

In  Prviyn  v.  Gibbons,  24  La.  Ann. 
232,  the  affidavit  was  held  insufficient 
because  it  did  not  show  that  the  appli- 
cant was  not  aware  of  the  witness's 
departure,  and  could  not  have  obtained 
his  testimony.  See  also  Bank  of  Or- 
leans V.  Whittemore,  15  La.  276.  For 
other  cases  where  the  showing  of  dili- 
gence was  held  insufficient  see  State  v. 
Morgan,  39  La.  Ann.  214;  Ryan  v. 
Sewell,  18  La.  Ann.  221;  Edwards 
V.  Farrar,  2  La.  Ann.  307;  State  v. 
Bradley,  6  La.  Ann,  554;  Golding  v. 
Steamer  C.  Castro,  20  La.  Ann.  458; 
State  V.  Nelson,  28  La.  Ann.  46;  State 
V.  Hornsby,  33  La.  Ann.  mo;  State  v. 
Primeaux,  39  La.  Ann.  673;  State  v. 
Coudier,  36  La.  Ann.  291;  State  v.  Com- 
stock,  36  La.  Ann.  308;  State  v.  Cheval- 
lier,  36  La.  Ann.  81;  State  v.  Foster, 
36  La.  Ann.  877;  State  v.  Williams, 
36  La.  Ann.  854;  State  v.  Venables,  40 
La.  Ann.  215;  Mills  v.  Fellows,  30  La. 


Ann.  824;  Beatty  v.  Tete,  9  La.  Ann. 
129;  State  V.  Horton,  33  La.  Ann.  289; 
Cobb  V.  Franks,  6  La.  Ann.  769;  Lex  v. 
Southern  Express  Co.,  23  La.  Ann.  59; 
State  V.  George,  37  La.  Ann.  786;  State 
V.  Moultrie,  33  La.  Ann.  1146;  State  v. 
Bassenger,  39  La.  Ann.  918. 

For  cases  where  the  diligence  dis- 
closed was  held  sufficient,  and  the  re- 
fusal of  a  continuance  ground  for  new 
trial,  see  State  v.  Davis,  37  La.  Ann. 
441;  State  V.  Egan,  37  La.  Ann.  368; 
State  V.  Briggs,  34  La.  Ann.  69;  State 
V.  Thomas,  40  La.  Ann.  151;  Bell  v. 
Williams,  3  La.  447;  State  v.  Boitreaux, 
31  La.  Ann.  188;  Klathenhoff  v.  Ardry, 
14  La.  301. 

Minnesota.  —  Facts  stating  diligence 
should  be  set  forth.  Washington 
County  V.  McCoy,  i  Minn.  100,  being  a 
case  before  a  justice  of  the  peace,  hold- 
ing that  it  is  not  enough  to  swear  that 
due  diligence  has  been  used.  If  a  sub- 
poena has  been  served,  and  the  party 
applies  for  a  continuance  for  the  term, 
it  ought  to  appear  that  the  witness  is 
not  within  reach  of  a  process  of  attach- 
ment. West  V,  Henessey,  63  Minn. 
378. 

For  cases  where  diligence  was  held 
insufficient,  see  Mackubin  v.  Clarkson, 
5  Minn.  247;  Holmes  v.  Corbin,  50 
Minn.  209.  The  showing  was  held 
sufficient  in  Wright  v.  Levy,  22  Minn. 
466. 

Mississippi.  —  Should  state  what  steps 
have  been  taken  to  procure  the  testi- 
mony, such  as  the  issuance  and  service 
of  a  subpoena,  or  a  sufficient  excuse  for 
the  omission.  See  Lundy  v.  State,  44 
Miss.  673;  Noe  v.  State,  4  How.  (Miss.) 
330. 

Missouri.  —  Consult  Form  No.  6291, 
infra,  and  notes  thereto. 

Nebraska.  —  Consult  Form  No.  6293, 
infra,  and  notes  thereto. 

Nevada.  —  If  a  subpoena  has  been 
issued,  but  not  served,  the  affidavit 
should  aver  positively  that  the  officer 
was  informed  of  the  whereabouts  of 
the  witness.  State  v.  O'Flaherty,  7 
Nev.  153;  State  v.  Gray,  19  Nev.  212. 
For  a  sufficient  showing  of  diligence 
see  Beatty  v.  Sylvester,  3  Nev.  228; 
Choate  v.   Bullion    Min.  Co.,    i    Nev. 

73- 

New  Mexico.  —  Diligence  must  be 
affirmatively  established.  Anderson  v. 
Territory,  4  N.  Mex.  108,  where  the 
affidavit  held  insufficient  is  quoted  so 
far  as  it  relates  to  diligence.  For  other 
cases  of  insufficient  diligence  see 
Waldo  V.   Beckwith,    i    N.   Mex.   184; 


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6272. 


\0r  V.  That  I  have  used  proper  and  reasonable  endeavors  to  pro- 
cure the  testimony  of  the  said  George  Jones  in  that  (Here  state  the 
endeavors  made^.y- 

VI.  That  affiant  believes  (or  I  believe)  the  matters  {or  facts  or  evi- 
dence) above  set  forth  {as  facts),  which  he  expects  (or  /  expect)  to 
prove  by  (or  procure  from)  the  said  George  Jones,  are  (or  is)  true.^ 


Territory  v.  McFarlane,  7  N.  Mex.  421; 
Faulkner  v.  Territory,  6  N.  Mex.  464, 

AVw  York.  —  Consult  Form  No.  6277, 
infra,  and  notes  thereto. 

Pennsylvania.  —  Consult  Form  No. 
6277,  infra. 

Tennessee.  —  Even  on  the  first  appli- 
cation the  applicant  must  show  that  he 
has  used  due  diligence  to  obtain  the 
absent  testimony.  Womack  v.  State, 
6  Lea  (Tenn.)  153;  State  v.  Morris,  i 
Overt.  (Tenn.)  220,  quoted  in  Jones  v. 
State,  ID  Lea  (Tenn.)  589.  See  also 
Nashville,  etc.,  R.  Co.  v.  Johnson,  15 
Lea  (Tenn.)  677. 

Texas.  —  Consult  Forms  Nos.  6295 
to  629S,  infra,  and  notes  thereto. 

Utah.  —  See  McGrath  v.  Tallent,  7 
Utah  256;  People  v.  Wiggins,  i  Utah 
324.  If  a  subpoena  was  issued  and  re- 
turned not  found,  this  is  not  sufficient, 
unless  the  affidavit  shows  when  the 
subpcena  was  issued.  People  v.  Garns, 
2  Utah  260. 

Virginia.  —  Consult  precedent  in 
note  3,  p.  358-9,  and  cases  cited. 

Washington.  — An  affidavit  which  did 
not  show  any  effort  to  locate  a  witness 
whose  whereabouts  were  unknown 
was  held  insufficient.  State  v.  Crae- 
mer,  12  Wash.  217;  State  v.  Hutchin- 
son, 14  Wash.  580.  See  also,  for 
insufficient  showing  of  diligence,  State 
V.  Wilson,  9  Wash.  218;  Juch  v.  Hanna, 
II  Wash.  676. 

West  Virginia.  —  What  steps  have 
been  taken  to  procure  the  testimony 
should  be  stated.  Buster  v.  Holland, 
27  W.  Va.  511.  For  cases  where  dili- 
gence was  held  insufficient  see  Dimmey 
V.  Wheeling,  etc.,  R.  Co.,  27  W.  Va.  32; 
Tompkins  v.  Burgess,  2  W.  Va.  187; 
Davis  V.  Walker,  7  W.  Va.  447;  Wilson 
V.  Wheeling,  19  W.  Va.  323. 

Wisconsin.  —  Consult  Form  No.  6282, 
infra,  and  notes  thereto. 

Wyoming.  —  Where  it  did  not  appear 
from  the  record  that  any  subpcena  had 
been  issued  or  asked  for,  the  refusal  of  a 
continuance  was  sustained.  Kearney 
Stone  Works  z/.  McPherson,  (Wyoming, 
1895)  38  Pac,  Rep.  920.  Likewise, 
where  it  appeared  that  subpoenas  were 
issued,  but  did  not  clearly  appear  when 


issued  or  served.  McKinney  v.  State, 
3  Wyoming  721. 

As  to  the  sufficiency  of  the  averment  of 
diligence,  etc.,  see  generally  supra,  this 
note,  including  the  cross-references, 
and  infra.  Form  No.  6292. 

As  to  the  sufficiency  of  averments) 
concerning  issuance  and  service  of  a 
subpoena  see  supra,  this  note,  including 
cross-references;  infra,  Virginia  prece- 
dent in  note  3,  p.  358-9,  note  2,  p.  361, 
note  5,  p.  362,  note  i,  p.  376;  Form  No. 
6289;  note  I,  p.  380;  Form  No.  6291  and 
precedents  in  the  notes  thereto;  prece- 
dents in  note  4,  p.  398;  Form  No.  6295; 
note  I,  p.  401,  note  9,  p.  402-3. 

Sufficiency  of  averments  of  unsuc- 
cessful efforts  to  ascertain  the  where- 
abouts of  the  witness,  see  infra, 
precedent  in  note  4,  p.  363;  Form  No. 
6286;  note  3,  p.  375;  Forms  Nos.  6289, 
6293;  note  3,  p.  393. 

Sufficiency  of  showing  that  the  wit- 
ness is  absent  by  reason  of  sickness, 
see  supra,  note  2,  p.  327;  infra.  Form 
No.  6284;  Form  No.  6288  and  notes 
thereto;  note  i,  p.  380;  Forms  Nos. 
6291,  6295;  note  4,  p.  385,  note  I,  p.  386; 
precedent  in  note  4,  p.  388-9;  Form 
No.  6305  and  notes  thereto. 

1,  This  is  paragraph  V  as  it  should 
be  under  the  practice  of  the  District  of 
Coliimbia. 

In  Maine,  Massachusetts  and  Nerv 
Hampshire,  paragraph  V  of  the  affi- 
davit should  read  as  follows:  "V. 
That  the  endeavors  and  means  which 
affiant  has  (or  /  have')  used  to  procure 
the  attendance  or  deposition  of  said 
witness  are  as  follows "  {stating  en- 
deavors used);  or  "V.  That  endeavors 
and  means  have  been  used  to  procure 
the  attendance  or  deposition  of  the 
said  George  Jones  as  follows,  to  wit" 
{stating  endeavors  used). 

2.  Expected  Testimony  Believed  to  be 
True.  —  This  averment  is  sometimes 
required  by  statute  or  rute  of  court. 
See  infra,  note  2,  p.  388. 

And  apart  from  statutory  require- 
ment it  is  frequently  inserted,  and,  fur- 
thermore, courts  have  held  it  to  be 
necessary.     See  infra,  note  2,  p.  368. 

Kentucky.  — The  affidavit  must  show 


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AD  JO  URNMENTS. 


6272. 


[Via.  That  affiant  (or  /)  verily  believe  (J)  this  cause  cannot  be 
tried  with  justice  to  himself  (or  myself^  without  .the  testimony  of  said 
George  Jones ^ 

VII.  That  affiant  knows  (or  I  know)  of  no  other  person  (or  «/;V«^5^) 
by  whom  affiant  (or  /)  can  prove  the  same  matters  (ox  facts').^ 


"that  the  affiant  believes"  the  testi- 
mony to  be  true.  Benge  v.  Com.,  92 
Ky.  i;  Helfrich  Saw,  etc.,  Co.  v.  Everly, 
(Ky.  1895)  32  S.  W.  Rep.  750,  where 
the  affidavit  was  held  defective  in  this 
particular. 

Missouri.  —  Must  state  that  appli- 
cant believes  the  facts  to  which  the  ab- 
sent witness  will  testify  are  true.  For 
want  of  this  averment  the  affidavit  will 
be  held  defective.  In  State  v.  Dusen- 
berry,  112  Mo.  277;  State  v.  Bryant,  93 
Mo.  273;  State  v.  Aired,  115  Mo.  471; 
State  V.  Underwood,  76  Mo.  630;  State 
V.  Maguire,  69  Mo.  198,  holding  that 
this  averment  was  unnecessary  where 
the  defendant  had  pleaded  not  guilty, 
was  decided  before  the  enactment  of 
the  present  provision  of  the  statute. 
See,  for  the  practice  in  criminal  cases, 
infra.  Form  No.  6291  and  notes  thereto. 

1.  Paragraph  Via  should  be  inserted 
under  the  District  of  Columbia  practice. 
See  list  of  statutes,  etc.,  cited  supra, 
note  I,  p.  331. 

2.  No  Other  Witness  to  Same  Facts.  — 
This  averment,  with  slight  variations 
and  phraseology,  is  required  by  statute 
or  rule  of  court  in  many  of  the  states. 
That  the  language  of  the  statute  must 
be  followed  verbatim  et  literatim,  see 
infra,  note  3,  p.  388.  It  has  also  been 
held  to  be  necessary  in  the  absence  of 
any  specific  requirement  or  rule  of 
court.  See  infra,  this  note,  also  supra, 
note  2,  p.  327,  and  infra,  note  on  p.  359 
relating  to  Virginia;  note  10,  p.  362,  note 
I,  p.  368,  note  I,  p.  393. 

Arkansas.  —  This  averment  is  not 
required  by  the  statute  now  in  force 
(Sand.  &  H.  Dig.  (1894),  §  5797),  nor 
was  it  required  by  Mansfield's  Dig. 
(1884),  §  5108;  nevertheless,  in  Jackson 
V.  State,  54  Ark.  243,  decided  in  1891, 
where  the  affidavit  was  held  insufficient 
in  its  showing  of  diligence,  the  court 
said:  "  It  will  also  be  observed  that  the 
motion  does  not  say  that  there  were  not 
other  witnesses  by  whom  the  same  facts 
could  be  proved,  but  only  that  defendant 
knew  of  no  other  by  whom  he  could  so 
well  prove  them."  It  seems  that  there 
was  a  statute  in  force  in  1847,  cited  in 
Turner  v.  Eustis,  8  Ark.  120,  which  re- 
quired an  averment  that  the  same  facts 


could  not  be  established  by  any  other 
witness. 

California.  —  The  affidavit  should 
state  that  the  same  facts  could  not  be 
proved  by  any  other  witness  whose 
testimony  can  be  procured.  Pierce  v. 
Payne,  14  Cal.  419;  Pope  v.  Dalton,  31 
Cal.  218;  People  v.  Gaunt,  23  Cal.  156; 
People  V.  Thompson.  4  Cal.  241;  Peo- 
ple V.  Ah  Fat,  48  Cal.  63;  People  v. 
Jenkins,  56  Cal.  5;  People  v.  Ashnauer, 
47  Cal.  98;  People  v.  Quincy,  8  Cal.  89. 
But  the  rule  requiring  that  the  absent 
evidence  shall  not  be  merely  cumula- 
tive does  not  apply  where  the  only  evi- 
dence to  the  same  fact  is  that  of  an 
interested  party,  especially  where  it  is 
that  of  a  defendant  in  a  criminal  case. 
People  V.  Ah  Lee  Doon,  97  Cal,  171. 

Colorado.  —  The  code  does  not  require 
this  statement.  But  in  Danielson  v. 
Gude,  II  Colo.  87,  where  it  was  held 
that  a  continuance  was  properly  re- 
fused, the  court  said:  "  It  does  not 
appear  from  the  affidavit  but  that  the 
same  facts  desired  to  be  proved  by  the 
witness  can  be  proven  by  other  wit- 
nesses." And  in  Mutzenburg  v.  Mc- 
Gowan,  (Colo.  App.  1897)  51  Pac.  Rep. 
523,  this  averment  in  the  affidavit  was 
held  to  be  essential. 

Georgia. — Consult  Form  No.  6284, 
infra,  and  notes  thereto. 

Illinois. — Consult  Forms  Nos.  6285, 
6286,  infra,  and  notes  thereto. 

Indiana.  —  Consult  Forms  Nos.  6287, 
6288,  infra,  and  notes  thereto. 

Iowa.  —  Consult  Forms  Nos.  6289, 
6290,  infra,  and  notes  thereto. 

Kansas. — This  statement  is  not  re- 
quired by  the  statute,  but  if  it  is  ap- 
parent that  the  facts  stated  could  be 
proved  by  other  witnesses  the  continu- 
ance will  be  denied.  Board  of  Regents 
V.  Linscott,  30  Kan.  240.  But  see  also 
Clouston  V.  Gray,  48  Kan.  36. 

Kentucky.  —  This  statement  is  not  re- 
quired by  the  code,  but  is  proper  in  all 
cases.  If  it  appears  that  the  same 
facts  can  be  proved  by  other  witnesses 
present,  it  is  not  necessarily  conclusive 
against  the  application,  for  these  wit- 
nesses may  not  be  entitled  to  credit  or 
may  be  witnesses  for  the  opposite  party 
and  hostile  to  the  applicant;  but  under 


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6272. 


CONTINUANCES  AND 


6272. 


\0r  VII.  That  such  testimony  cannot  be  obtained  from  any  other 
source.]^ 

[  Or  VII.  That  affiant  cannot  prove  the  same  facts  by  any  other  per- 
son (or  witness).^ 

[Or  VII.  That  affiant  is  unable  to  prove  said  facts  by  any  other 
person  whose  testimony  can  be  procured.]^ 

[Or  VII.  That  there  is  no  other  person  by  whom  affiant  can  prove 
the  same  facts.]* 

[Or  VII.  That  affiant  has  no  other  witness  by  whom  he  can  prove 
the  same  facts.]* 

[Or  VII.  That  affiant  knows  of  no  other  person,  whose  evidence  or 
attendance  could  have  been  procured  at  this  term,  by  whom  he  could 


such  circumstances  care  should  be 
taken  to  assert  positively  in  the  affida- 
vit that  the  presence  of  absent  wit- 
nesses is  indispensable  and  that  the 
case  on  this  point  cannot  safely  be 
trusted  to  the  testimony  present.  Owens 
V.  Starr.  2  Litt.  (Ky.)  232. 

Louisiana.  —  This  averment  not  re- 
quired by  the  statute;  nevertheless  the 
affidavit  is  regarded  defective  without 
it.  State  V.  Comstock,  36  La.  Ann. 
308.  Thus,  in  State  v.  Robinson,  29  La. 
Ann.  364,  where  the  affidavit  was  held 
insufficient,  the  court  said:  It  does  not 
aver  that  the  fact  sought  to  be  proved 
by  him  could  not  be  proved  by  other 
witnesses  known  to  the  accused,  but 
merely  that  "the  deponents  cannot 
prove  the  facts  by  any  other  witness 
summoned  here  today  on  their  behalf," 
which  latter  case  was  followed  in  State 
V.  Bradley,  30  La.  Ann.  326.  To  the 
same  effect  also  State  v.  Bolds,  37  La. 
Ann.  312;  State  v.  Primeaux,  39  La. 
Ann.  673.  But  compare  Harrison  v. 
Waymouth,  3  Rob.  (La. )  340,  and  Hew- 
lett V.  Henderson,  9  Rob.  (La.)  379. 

Mississippi.  —  See  Long  v.  State,  52 
Miss.  33,  where  the  affidavit  contained 
this  averment. 

Missouri.  — Consult  Form  No.  6291, 
infra,  and  notes  thereto. 

Nebraska.  —  Consult  Form  No.  6293, 
infra,  and  notes  thereto. 

Nevada. — This  averment  is  necessary. 
State  V.  Marshall,  19  Nev.  240.  And 
was  inserted  in  the  affidavits  in  State  v. 
O' Flaherty,  7  Nev.  153;  and  Choate  v. 
Bullion  Min.  Co.,  i  Nev.  73. 

Ne-M  Mexico.  —  An  affidavit  is  defec- 
tive which,  instead  of  using  the  lan- 
guage of  the  statute,  states  that  affiant 
"cannot  prove  the  same  facts  by  any 
other  person  present."  Kent  i'.  Favor, 
3  N.  Mex.  2ig. 


New  York.  —  Consult  Form  No.  6277, 
infra,  and  notes  thereto. 

Pennsylvania.  —  Consult  Form  No. 
6277,  infra. 

South  Dakota.  —  Consult  Form  No. 
6294,  infra,  and  notes  thereto. 

Tennessee.  — This  averment  is  neces- 
sary, though  not  required  by  the 
code.  See  Walt  v.  Walsh,  10  Heisk. 
(Tenn.)  314;  Rhea  v.  State,  10  Yerg. 
(Tenn.)  258;  Brown  v.  State,  85  (Tenn.) 
440;  State  V.  Morris,  i  Overt.  (Tenn.) 
220;  Cornwell  v.  State,  Mart.  &  Y. 
(Tenn.)  147;  Jones  v.  State,  10  Lea 
(Tenn.)  589. 

Texas.  —  Consult  Forms  Nos.  6295  to 
6298,  infra,  and  notes  thereto. 

Utah.  —  In  People  v.  Garns,  2  Utah 
260,  it  was  held  that  the  affiadavit 
should  show  that  there  are  no  other 
witnesses  by  whom  the  same  facts  can 
be  proved. . 

Virginia. — Consult  precedent  infra, 
note  on  p.  359. 

West  Virginia.  —  Affidavit  should 
state  that  the  same  facts  cannot  be 
proved  by  any  other  witness,  or  at  least 
not  by  any  other  witness  in  attendance. 
Dimmey  v.  Wheeling,  etc.,  R.  Co.,  27 
W.  Va.  32;  Wilson  v.  Wheeling,  19  W. 
Va.  323. 

Wisconsin.  —  Consult  Form  No.  6282, 
infra,  and  notes  thereto. 

1.  This  is  paragraph  VII  as  it 
should  be  under  the  Arizona  practice. 

2.  This  is  paragraph  VII  as  it 
should  be  under  the  Arkansas,  Nevada, 
North    Carolina,     Tennessee,    Utah  and 

Washington  practice. 

3.  This  is  paragraph  VII  as  it 'should 
be  under  the  California  practice. 

4.  This  is  paragraph  VII  as  it  should 
be  under  the  Colorado  practice. 

5.  This  is  paragraph  VII  as  it  should 
be  under  the  Florida  practice. 


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AD  JO  URNMENTS. 


6272. 


prove,  or  so  fully  prove,  the  same  facts.]  ^ 

\0r  VII.  That  affiant  knows  of  no  other  wjtness  by  whom  the 
foregoing  facts  can  be  fully  proved.]^ 

\0r  VII.  That  the  facts  which  the  said  George  Jones  will  prove 
cannot  be  proved  by  any  other  witness.]'^ 

\0r  VII,  That  affiant  is  unable  to  prove  these  facts  by  any  other 
witness  whose  testimony  can  be  readily  procured.]* 

VIII.  That  the  said  George  Jones  is  not  absent  by  the  consent,  pro- 
curement or  connivance  of  the  affiant.* 

\0r  VIII.  That  the  said  witness  is  absent  without  the  consent  or 
procurement  of  affiant,  directly  or  indirectly  given.]* 

\0r  VIII.  That  the  absence  of  the  said  George  Jones  has  not  been 
procured  by  the  act  or  connivance  of  the  affiant,  nor  by  others  at 
his  request,  nor  with  his  knowledge  or  consent.]^ 

IX.  That  affiant  expects  (or  /  expecf)  to  procure  (or  obtain  or 
secure)  the  testimony  of  the  said  George  Jones  at  the  next  term  of 
this  court.® 


1.  This  is  paragraph  VII  as  it  should 
be  under  the  Missouri  practice. 

2.  This  is  paragraph  VII  as  it  should 
be  under  the  New  Mexico  practice. 

3.  This  is  paragraph  VII  as  it  should 
be  under  the  West  Virginia  practice. 

4.  This  is  paragraph  VII  as  it  should 
be  under  the  IVyoming  practice. 

5.  Witness  Not  Absent  by  Consent,  etc. — 
This  averment  is  frequently  required 
by  statute,  in  which  case  the  language 
of  the  statute  must  be  strictly  followed. 
See  infra,  note  2,  p.  404.  And  the  aver- 
ment has  been  held  to  be  necessary 
even  where  no  statute  requires  it.  See 
infra,  note  3,  p.  361,  note  2,  p.  369, 
and  also  infra,  this  note. 

Georgia. —  See  Collins  v.  State,  78 
Ga.  87. 

Illinois. —  Consult  Forms  Nos.  6285, 
6286,  infra,  and  notes  thereto. 

Indiana. —  Consult  Forms  Nos.  6287, 
6288,  infra,  and  notes  thereto. 

Iowa. —  Consult  Forms  Nos.  6289, 
6290,  infra,  and  notes  thereto. 

Mississippi. — Lundy  v.  State,  44  Miss. 
673.  In  Ogle  V.  State,  33  Miss.  384,  an 
affidavit  stated  that  the  witness  was  not 
absent  by  consent  or  procurement. 

Missouri.  —  State  v.  Bryant,  93  Mo. 

273- 

South  Dakota.  —  Consult  Form  No. 
6294,  infra,  and  notes  thereto. 

Tennessee.  — As  to  this  averment,  see 
State  V.  Morris,  i  Overt.  (Tenn.)  220, 
quoted  in  Jones  v.  State,  10  Lea  (Tenn.) 
589;  Walt  V.  Walsh,  10  Heisk.  (Tenn.) 
314;  Brown  v.  State,  85  Tenn.  440. 

Texas.  —  Consult  Forms  Nos.  6295  to 
6298,  infra,  and  notes  thereto. 

Utah.  —  In  People  v.  Wiggins,  I  Utah 


845 


324,  where  the  continuance  was  held  to 
have  been  properly  refused,  the  court 
said:  "  There  is  nothing  in  the  affida- 
vit to  show  that  the  witness  did  not  go 
away  by  his  consent." 

Wisconsin.  —  Consult  Form  No.  6282, 
infra,  and  notes  thereto. 

6.  This  is  paragraph  VIII  as  it 
should  be  under  the  Florida  practice. 

7.  This  is  paragraph  VIII  as  it 
should  be  under  the  Wyoming  practice. 

8.  Expectation  of  Froooring  the  Testi- 
mony. —  Obviously  the  court  will  not 
continue  a  cause  on  account  of  the  ab- 
sence of  a  witness  if  it  appears  alto- 
gether improbable  that  his  testimony 
will  not  be  had  at  the  time  to  which  it 
is  sought  to  defer  the  trial.  Hence  it  is 
the  almost  invariable  practice  to  insert 
this  averment  in  the  affidavit.  It  is 
frequently  required  by  express  statu- 
tory provision  or  rule  of  court,  and  in 
the  absence  of  such  requirements  it 
has  been  held  to  be  necessary.  See 
supra,  note  2,  p.  327,  and  infra,  note 
4.  P-  354,  note  i,  p.  369. 

California.  —  The  application  will  be 
denied  if  the  affidavit  does  not  make  it 
probable  that  the  testimony  of  the  ab- 
sent witness  can  be  procured  within  a 
reasonable  time.  People  v.  Sanders, 
114  Cal.  216;  Harper  v.  Lamping,  33 
Cal.  641;  People  v.  Ah  Fat,  48  Cal.  63; 
People  V.  Lewis,  64  Cal.  401;  People  v. 
Francis,  38  Cal.  188;  People  v.  Ah 
Yute,  53  Cal.  613,  the  last  two  cases  be- 
ing very  exacting  on  this  point. 

Colorado.  —  The  code  does  not  re- 
quire this  statement,  but  it  is  prudent 
to  insert  it.  Wilson  v.  People,  3  Colo. 
325;    Michael  v.    Mills,   22  Colo.   439- 


Volume  5. 


6272. 


CONTINUANCES  AND 


6272. 


\0r  IX.   That  I  have  reasonable  expectation  and  belief  that  the 

required  by  the  statute.  Allard  v. 
Labau,  3  Martin  N.  S.  (La.)  293;  Gay 
V.  Kendig,  2  Rob.  (La.)  472;  Silva  v. 
Lafaye,  2  La.  198;  Richardson  v. 
Debuys,  4  Martin  N.  S.  (La.)  129; 
State  V.  Williams,  36  La.  Ann.  854; 
State  V.  Robinson,  29  La.  Ann.  364; 
Borron  v.  Mertens,  14  La.  Ann.  305; 
Brander  v.  Flint,  10  La.  391;  Anderson 
V.  Birdsall,  19  La,  441;  Thompson  v. 
Mississippi  M.  &  F.  Ins.  Co.,  2  La. 
234.  That  such  is  the  practice  see  also 
State  V.  Moultrie,  33  La.  Ann.  1146; 
State  V.  Egan,  37  La.  Ann.  368;  State  v. 
Bolds,  37  La.  Ann.  312;  State  v.  Briggs, 
34  La.  Ann.  69. 

And  if  it  appears  that  there  is  no 
reasonable  certainty  that  the  testimony 
can  and  will  be  procured,  the  continu- 
ance will  not  be  granted.  State  v. 
Dufify,  39  La.  Ann.  419,  where  the  only 
statement  on  the  subject  was  as  fol- 
lows: "  That  the  witnesses  are  labor- 
ing men,  and  your  deponent  is  informed 
that  they  have  procured  work  across 
the  lake,  in  the  state  of  Mississippi, 
which  will  occupy  them  some  time,  but 
not  more  than  a  month;  that  they  are 
residents  of  this  state,  which  is  their 
home,  and  will  not  return  before  the 
next  term,"  coupled  with  the  additional 
statement  that  "  The  presence  of  such 
witnesses  can  be  had  at  the  next  term." 
This  was  held  insufficient. 

And  in  Harrison  v.  Waymouth,  3 
Rob.  (La.)  340,  the  court  said:  "  Had 
the  defendants  sworn  that  they  were 
informed  that  the  witness  was  expected 
to  return  within  a  week  or  a  month, 
this  would  have  sufficed.  They  swore 
that  they  were  informed  that  he  had 
left  the  city  for  a  few  days.  This  cer- 
tainly means  that  he  intended  to  return 
within  that  time,"  and  the  affidavit  was 
held  sufficient. 

Minnesota.  —  In  Lowenstein  v.  Greve, 
50  Minn.  383,  it  Was  held  that  the  ap- 
plication was  properly  denied  because 
the  residence  of  the  witnesses  was  un- 
known, and  the  witnesses  had  not  been 
heard  from  for  many  years,  and  it  did 
not  satisfactorily  appear  that  there 
was  any  prospect  of  getting  their  evi- 
dence. 

Mississippi.  —  The  averment  is  not 
required  by  statute.  But  in  Noe  v. 
State,  4  How.  (^Miss.)  330,  the  affidavit 
was  pronounced  insufficient  "  in  not 
stating  that  he  expected  to  procure  the 
attendance  of  the  witness  at  the  next 


Dawson  v.  Coston,  18  Colo.  493,  all  of 
which  held  that  the  continuance  will  be 
refused  if  it  does  not  appear  probable 
that  the  testimony  can  be  procured. 

Georgia.  —  Consult  Form  No.  6284, 
infra,  and  notes  thereto. 

Illinois.  —  Consult  Forms  Nos.  6285, 
6286,  infra,  and  notes  thereto. 

Indiana.  —  Consult  Forms  Nos.  6287, 
628S,  infra,  and  notes  thereto. 

Iowa.  —  Consult  Forms  Nos.  6289, 
6290,  infra,  and  notes  thereto. 

Kansas.  —  Where  the  witness  was  ab- 
sent in  another  state,  and  his  address 
unknown,  the  continuance  was  prop- 
erly denied.  "The  defendant  said  he 
expected  to  procure  his  testimony  at 
the  succeeding  term,  but  no  facts  were 
alleged  from  which  the  court  could  see 
that  there  was  any  probability  thereof." 
Bliss  V.  Carlson,  17  Kan.  325.  And 
under  similar  circumstances  a  continu- 
ance was  denied  in  Kilmer  v.  St.  Louis, 
etc.,  R.  Co.,  37  Kan.  84. 

Kentucky.  — This  statement  is  not  re- 
quired by  the  code,  but  is  commonly 
inserted.  Where  the  witness  has  no 
fixed  residence,  and  his  whereabouts 
are  unknown,  the  affidavit  ought  to 
show  that  his  attendance  is  expected  at 
the  next  term.  Earp  ^'.  Com.,  9  Dana 
(Ky.)  301.  And  where  the  witness  re- 
sided in  Kansas,  and  was  admittedly 
unfriendly  to  the  affiant,  the  continu- 
ance was  refused  because  nothing  was 
stated  to  induce  the  belief  that  the  wit- 
ness could  be  procured  by  the  next 
term.  Kennedy  v.  Com.,  78  Ky.  454. 
But  if  the  affidavit  shows  that  the  wit- 
ness is  within  reach  of  process  it  is 
fair  to  presume  that  he  can  be  coerced 
to  attend  at  the  next  term.  Morgan  v. 
Com.,  14  Bush  (Ky.)  in.  And  where  the 
witness  resided  in  Ohio,  but  the  affidavit 
stated  that  he  was  in  the  habit  of  visiting 
the  place  where  the  trial  was  pending, 
had  been  served  with  process,  and  had 
promised  to  appear  at  the  next  term, 
and  it  was  alleged  that  the  affiant  could 
procure  his  attendance  at  the  next 
term,  the  affidavit  being  in  other  re- 
spects sufficient,  it  was  held  reversible 
error  to  refuse  the  continuance,  as  there 
were  reasonable  grounds  to  believe  that 
his  attendance  could  be  had.  White 
V.  Com.,  80  Ky.  480. 

Louisiana. — The  affidavit  must  al- 
lege that  the  party  expects  to  have  the 
testimony  of  the  absent  witness  at  the 
time  to  which  he  seeks  to  continue 
the  case,  although  this  showing  is  not 


•term. 


Volume  5. 


6272. 


AD  JO  URNMENTS. 


6272. 


testimony  of  the  saia  George  Jones  can  be  procured  by  the  next  terra 
of  this  court.]* 

\0r  IX.  That  affiant  expects  to  have  the  said  witness  present  at 
the  next  term  of  this  court.  ]2 

\0r  IX.  That  this  affiant  believes  he  will  procure  the  attendance 
and  testimony  of  the  said  George  Jones  by  the  next  term  of  this 
court,  and  affiant's  grounds  for  such  belief  are  as-foUows:  (^Here 
state  facts  showing  reasonable  grounds  of  beliefs  if  these  are  not  appar- 
ent in  the  other  parts  of  the  affidavit ^^ 

[Or  IX.  That  affiant  believes  the  attendance  or  testimony  of  the 
said  George  Jones  will  be  procured  at  the  next  term  of  this  court, 
and  that  the  grounds  for  such  belief  are  as  follows:  (^Here  state  facts 
showing  reasonable  grounds  of  belief  .y\^ 

[Or  IX.  That  affiant  believes  he  can  procure  the  testimony  of  the 
said  George  Jones  at  the  next  term  of  this  court.]* 

[Or  IX.  That  affiant  expects  and  believes  he  can  procure  the  testi- 
mony of  the  said  George  Jones  by  the  next  term  of  this  court.]* 

X.  That  this  application  (or  continuance)  is  not  made  (or  sought) 
for  delay  merely,  but  that  justice  may  be  done.^ 


Missouri.  —  Consult  Form  No.  6291, 
infra,  and  notes  thereto. 

Nebraska.  —  Consult  Form  No.  6293, 
infra,  and  notes  thereto. 

Nevada.  —  This  averment  is  usually 
deemed  necessary.  State  v.  O'Flaherty, 
7  Nev.  153.  And  the  facts  showing  a 
reasonable  ground  for  belief  that  the 
testimony  can  be  procured  should  be 
alleged  where  the  witnesses's  where- 
abouts are  unknown.  State  v.  Gray,  19 
Nev.  212.  Or  where  he  is  out  of  the 
state.  State  v.  Chapman,  6  Nev.  320; 
State  V.  Rosemurgey,  9  Nev.  308. 

New  York.  —  Consult  Form  No.  6277, 
infra,  and  notes  thereto. 

Oregon.  —  Where  the  witness  has  no 
fixed  residence,  a  clear  showing  should 
be  made  of  the  circumstances  tending 
to  prove  the  probability  of  obtaining 
his  evidence.  State  v.  Leonard,  3  Ore- 
gon 157,  where  the  substance  of  an 
insufficient  affidavit  is  given.  The 
same  rule  obtains  where  the  witness 
resides  out  of  the  state.  State  v. 
O'Neil,  13  Oregon  183,  holding  that  in 
such  a  case  it  was  not  enough  for  the 
affiant  to  declare  in  his  affidavit  "  I  am 
confident  I  can  procure  his  attendance 
at  the  next  term." 

Pennsylvania.  —  Consult  Form  No. 
6277,  infra,  and  notes  thereto. 

South  Dakota.  —  Consult  Form  No. 
6294,  infra,  and  notes  thereto. 

Tennessee.  —  See  State  v.  Morris,  I 
Overt.  (Tenn.)  220,  quoted  in  Jones  v. 
State,  10  Lea  (Tenn.)  589. 

Texas.  — Consult  Forms  Nos.  6295 
to  6298,  infra,  and  notes  thereto. 


Washington.  —  Where  the  witness  re- 
sides out  of  the  state,  the  affidavit 
should  state  the  facts,  showing  the 
probability  of  procuring  the  testimony 
of  such  witness  in  case  of  a  continu- 
ance. State  V.  Hutchinson,  14  Wash. 
580. 

Wisconsin.  —  Consult  Form  No.  6282, 
infra,  and  notes  thereto. 

1.  This  is  paragraph  IX  as  it  should 
be  under  the  practice  in  the  District  of 
Columbia. 

2.  This  is  paragraph  IX  as  it  should 
be  under  the  Florida  practice. 

3.  This  is  paragraph  IX  as  it  should 
be  under  the  Missouri  practice. 

Grounds  for  expectation  in  procuring 
the  testimony  of  the  absent  witness 
within  a  reasonable  time,  or  at  the  next 
term  of  court,  under  some  circumstances 
must  be  stated.  2  Tidd's  Pr.,  pp.  772, 
773;  Rex  V.  D'Eon,  3  Burr.  1514.  See 
also  infra,  note  I,  p.  369;  Form  No. 
6286;  note  2,  p.  376,  note  3,  p.  381,  note 
I,  p.  388,  note  4,  p.  393;  Form  No.  6294; 
note  3,  p.  405. 

4.  This  is  paragraph  IX  as  it  should 
be  under  the  New  Mexico  practice. 

5.  This  is  paragraph  IX  as  it  should 
be  under  the  Washington  practice. 

6.  This  is  paragraph  IX  as  it  should 
be  under  the  Wyoming  practice. 

7.  Application  Not  Made  for  Delay,  etc. — 
This  averment  is  one  of  the  common- 
places of  affidavits  for  continuance,  and 
is  almost  invariably  inserted,  being 
sometimes  expressly  required  by  statute 
or  rule  of  court.  See  list  of  statutes, 
etc.,  cited  supra,  note  i,  p.  331.     And 


847 


Volume  5. 


6273. 


CONTINUANCES  AND 


6273. 


\0r  X.  That  this  application  is  not  made  for  vexation  or  delay, 
but  in  good  faith,  for  the  purpose  of  obtaining  a  fair  and  impartial 

trial.  ]^ 

[XI.  That  the  facts  on  which  this  application  is  founded  occurred, 
or  came  to  the  knowledge  of  the  affiant,  too  late  to  allow  affiant  to 
apply  for  a  continuance,  as  prescribed  by  section  401  of  the  North 
Carolina  Code  of  Civil  Procedure;  and  that  this  application  is  made  as 
soon  as  it  reasonably  could  be  made  after  the  facts  stated  herein 
came  to  affiant's  knowledge.  J^ 

John  Doe  (or  Richard  Roe). 

[Subscribed  and  sworn  to  before  me  th.\s,  fifth  day  of  October,  iS97. 
Calvin  Clark,  Clerk  of  the  Circuit  Court,]^ 

Form  No.  6273.* 

•^       •  /in  the  Superior  Court,  Litchfield  County. 

State  of  Connecticut,  \ 
Litchfield  County.    \ 
John   W.  Hester,   of  Warren,  of  lawful  age,  being   duly   sworn. 


in  several  states  where  the  averment  is 
not  required  by  statute  or  rule  of  court, 
the  courts  have  nevertheless  held  it  to 
be  necessary.     See  infra,  this  note. 

Arkansas.  —  This  averment  is  not  re- 
quired by  the  statute  now  in  force 
(Sand.  &  H.  Dig.  (1894),  §  5797);  but  a 
statute  in  force  in  1847,  quoted  in 
Turner  v.  Eustis,  8  Ark.  121,  required 
that  the  affidavit  should  state  that  the 
"application  is  not  made  for  delay,  but 
that  justice  may  be  done."  And  it  was 
held  in  the  case  last  cited,  where  the 
affidavit  recited  that  "this  application 
is  not  made  for  delay,  but  that  the  law 
may  be  administered,"  that  the  depar- 
ture from  the  language  of  the  statute 
was  a  fatal  defect. 

California.  —  Should  state  that  it  is 
not  made  for  delay  merely.  People  v. 
Thompson,  4  Cal.  241;  People  v.  Jen- 
kins, 56  Cal.  5. 

Florida.  —  Consult  Form  No.  6283, 
infra,  and  notes  thereto. 

Georgia.  —  Consult  Form  No.  6284, 
infra,  and  notes  thereto. 

Kansas.  —  See  Clouston  v.  Gray,  48 
Kan.  36. 

Louisiana. — Statement  not  required 
by  statute,  but  deemed  necessary  by 
the  courts.  Allard  v.  Lobau,  3  Martin 
N.  S.  (La.)  293;  Richardson  v.  Debuys, 
4  Martin  N.  S.  (La.)  129;  see  also  State 
V.  Foster,  36  La.  Ann.  877;  State  v. 
Moultrie,  33  La.  Ann.  1146;  Bradner  v. 
Flint,  10  La.  391;  Harrison  v.  Way- 
mouth,  3  Rob.  (La.)  340. 


Missouri. — Consult  Form  No.  6291, 
infra,  and  notes  thereto. 

Nevada.  —  This  averment  was  in- 
serted  in  State  v.  O'Flaherty,  7    Nev. 

153- 

1.  This  is  paragraph  X  as  it  should 
be  under  the  Missouri  practice  in  civil 
cases.  As  to  Missouri  practice  in  crimi- 
nal cases,  see  Form  No.  6291,  infra. 

2.  Paragraph  XI  should  be  added 
under  North  Carolina  practice.  See 
list   of  statutes,  etc.,  cited  supra,  note 

I.  P-  331- 

8.  For  formal  parts  of  an  affidavit 
generally,  and  particularly  of  jurats, 
consult  the  title  Affidavits,  vol.  i,  p. 
560  et  seq. 

4.  Connecticut.  —  Section  2,  rule  No.  8, 
of  the  General  Rules  of  Practice  pro- 
vides that  "  Whenever  a  motion  is 
made  for  the  continuance  of  a  cause, 
on  account  of  the  absence  of  a  ma- 
terial witness,  such  motion,  if  the 
adverse  party  require  it,  shall  be  sup- 
ported by  an  affidavit,  stating  the  name 
of  the  absent  witness,  if  known,  and 
the  particular  facts,  which,  it  is  be- 
lieved, can  be  proved  by  him,  with  the 
grounds  of  such  belief."  In  practice 
an  affidavit  is  seldom  required,  an  oral 
statement  being  accepted  as  satisfac- 
tory, and  there  is  no  well  defined  usage 
as  to  the  form  of  an  affidavit.  The  rule 
above  quoted  further  provides  that  a 
continuance  may  be  avoided  by  a  writ- 
ten admission  at  the  foot  of  the  affi- 
davit that  the  witness  would  testify  to 


348 


Volume  5. 


6274. 


AD  JO  URNMENTS. 


6274. 


deposes  and  says:  My  name  vs,  John  IV.  Hester.  I  am  sixty-seven 
years  of  age.  I  reside  in  Warren.,  Connecticut.  I  am  a  carriage- 
maker  by  trade  and  am  engaged  in  that  business.  I  know  the  par- 
ties in  this  case.  I  know  William  Muldoon,  on  account  of  whose 
absence  a  continuance  is  asked  by  the  plaintiff.  Mr.  Muldoon  has 
worked  for  me  in  my  shop  for  sei'en  years,  or  thereabouts.  He  is  a 
native  of  Ireland,  and  is  now  on  a  voyage  to  his'  birthplace.  He 
expects  to  return  in  the  fall  or  early  winter.  He  is  an  intelligent 
man,  and  is  a  credible  person.  In  conversation  with  him  last  year 
he  told  me  {Here  follows  a  statement  of  the  particular  facts  which  it 
was  believed  the  witness  would  prove'). 

John  W.  Hester. 
Subscribed   and  sworn  to  before  me  this  M/ra^  day  of  J/dy,  \Z98. 

Elbert  P.  Roberts,  Justice  of  the  Peace. 


John  Doe 

against 

Richard  Roe. 


Form  No.  6274.' 
In  the  Circuit  Court  of  Allegany  County. 
{Suggestion  for  Continuance^ 


Maryland,  ) 


To  wit. 


State  of 

County  of  Allegany. 

I  hereby  certify  that  on  \\i^  first  day  oi February,  in  the  year  \Z98. 
before  the  subscriber,  a  justice  of  the  peace  of  the  state  of  Maryland 
in  and  for  the  county  of  Allegany  aforesaid,  personally  appeared  John 
Doe  (or  Richard  RoeY  and  made  oath  upon  the  Holy  Evangely  of 
Almighty  God. 

I.  {Like  paragraph  I  in  Form  No.  6272). 

II.  That  affiant  believes  his  cause  cannot  be  tried  with  justice  to 


the  facts  stated  in  the  aflSdavit.  Of 
course  if  such  an  admission  is  sought 
the  showing  for  a  continuance  must 
be  made  by  affidavit.  The  foregoing 
rule  was  first  promulgated  in  1847 
(see  18  Conn.  565)  and  is  quoted 
in  2  Swift's  Dig.  (ed.  1884),  p.  699, 
preceded  by  the  statement  that  "The 
materiality  of  the  testimony  generally 
rests  on  the  professional  statement  of 
counsel." 

This  form,  excepting  dates  and 
names,  is  substantially  a  copy  of  an 
affidavit  used  in  a  case  by  one  of  the 
most  eminent  practitioners  in  the  state. 

1.  The  Statutory  Provisions.  —  "  Upon 
suggestion,  supported  by  the  affidavit 
of  the  party,  or  some  other  credible 
person,  that  the  evidence  of  a  witness 
who  resides  in  some  place  beyond  the 
Jimits  of  this  state,  or  the  evidence  of  a 
witness  residing  within  this  state,  is 
wanting,  the  court  shall  continue  the 
cause  for  such  time  as  may  be  deemed 
necessary  to  enable  the  party  to  procure 


the  attendance  or  obtain  the  testimony 
of  such  absent  witness;  provided,  the 
party  applying  for  the  continuance  shall 
comply  with  the  provisions  of  the  two 
following  sections."  Md.  Pub.  Gen. 
Laws  (1888),  art.  75,  §  57. 

2.  The  soggestion  referred  to  in  the 
text  may  be  made  by  the  attorney  in 
the  following  form:  '" fohn  Doe  (or 
Richard  Roe),  plaintiff  (or  defendant)  in 
the  above  entitled  cause,  appearing  by 
Daniel  Webster,  his  attorney,  respect- 
fully suggests  to  the  court  here  that  the 
evidence  of  one  George  f ones,  a  witness 
who  resides  in  the  city  of  Wilmington, 
state  of  Delaware,  is  wanting,  and  that 
{Here  set  out  allegations  in  substance  as 
set  out  in  the  affidavit  in  Form  No.  62^4). 

Daniel  Webster, 
Attorney  for  Plaintiff  (or  Defendant)." 

S.  Who  may  Make  Affidavit.  —  The  affi- 
davit may  be  made  by  "  the  party  apply- 
ing for  a  continuance"  or  "some  other 
credible  person."  Md.  Pub.  Gen. 
Laws  (1888),  art.  75,  §  58. 


349 


Volume  5. 


6275.  CONTINUANCES  AND  6275. 

himself  without    the   evidence  ol  George  Jones}  who   is  an   absent 
witness. 

III.  That  said  George  Jones  resides  in  {State  place  of  residence')?' 

IV.  That  the  testimony  of  the  said  George  Jones  is  material,  com- 
petent and  proper  in  this  suit.^ 

V.  That  affiant  believes  the  said_/c?«^j  will  prove  the  following 
facts  {Here  state  facts). ^ 

VI.  That  affiant  has  used  his  proper  and  reasonable  endeavors  to 
procure  the  testimony  of  the  said  George  Jones? 

VII.  That  he  has  reasonable  expectations  and  belief  that  the  same 

can  be  procured  in  a  reasonable  time,^  to  wit,  by  the  day  of 

,  \2>98  (or  by  the  next  term  of  this  court). 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6275." 
Circuit  Court  for  the  County  of  Calhoun. 
John  Doe.,  plaintiff, 
against 
Richard  Roe.,  defendant. 
Calhoun  County,  ss. 
John  Doe  (or  Richard  Roe).,  being  duly  sworn,  says: 

I.  (^Like paragraph  I  in  Form  No.  62T2.) 

II.  That  notice  that  said  cause  would  be  brought  on  for  trial  at  the 
next  term  of  said  court,  to  be  held  at  the  court-house  in  the  city  of 
Marshall.,  in  said  county,  on  t\\^  first  day  oi  March,  i857,  was  served 
by  said  plaintiff  (^or  defendant)  upon  said  defendant  {ox plaintiff)  on 
the  tenth  day  of  February,  i897. 

III.  That  deponent  has  fully  and  fairly  stated  the  case  in  this  cause 
to  Daniel  Webster,  Fs^uire,  his,  counsel  therein,  who  resides  at  Mar- 
shall, and  that  he  has  a  good  and  substantial  cause  of  action  (or  de- 
fense) upon  the  merits  thereof,  as  he  is  advised  by  his  counsel  after 

such  statement  made  as  aforesaid  and  verily  believes  to  be  true. 

IV.  That  deponent  has  also  fully  and  fairly  disclosed  to  his  said 
counsel  the  facts  which  he  expects  and  believes  he  shall  be  able  to 
prove  by  George  Jones,  who  resides  at  {Here  state  place  of  residence),  who 
is  a  witness  for  this  deponent  therein,  and  that  said  George  Jones  is  a 

1.  The  name  of  the  witness  must  be  which  are  in  his  favor."  Dean  v. 
stated.     Md.    Pub.  Gen.   Laws   (1888),     Turner,  31  Md.  58. 

art.  75,  §  58.     See  supra,  note  i,  p.  334.  Md.   Pub.  Gen.   Laws  (1888),  art.  75, 

2.  Besidence  of  Witness.  —  See  supra,  §59,  provides  that  the  court  may  ex- 
note  I,  p.  334.  amine    the    affiant   in    regard    to    the 

3.  Following  the  language  of  the  materiality  of  the  testimony,  probability 
statute.  •  Md.  Pub.  Gen.  Laws  (1888),  of  procuring  it,  etc.,  and  shall  refuse 
art.  75,  I  58.  a  continuance  if  the  facts  alleged  are 

4.  Statement  of  Facts  to  be  Proved. —  admitted  by  the  adverse  party. 

See,  generally,  j^M/rrt,  note  7,  p.  335.  5.  Uichigan.  —  This  affidavit  is  drawn 
"  Whenever  a  party  seeks  a  continu-  under  the  provisions  of  Circuit  Court 
ance  upon  the  ground  of  the  absence  of  Law  Rule  No.  22,  which  rule  also  gov- 
a  material  witness,  it  is  his  duty  to  state  erns  continuances  in  chancery  cases  by 
in  his  affidavit  fully  and  frankly,  if  he  virtue  of  Chancery  Rule  No.  15.  Con- 
knows  them,  all  the  material  facts  suit  also  the  annotations  to  Form  No. 
which  the  witness  will  prove,  as  well  6272,  supra. 
those  which  are   unfavorable  as  those 

350  Volume  5. 


6276.  ADJOURNMENTS.  6276. 

material  witness  for  this  deponent  in  said  cause,  as  he  is  advised  by  his 
said  counsel  after  such  statement  made  as  aforesaid  and  verily  be- 
lieves to  be  true. 

V.  That  deponent  cannot  safely  proceed  to  the  trial  of  said  cause 
without  the  testimony  of  said  George  Jones,  as  this  deponent  is  also 
advised  by  his  said  counsel  after  such  statement  made  as  aforesaid 
and  verily  believes  to  be  true> 

VI.  That  said  witness  has  been  duly  subpoenaed,*  and  is  absent 
without  deponent's  consent,  procurement  or  connivance. 

VII.  That  deponent  expects  and  believes  that  he  will  be  able  to 
procure  the  attendance  of  said  witness  at  the  next  term  of  this  court, 
or  his  testimony  by  commission. 

VIII.  That  this  application  for  continuance  is  not  made  for  the  pur- 
pose of  delay  merely,  but  for  the  purpose  of  obtaining  a  fair  and 
impartial  trial  upon  the  merits.  ^ 

John  Doe  (or  Richard Roe^. 
Sworn  and  subscribed  to  before  me  thisyfr^/  day  of  March,  \W8. 
(seal)  Norton  Porter,  Notary  Public, 

Calhoun  County,  Michigan. 

Form  No.  6276.* 

New  Jersey  Supreme  Court. 
Richard  Roe  ) 

ads.         [•  In  Tort. 
John  Doe.     ) 
Essex  County,  ss. 
Richard  Roe,  being  duly  sworn  according  to  law  upon  his  oath,  says: 

1.  Expected  Testimony.  —  This  form  is  that  he  is  sick,  the  prospect  of  his  re- 
drawn for  an  affidavit  on  a  first  applica-     covery,  etc. 

tion  for  continuance.  Onasecond  appli-  8.  Motion  Made  After  First  Day  in  Term, 

cation  insert  at  the  point  indicated  in  the  — If  the  motion  is  made  after  the  first 

text  a  statement  of  "  the  facts  which  he  day  in  term,  a  sufficient  excuse  must  be 

expects  to  prove  by  the  absent  witness"  shown   for  the  delay  (Circuit  Ct.  Rule 

(Circuit  Ct.  Rule  No.  22);  that  is,  "  And  No.  22).     And  in  such  case  it  would  be 

this  deponent  further  says  that  he  ex-  prudent,  if  not  necessary,  to  insert  the 

pects  to  prove  by  the  said  witnesses  the  excuse   in   the  affidavit   at  this   point, 

following  facts,"    proceeding    then    to  For  a  form  under  a  statutory  provision 

state  the  facts.  requiring  an  excuse  for  laches  see  Form 

In  a  Criminal  Case.  —  It  was  held    in  No.  6289. 

People  V.  Burwell,  106  Mich.  27,  which  4.  New  Jersey.  —  There  is  no  statute 

appears  to  have  been  a  first  application,  or  rule  of  court  in  New  Jersey  prescrib- 

that  the  motion  was  properly  overruled  ing  the  requisites  of   an   affidavit   for 

because    the    affidavit    did    not     state  continuance.  The  form  given  in  the  text 

what  the  defendant  expected  to  prove  is  what  is  denominated  in  common-law 

by  the  absent  witnesses.     See  also  Peo-  practice  the  "common  affidavit,"  which 

pie  V.  Anderson,  53  Mich.  60.  differs  from  a  special  affidavit  in  that  the 

2.  Diligence  to  Secure  Testimony.  —  On  latter  contains  a  statement  of  the  facts 
a  second  application  Circuit  Court  Rule  expected  to  be  proved  by  the  witness. 
No.  22  requires  the  applicant  to  "  state  The  circumstances  under  which  a 
with  particularity  the  diligence  he  has  special  affidavit  is  required  are  shown 
used  "  to  procure  the  attendance  of  the  infra,  note  i,  p.  352,  note  3,  p.  353, 
witness;  by  which  we  understand  that  and  it  is  believed  that  the  practice  there 
the  applicant  should  state  every  step  laid  down  would  be  enforced  in  New 
that  has  been  taken  and  every  known  Jersey  under  like  circumstances.  Con- 
circumstance  which  may  explain  the  suit  also  annotations  to  Form  No.  6272, 
absence  of  the  witness;  as,  for  instance,  supra. 

351  Volume  5. 


6277.  CONTINUANCES  AND  ^211, 

That  he  is  the  defendant  in  this  cause.  That  issue  was  joined 
herein  on  the  third  ddiy  ol  February,  x.'d.\2>98.  Thzt  George /ones, 
who  resides  at  Hackensack,  in  Bergen  county,  is  a  material  witness  for 
this  deponent  in  this  cause,  as  he  is  advised  by  his  counsel  and  verily 
believes  to  be  true.  That  said  deponent  cannot  safely  proceed  to  the 
trial  of  this  cause  without  the  testimony  of  the  said  George  Jones. 
That  this  deponent  has  used  due  diligence  to  procure  the  attendance 
of  the  said  George  Jones  in  that  for  the  purpose  of  subpoenaing  him  this 
deponent,  on  the  fifth  day  of  February,  a.  d.  i2>98,  went  to  his  dwell- 
ing in  Hackensack,  and  was  informed  that  he  had  gone  to  Jersey  City, 
in  the  county  of  Hudson,  and  state  of  New  Jersey,  to  which  place  this 
deponent  went  on  the  same  day,  and  was  then  told  and  believed  it  to 
be  true  that  said  George  Jones  had  gone  away.  That  this  deponent 
cannot  get  any  information  as  to  the  present  whereabouts  of  said 
George  Jones,  but  is  informed  that  he  will  return  to  his  home  in  Hack- 
ensack in  a  month.  That  this  deponent  expects  to  be  able  to  procure 
the  attendance  of  the  said  George  Jones  at  the  first  sittings  of  the 

next term  of  this  court. 

Richard  Roe  (or  John  Doe). 

Sworn  and  subscribed  to  before  me  this  twelfth  day  of  February, 
A,  D.  iZ98.  Abraham  Kent,  Justice  of  the  Peace. 


Form  No.  6277.* 

[^Supreme  Court,  Suffolk  County, 
John  Doe,  plaintiff,      i 
against  V 

Richard  Roe,  defendant.  ) 

State  of  New  York, 
County  of  Suffolk. 

John  Doe  (or  Richard  Roe),^  being  duly  sworn,  saysrj^ 

I.  (Like  paragraph  I  in  Form  No.  6272.) 


rk,  ) 


1,  New  York  and  Pennsylvania  —  Com-  or  where  the  circumstances  are  such  as 
mon  Affidavit. — In  common-law  prac-  to  cast  suspicion  on  the  good  faith  of 
tice,  which  for  the  most  part  has  always  the  application,  a  "special  affidavit," 
prevailed  in  New  York  in  applications  so  called,  should  be  filed  by  the  appli- 
for  continuances,  the  affidavit  in  sup-  cant.  4  Encycl.  of  PI.  and  Pr.  884. 
port  of  a  first  application,  when  there  Doubtless  a  special  affidavit  might 
are  no  suspicious  circumstances,  is  de-  properly  be  required  in  Pennsylvania 
nominated  the  "common  affidavit."  under  similar  circumstances. 
4  Encycl.  of  PI.  and  Pr.  884.  In  2.  Who  may  Make.  —  Ordinarily  the 
Pennsylvania  there  is  no  statute  pre-  affidavit  should  be  made  by  the  party 
scribing  the  requisites  of  an  affidavit  himself.  Brooklyn  Oil  Works  z/.  Brown, 
for  continuance,  nor  is  there  any  uni-  7  Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)382. 
form  practice  on  the  subject.  In  some  But  an  attorney  may  make  the  affidavit 
courts  an  oral  application  by  counsel  is  when  it  is  made  to  appear  that  he  has 
deemed  sufficient,  while  in  others  the  personal  knowledge  of  the  facts.  Gar- 
affidavit  is  required;  but  it  appears  that  field  Nat.  Bank  f.  Colwell,  (Supreme 
the  common  affidavit,  as  used  in  New  Ct.)  28  N.  Y.  St.  Rep.  723.  See  also 
York,  will  suffice  under  ordinary  cir-  supra,  note  3,  p.  317,  note  i,  p.  332. 
cumstances  on  a  first  application.  3.  For  the  formal  parts  of  an  affidavit 
Special  Affidavit.  —  On  a  second  or  in  Pennsylvania  see  the  title  Affi- 
subsequent  application,    in  New  York,  davits,  vol.  I,  p.  587. 

353  Volume  5. 


6277.  ADJOURNMENTS.  ^211. 

II.  That  issue  was  joined  in  the  above  entitled  cause  on  the 

day  of ,  xZ98. 

III.  That  the  above  entitled  cause  was  noticed  for  trial  by  the 
plaintiff  on  the day  of ,  \2>98. 

[IV.  That  deponent  has  fully  and  fairly  stated  the  case  in  this 
cause  to  Robert  McLean,  -Esq.,  his  counsel  therein,  who  resides  at 
Patchogue,  in  Suffolk  county,  state  of  New  York,  and  that  he  has  a 
good  and  substantial  defense  upon  the  merits  thereof,  as  he  is 
advised  by  his  counsel  after  such  statement  made  as  aforesaid  and 
verily  believes  to  be  true.]^ 

V.  That  deponent  has  fully  and  fairly  disclosed  to  his  said  counsel 
the  facts  which  he  expects  and  believes  he  shall  be  able  to  prove  by 
George  Jones,  who  resides  at  Babylon  in  said  Suffolk  county,  and  is  a 
material  witness  for  this  deponent  in  this  cause,  as  he  is  advised  by 
his  said  counsel  after  such  statement  made  as  aforesaid  and  verily 
believes  to  be  true.^ 

VI.  {Like paragraph  V in  Form  No.  6275.) 

[Via.  That  deponent  expects  to  prove  by  the  said  George  Jones 
the  following  facts  {Here  state  the  facts  expected  to  be  proved)!^ 
That  deponent  believes  the  foregoing  facts  are  true.*  That 
deponent  cannot  prove  the  same  facts  by  the  testimony  of  any  other 
witness.*]^ 

VII.  That  said  George  Jones '\%  not  in  attendance,  and  [that  this 
deponent,  for  the  purpose  of  subpoenaing  him,  went  to  his  dwelling 
in  Babylon,  in  said  Suffolk  county,  on  the  tenth  day  of  March,  i898, 

1.  Paragraph    IV   is    to   be   inserted     cient.    People  t/.  Jackson,  iii  N.  Y.  362. 
when  the  affidavit  is  by  the  defendant.         In  a  criminal   case   the   court   said: 

An  affidavit  of  merits  is  nectisary  when  "  Whatever  may  be  the  ordinary  prac- 

the  application  is  made  by  the  defend-  tice,  I  have  no  doubt  that  the  strict  rule 

ant.     Brooklyn  Oil  Works  v.  Brown,  7  requires  the  prisoner  in  every  case  to 

Abb.  Pr.  N.  S.  (N.  Y.  Super.  Ct.)  382.  make  a  full  disclosure  of  the  names  of 

2.  Materiality  of  Testimony.  —  On  the  his  witnesses,  and  of  the  facts  he  ex- 
first  application,  when  there  is  no  cause  pects  to  prove  by  them,  though  this 
for  suspicion  that  the  object  is  delay,  it  strictness  may  very  well  be  waived  by 
is  sufficient  to  state  that  the  testimony  the  district  attorney  or  by  the  court,  on 
of  the  witness  is  material  without  setting  application  made,  at  the  term  when  the 
forth  the  facts  which  he  is  expected  to  indictment  is  found."  People  z/.  K rum- 
prove.  People  V.  Vermilyea,  7  Cow.  (N.  mer,4  Park.  Cr.  Rep. (Buffalo  Super.  Ct.) 
Y.)  369;  Ogden  v.  Payne,  5  Cow.  (N.Y.)  217.  See  generally  also,  as  to  the  suf- 
15;  Brooklyn  Oil  Works  v.  Brown,  7  ficiency  of  statement  of  expected  testi- 
Abb.  Pr.  N.  S.  (N.  Y.)  382.  The  affi-  mony,  supra,  note  7,  p.  335  e(  seq. 
davit  must  be  positive  in  the  averment  3.  The  principal  feature  that  distin- 
that  the  testimony  is  material.  Brook-  guishes  the  special  affidavit  from  the 
lyn  Oil  Works  v.  Brown,  7  Abb.  Pr.  N.  common  affidavit  is  that  the  special 
S.  (N.  Y.  Super.  Ct.)  382,  where  the  affidavit  must  state  the  facts  which  it 
court  said:  "  The  practice  now  is  to  is  expected  the  absent  witness  will  tes- 
swear  that  the  defendant  is  advised  and  tify  to  or  prove.  Brooklyn  Oil  Works 
believes  the  witness  to  be  material."  v.  Brown,  7  Abb.  Pr.  N.  S.  (N.  Y. 
See  also  People  z/.  Jackson,  III  N.  Y.  362.  Super.  Ct.)  382.    See  also  Onderdonk  z/. 

In  order  to  show    the  materiality  of  Ranlett,  3  Hill  (N.  Y.)  323. 

the  alleged   absent  testimony  it  must  4.  Testimony  believed  to  be  true,  see 

appear  by  the  affidavit   that  there  is,  in  supra,  note  2,  p.  342. 

fact,    an    absent    witness.      "Current  8.  No  other  witness  to  same  facts,  see 

rumor   about   ihe    village"    that    there  supra,  note  2,  p.  343. 

was   such  a  witness,    whose  name  and  6.  This  paragraph  should  be  inserted 

whereabouts  are  unknown,  is  notsuffi-  when  the  affidavit  is  a  special  affidavit. 

5  E.  of  F.  P.  —  23.                          353  Volume  5. 


6278. 


CONTINUANCES  AND 


6278. 


and  was  informed  that  he  had  gone  to  Huntington,  in  said  county,  to 
which  place  this  deponent  went  on  the  same  day,  and  was  then  and 
there  told,  and  believed  it  to  be  true,  that  said  George  Jones  hsid  gone 
to  Connecticut,  but  intended  to  return  to  his  home  in  Babylon  in 
about  a  month. ]^ 

\y\\a.  That  deponent  has  used  due  diligence  to  procure  the  at- 
tendance of  the  said  George  Jones  \xi  that  he  (Jlere  state  what  dili- 
gence has  been  used^.\^ 

VIII.  That  said  George  Jones  is  not  absent  by  the  consent,  pro- 
curement or  connivance  of  the  deponent. ^ 

IX.  That  deponent  expects  and  believes  that  he  can  procure,  and 
intends  to  procure,  the  attendance  of  the  said  George  Jones  as  a  wit- 
ness in  this  cause  at  the  next  circuit  appointed  to  be  held  at  River- 
head  on  the  third  ddiy  of  October,  iS98.^ 

X.  That  this  application  is  not  made  for  delay,  but  that  justice 
may  be  done.^ 

John  Doe  (or  Richard  Roe). 
[Sworn  to  before  me  this  seventeenth  day  of  March,  i898. 

Calvin  Clarh, 
County  Clerk  of  Suffolk  County.]*' 


Form  No.  6278. 


1.  If  the  witness  has  been  subpoe- 
naed, state,  in  lieu  of  the  averment  in 
the  text,  "  but  that  he  was  duly  subpoe- 
naed on  the  tenth  day  of  March,  \ig8." 
It  has  been  held,  however,  that  the 
common  affidavit  need  not  state  the 
date  when  the  witness  was  subpoenaed 
unless  the  omission  be  made  a  ground 
of  objection.  Hooker  v.  Rogers,  6 
Cow.  (N.  Y.)  577. 

2.  Paragraph  Vila  should  be  inserted 
instead  of  paragraph  VII  when  the 
affidavit  is  a  special  affidavit. 

The  affidavit  must  show  that  due  dili- 
gence has  been  used  to  procure  the  at- 
tendance of  the  witness.  Brooklyn 
Oil  Works  v.  Brown,  7  Abb.  Pr.  N.  S. 
(N.  Y.  Super.  Ct.)  382.  For  sufficient 
averments  of  diligence  see  Hooker  v. 
Rogers,  6  Cow.  (N.  Y.)  577,  where  the 
witness  was  sick  in  bed;  Kelly  v.  Weir, 
19  Misc.  Rep,-  (N.  Y.  City  Ct.)  366; 
Michelsen  v.  Spies,  83  Hun  (N.  Y.) 
509;  Nixen  v.  Hallett,  2  Johns.  Cas. 
(N.  Y.)  218. 

For  insufficient  diligence  shown  see 
Keller  v.  Feldman,  29  Abb.  N.  Cas.  (N. 
Y.  C.  PI.)  426;  Fake  v.  Edgerton,  6 
Duer  (N.  Y.)  653;  Hays  v.  Berryman,  6 
Bosw.  (N.  Y.)  679,  where  no  special 
reason  was  assigned  for  not  taking  the 
deposition  of  the  witness  and  thus 
preventing  the  loss  of  his  testimony. 
See  also  supra,  note  5,  p.  339. 

The   special  affidavit  must  be  more 


minute  than  the  common  affidavit  in 
stating  the  facts  and  circumstances  on 
which  the  application  rests  with  re- 
spect to  diligence  in  obtaining  the  tes- 
timony of  the  absent  witness.  People  v. 
Vermilyea,  7  Cow.  (N.  Y.)  369. 

3.  Witness  not  absent  by  consent,  etc. , 
s&c  supra,  note  5,  p.  345. 

4.  Expectation  of  Procuring  testimony. 
—  The  affidavit  should  state  that  appli- 
cant expects  to  procure  the  testimony 
of  the  absent  witness  by  the  time  to 
which  it  is  sought  to  defer  the  trial. 
People  V.  Vermilyea,  7  Cow.  (N.  Y.) 
369;  Brown  v.  Moran,  65  How.  Pr.  (N. 
Y.  C.  PI.)  349;  Brooklyn  Oil  Works  v. 
Brown,  7  Abb.  Pr.  N.  S.  (N.  Y.  Super. 
Ct.)  382.  See  also  Onderdonk  v.  Rau- 
lett,  3  Hill  (N.  Y.)  328;  also,  generally, 
with  respect  to  the  statement  of  expec 
tation  of  procuring  testimony,  see  supra, 
note  8,  p.  345.  And  if  the  facts  alleged 
show  that  there  is  no  reasonable  ground 
for  the  expectation  a  continuance 
should  be  refused.  People  v.  Jackson, 
III  N.  Y.  362. 

5.  Application  not  made  for  delay,  etc., 
see  supra,  note  7,  p.  347 

6.  See  stipra,  note  3,  p.  352. 

7.  North  Dakota.  —  In  civil  cases,  con- 
tinuances are  regulated  by  District 
Court  Rule  No.  XXXII  (3  N.  Dak. 
xxxi),  which  provides  that  "All  affi- 
davits for  continuances  on  account  of 
the  absence  of  a  material  witness  or  ma- 


354 


Volume  5. 


6279.  ADJOURNMENTS.  6279. 

State  of  North  Dakota,  \  In  the  District  Court, 

County  of  Burleigh.       \  ^^'    Fifth  Judicial  District. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

State  of  North  Dakota,  \ 

County  of  Burleigh.       \ 

John  Doe  (or  Richard  Roe'),  being  first  duly  sworn,  says: 

I.  (^Like  paragraph  I  in  Form  No.  6272.) 

la.  That  affiant  has  a  valid  cause  of  action  or  defense  herein,  to 
wit  (Ilere  state  the  facts  showing  a  valid  cause  of  action  or  defense,  as 
the  case  may  be). 

II.  (^Like  paragraph  II  in  Form  No.  6272.) 

III.  {Like  paragraph  III  in  Form  No.  6272.) 

IV.  That  affiant  expects  and  believes  that  the  said  George  Jones., 
if  he  were  present  and  orally  examined  by  the  court,  would  testify  as 
follows :  {State  expected  testimony. ) 

V.  That  affiant  has  used  due  diligence  to  prepare  for  trial  and  to 
procure  the  testimony  of  the  said  George  Jones  in  that  {Here  state  the 
nature  and  kind  of  diligence  used). 

VI.  That  affiant  believes  said  testimony  is  true. 

VII.  That  the  same  facts  cannot  satisfactorily  be  shown  by  any 
other  available  evidence. 

VIII.  {Like paragraph  VIII  in  Form  No.  6272.) 

IX.  {Like  paragraph  IX  in  Form  No.  6272.) 

X.  {Like paragraph  X  in  Form  No.  6272.) 

Subscribed  and  sworn  to  before  me  this  fifth  day  of  March, 
1 897. 

Calvin  Clark,  Clerk  of  the  District  Court. 

Form  No.  6279.' 

Supreme  Court. 
Common  Pleas  Division. 
Providence,  So. 
John  Doe      ) 
against        [■  No.  2102. 
Richard  Roe.   ) 
I,  John  Doe  (or  Richard  Roe)  on  oath  declare  and  say: 

terial  evidence  shall  show  to  the  satis-  orally  examined  in  court,  or  the  nature 

faction  of   the  court    all  facts  therein  of  any  document  wanted  and  where  the 

stated,   that  the  applicant  has  a  valid  same  may  be  found,  and  that  the  same 

cause  of  action  or  defense,  in  whole  or  facts  cannot  satisfactorily  be  shown  by 

in   part,  and  if  in  part  only  he  shall  any  other  available  evidence." 

specify  particularly  to  what  part,  and  In  criminal  cases,  continuances   are 

shall  also   show  as  aforesaid    that  he  governed  by  the  rule  of  court  above 

has   used  due  diligence  to  prepare  for  quoted,    by    virtue    of   N.    Dak.    Rev. 

trial,  and  the  nature  and  kind  of  dili-  Codes  (1895),  §  8141, 

gence   used,   and   the  name  and   resi-  Consult  also  the  annotations  to  Form 

denceof  the  absent  witness  or  witnesses.  No.  6272,  supra. 

and    what    he    expects    and    believes  1.  Bhode    Island.  —  This  affidavit    is 

such    witness    (or     witnesses)     would  drawn  under  the  provisions  of  Rules 

testify  to  were  he  or  they  present  and  of  Practice  No.  10  et  seq.  (15  R.  I.  634 

865  Volumes. 


6280.  CONTINUANCES  AND  6280. 

I.  {^Like  paragraph  I  in  Form  No.  6212.^ 

II.  That  I  cannot  safely  proceed  to  the  trial  of  this  cause  at  the 
present  term  of  this  court  without  the  testimony  of  George  Jones, 
who  resides  at  {Here  state  place  of  residence)  and  is  a  material  witness 
in  my  behalf,  and  is  now  absent. 

III.  Like  paragraph  IV  in  Form  No.  6272.) 

IV.  The  endeavors  which  have  been  used  to  procure  the  attend- 
ance or  depositions  of  the  ssLid  George /ones  are  as  follows:  {Here 
state  the  endeavors^ 

V.  {Like  paragraph  VI  in  Form  No.  6272,  adding)  and  the  grounds 
of  my  expectation  that  the  said  George  Jones  will  prove  the  said  facts 
are  that  {Here  state  grounds). 

VI.  That  I  know  of  no  other  person  by  whom  I  can  prove  the 
aforesaid  facts  which  I  expect  the  said  George  Jones  to  prove. 

VII.  {Like  paragraph  VIII  in  Form  No.  6272.) 

VIII.  That  I  expect  to  procure  the  attendance  or  deposition  of 
the  said  George  Jones  at  the  next  term  of  this  court,  because  {State 
reasons). 

IX.  {Like paragraph  X  in  Form  No.  6272. ) 

John  Doe  (or  Richard  Roe). 
Subscribed  and  sworn  to  before  me  at  Barrington,  in  the  county  of 
Bristol  ditid.  state  of  Rhode  Island,  this  tenth  day  of  March,  i898. 

George  L.  Cooke,  Notary  Public. 

Form  No.  6280.' 

The  State  of  South  Carolina,  )  t    *.u     /^      *    x  r- m 

r^       ^      c  r'l.    ^  '  v  In  the  Court  of  Common  Fleas. 

County  of  Chester.  •' 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

The  State  of  South  Carolina, 

County  of  Chester. 

Comes  now  John  Doe  (or  Richard  Roe)  and  on  oath  says: 

I.  {Like paragraph  I  in  Form  No.  6272.) 

II.  {Like  paragraph  II  in  Form  No.  6272.) 

III.  {Like paragraph  III  in  Form  No.  6272.) 

IV.  That  affiant  believes  the  said  George  J  ones,  \i  he  were  present, 
would  testify  to  the  following  facts  {Statement  of  facts). 

V.  That  affiant  has  used  due  diligence  to  procure  the  testimony  of 
the  said  George  Jones  in  that  he  caused  a  subpoena  to  be  issued  for 
the  saidy^^^j,  which  was  duly  served,  and  is  attached  hereto  and 
made  a  part  hereof,  together  with  the  sheriff's  return  of  service 
indorsed  thereon. 

et  seq.)   Consult  also  the  annotations  to  sary  degree  of  sickness  to  warrant  the 

Form  No.  6272,  supra.  motion."     Rules    of   Practice,    No.    17 

Absence  on  Account  of  Sickness.  —  "If  (15  R.  I.  635). 
the   continuance    be  asked  on  account         1.  South  Carolina. — This  affidavit   is 

of  the  sickness  of  a  party  or  witness,  it  drawn  under  the  provisions  of  Circuit 

must  be  accompanied  by  asworn  certifi-  Ct.  Rule  No.  27.     Consult  also  the  an- 

cate   of  a  practicing  physician,  in  good  notations  to  Form  No.  6272,  supra. 
standing,  of  the  fact,  kind,  and  neces- 

356  Volume  5. 


^  [  ss. 


6281.  AD  JO  URNMENTS.  6282. 

VI.  (^Like paragraph  VI  in  Form  No.  6272.) 

Via.  That  the  said  George  Jones  has  repeatedly  told  the  affiant 
that  he  would  testify  to  the  foregoing  facts  under  oath. 

VII.  That  the  same  facts  cannot  be  proved  by  any  other  person. 

VIII.  (^Like  paragraph  VIII  in  Form  No.  6272.) 

IX.  That  affiant  expects  to  procure  the  attendance  of  the  said 
George  Jones  as  a  witness  at  the  next  term  of  this  court. 

X.  That  the  affiant's  motion  for  a  continuance  is  not  intended  for 
delay,  but  is  made  solely  because  he  cannot  go  safely  to  trial  with- 
out the  testimony  above  set  forth, 

John  Doe  (or  Richard  Roe). 
Sworn  to  before  me  this  tenth  day  of  March,  i898. 
(seal)  Abraham  Kent.,  Magistrate. 

Form  No.  6281.' 

John  Doe      ) 

against       >• 

Richard  Roe.  ) 

I,  John  Doe  (or  Richard  Roe),  on  oath  depose  and  say: 

I.  (^Like  paragraph  I  in  Form  No.  6272.) 

II.  (^Like paragraph  II  in  Form  No.  6272.) 

III.  (Like paragraph  III  in  Form  No.  6272.) 

IV.  That  the  substance  of  the  testimony  I  expect  the  said  George 
Jones  to  give  is  as  follows  {Here  state  the  substance  of  the  testimony). 

John  Doe  (or  Richard  Roe). 
Washington  County,  ss. 

At  Montpelier,  in  said  county,  this  fifth  day  of  March,  i898,  per- 
sonally appeared  the   said  John  Doe   (or   Richard  Roe),  and  made 
oath  to  the  truth  of  the  foregoing  affidavit  by  him  subscribed. 
Before  me: 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6282.* 

Circuit  Court,  Milwaukee  County. 

John  Doe,  plaintiff,       \ 
against  >• 

Richard  Roe,  defendant.  ) 
State  of  Wisconsin,      ) 
Qo\xxi\.y  oi  Milwaukee. \ 

John  Doe  (or  Richard  Roe),  being  duly  sworn,  says: 

I.  {Like  paragraph  I  in  Form  No.  6272.) 

II.  {Like  paragraph  II  in  Form  No.  6277.) 

1.  Vermont.  —  Supreme  Ct.  Rule  No.        2.  Wisconsin.  —  The  provisions  regu- 

IX  provides   that  "  if  the   motion  (for  lating    continuances,    both    as   to   the 

continuance)  is  founded  on  the  absence  motion  and  affidavit  for  the  same,  are 

of  a  witness,  the  affidavit  shall   state  prescribed  by  Circuit  Ct.  Rule    No.  XX 

the  name  and  residence  of  the  witness,  (Sanb.   &  B.  Anno.   Stat.  Wis.,  §  2845, 

and  the  substance  of  the  testimony  ex-  note).    Consult  also  supra.   Form   No. 

pected    from    him."    Consult  also   the  6272,  and  notes  thereto, 
annotations  to  Form  No.  6272,  supra. 

357  Volume  5. 


6283.  CONTINUANCES  AND  6283. 

III.  {Like  paragraph  II  in  Form  No.  6375  or  paragraph  III  in 
Form  No.  6277.) 

IV.  {Like paragraph  III  in  Form  No.  6275.) 

V.  {Like  paragraph  IV  in  Form  No.  6275.) 

VI.  {Like  paragraph  V  in  Form  No.  6275.) 

VII.  That  this  deponent  expects  to  prove  by  the  said  George 
Jones  the  following  facts  {State  the  facts),^  and  that  the  grounds  of 
his  expectation  that  he  can  prove  the  foregoing  facts  by  the  said 
George  Jones  are  {State  grounds  of  expectation). 

VIII.  {Like paragraph  VI  in  Form  No.  6272.) 

IX.  That  no  other  evidence  is  at  hand  or  witness  in  attendance, 
or  known  to  this  deponent,  whose  testimony  could  have  been  pro- 
cured in  time,  upon  whom  this  deponent  can  safely  rely  to  prove  the 
particular  facts  above  stated,  which  this  deponent  expects  and 
believes  can  be  proved  by  the  said  George  Jones,  or  to  maintain  the 
issue  in  respect  thereto  on  the  part  of  this  deponent. 

X.  That  this  deponent  has  used  due  diligence  and  endeavors  for 
the  purpose  of  procuring  the  testimony  of  the  said  George  Jones  in 
that  this  deponent  {Here  state  the  endeavors  used).^ 

XI.  {Like  paragraph  VIII  in  Form  No.   6272). 

XII.  That  deponent  expects  and  believes  that  he  will  be  able  to 
procure  the  attendance  of  the  said  George  Jones  at  the  next  term  of 
this  court. 

XIII.  That  this  application  for  continuance  is  not  made  for  the 
purpose  of  delay  merely,  but  that  justice  may  be  done  and  a  fair 
and  impartial  trial  be  had  upon  the  merits. 

John  Doe  (or  Richard  Roe). 
State  of  Wisconsin,       ) 

r    SS 

County  oi  Milwaukee.  \ 

The  above  named  John  Doe  (or  Richard  Roe)  before  me  person- 
ally appeared  and  made  oath  that  the  foregoing  afifidavit  subscribed 
is  true.     On  th\s  fifth  day  of  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace 
in  and  for  Milwaukee  County,  Wisconsin. 

b.  Ppeeedents.3 

1.  Expectation  of  Proving.  —  In  Wins-  ton  Spa  Bank  v.  Marine  Bank,  i6  Wis. 
low  V.  Bradley,  15  Wis.  394,  the  absent     135. 

witness  was  a  defendant  in   the  suit,  8.  Kentucky. —  In    Morgan  v.    Com., 

and  it  was  held  that  the  affidavit  must  14    Bush    (Ky.)    106,     the     defendant 

"  disclose  fully  the  precise  facts  or  the  was   indicted    for    the  murder  of   one 

substance  of  the  testimony  expected  to  Best.     He    was    brought    to    trial    at 

be  proven  by  such  party "  and  a  state-  the    first    term    after   his    arrest    and 

ment  that  he  was  a  "  material  witness,"  commitment  to  jail,  and  on   the  call- 

and  that  the  facts  constituting  the  de-  ing   of   the   cause,   March  21,   1878,  to 

fense  were  within  his  personal  knowl-  which  day  it  had  been  postponed  when 

edge    was    not     sufficient.       See    also  first  called   on   March   18,  he  filed  his 

Ballston  Spa  Bank  v.  Marine  Bank,  16  affidavit  for  a  continuance  for  the  fol- 

Wis.   135.  lowing   among  other  reasons:     "'On 

2.  Due  Dib'gence Used. —  In  Andrews  z/.  the  ibth  day  of  March,  iS/.?,  he  had 
Elderkin,  24  Wis.  531,  the  continuance  Robert  Collins  summoned  as  a  witness 
was  refused  because  the  affidavit  did  in  this  case,  and  without  whom  he  can- 
not show  due  diligence.     See  also  Balls-  not  safely  go  into  trial;  said   Collins  \s 

358  Volume  5. 


6283. 


AD  JO  URNMENTS, 


6283. 


not  in  attendance  at  this  term  of  the 
court,  and  was  not  in  attendance  when 
the  case  was  called  on  Monday  last,  and 
on  that  day  affiant  obtained  an  attach- 
ment against  said  Collins,  both  to  this 
county  and  jEj//// county,  where  said  Col- 
lins resides.  The  attachment  to  Madison 
county  was  placed  in  the  hands  of  the 
sheriff  of  said  county  to  be  served,  and 
the  one  to  Estill  county  was  sent  by 
mail  to  the  sheriff  of  Estill  county,  but 
neither  of  said  attachments  has  been 
returned  executed.  He  can  prove  by 
/Robert  Collins  that  he  was  standing 
seven  or  eight  feet  from  Best  at  the 
time  he  was  killed,  and  that  he  knows 
that  the  defendant  Morgan  did  not  kill 
Best,  but  that  Best  was  shot  and  killed 
hy  Andrew  Conn;  that  w^itness  saw  Conn 
present  his  pistol  at  Best,  saw  the 
smoke  rise  from  the  pistol,  and  heard 
the  report,  and  at  the  report  of  the  pis- 
tol saw  Best  throw  up  his  hands,  reel  a 
few  steps  and  fall;  and  he  knows  that 
Best  was  killed  by  the  shot  fired  by 
Conn  and  not  by  the  accused.  Best 
threw  up  his  hands,  reeled  and  fell 
when  Conn  fired,  and  then  Conn  put  up 
his  pistol,  and,  after  the  excitement, 
stepped  behind  a  tree  and  reloaded  his 
pistol;  and  will  prove  that  at  the  time 
Best  was  shot  the  defendant  Morgan  and 
Jerry  Higgins  were  in  a  scuffle  over  a 
pistol.'  His  affidavit  also  stated  that 
he  could  prove  by  Mary  Sigman  that 
she  was  present  when  Best  was  killed, 
and  that  she  saw  a  man  run  round  the 
crowd  where  Best  was  standing  and 
level  his  pistol  and  fire,  when  Best  stag- 
gered a  few  steps  and  fell;  she  is  of 
opinion  that  the  man  that  fired  the  pis- 
tol was  either  Andrew  Conn  or  Andrew 
Cummins,  but  she  is  certain  it  was  not 
the  defendant  i^/i?rfa«.  He  stated  that 
he  obtained  an  attachment  against  this 
witness  also  on  the  first  day  of  the 
term,  and  placed  it  in  the  hands  of  the 
sheriff,  but  the  same  had  not  been  exe- 
cuted. He  swore  further  that  his  mo- 
tion for  a  continuance  was  not  made 
for  delay,  but  that  justice  might  be 
done  him,  and  a  fair  trial  of  his  case 
had."  It  was  held  by  the  court  of  ap- 
peals that  the  affidavit  disclosed  suffi- 
cient diligence,  that  the  evidence  was 
material,  and  that  it  was  reversible 
error  to  overrule  the  motion  for  con- 
tinuance. 

Nevada. —  In  Choate  v.  Bullion  Min. 
Co.,  I  Nev.  73,  the  tatement  of  the 
case  is  as  follows:  "The  affidavit  on 
motion  for  continuance  in  this  case 
shows  that  affiant  is  the  superintendent 


of  the  Bullion  Mining  Company,  the 
defendant;  that  defendant  could  not 
safely  proceed  to  trial  during  that  term 
of  the  court  because  of  the  absence  of 
one  M.  E.  Letts,  a  material  witness  on 
the  part  of  defendant;  that  Letts  left 
the  territory  of  Nevada  for  the  state  of 
California  in  the  month  of  November, 
1862,  and  left  said  state  in  March,  a.  d. 
1863;  that  immediately  after  arriving 
in  said  state  he,  the  said  Letts,  in  com- 
pany with  others,  started  to  Lower 
California  on  a  prospecting  tour,  and 
had  been  absent  ever  since;  that  im- 
mediately after  this  suit  was  com- 
menced the  affiant  wrote  to  different 
places  in  order  to  ascertain  his  where- 
abouts so  that  his  deposition  might  be 
taken,  but  that  all  his  efforts  to  ascer- 
tain his  whereabouts  had  failed;  that 
said  Letts  was  intending  to  return  to 
Virginia  City,  and  affiant  believed  that 
he  would  so  return  before  the  next 
term  of  the  court;  that  affiant  had  writ- 
ten to  every  place  where  said  Letts 
might  be  expected  to  get  his  letters, 
yet  that  he  had  received  no  answer; 
that  Lett's  business  is  such  that  affiant 
knew  he  would  return  before  many 
months.  The  affidavit  also  stated  the 
facts  which  defendant  expected  to 
prove  by  said  witness;  that  afBant  knew 
of  no  one  else  by  whom  the  same  facts 
could  be  proved,  and  that  his  testimony 
could  be  obtained  by  the  next  term  of 
the  court."  The  affidavit  was  held 
sufficient,  and  the  refusal  of  a  contin- 
uance reversible  error. 

Virginia —  The  Form.  — In  Welch  v. 
Com.,  90  Va.  319,  the  affidavit  for  con- 
tinuance, omitting  the  formal  parts, 
was  as  follows: 

''^ John  Welch,  the  defendant,  being 
first  duly  sworn,  says  that  upon  the 
trial  of  the  above  mentioned  indictment 
he  desires  to  introduce  Sidney  Hoff- 
heimer  as  a  witness  in  his  behalf;  that 
said  Hoffheimer  was  present  in  the  city 
of  Norfolk  at  the  time  of  the  occur- 
rences which  constitute  the  subject  of 
said  indictment;  that  he  is  a  material 
witness  for  the  defendant,  and  can 
prove  facts  not  within  the  knowledge 
of  any  other  witness  procurable  by  the 
defendant;  that  this  defendant  has 
caused  to  be  issued  subpoenas  for  the 
attendance  of  this  witness,  returnable 
to  theyfrj/  day  of  this  term  and  to  this 
day,  directed  to  the  sergeant  of  the  city 
of  Norfolk,  which  subpoenas  have  been 
returned  "Not  found";  that  the  said 
witness  has  not  been  kept  from  attend- 
ance by  the  solicitation  or  procurement 


359 


Volume  5. 


6283. 


CONTINUANCES  AND 


6283. 


Form  No.  6283. 

(Precedent  in  Blige  v.  State,  20  Fla.  743.)' 

In  the  Circuit  Court,  Sixth  Circuit  of  Florida^  in  and  for   Hills- 
borough County,  Fall  Term,  a.  d.  r%83: 
The  State  of  Florida,  ) 

vs.  V  Assault  with  intent  to  murder. 

William  Blige.         ) 
Now,  on  this  10th  day  of  October,  a.  d.  18^,?,  comes  the  defendant, 
William  Blige, "^  who  beingduly  sworn,  says  that  Thomas  Whitehead  Sind 
Nixon  Brown  are  material  witnessesfor  his  defense;  that  he  expects  to 


of  this  defendant,  or  by  any  connivance 
of  his,  and  that  he  has  used  every 
effort  in  his  power,  in  addition  to  the 
issuing  of  process  as  aforesaid,  to  se- 
cure his  attendance." 

It  was  held  reversible  error  to  refuse 
a  continuance  on  this  affidavit. 

For  other  cases  where  a  refusal  was 
held  to  constitute  reversible  error  see 
Anthony  v.  Lawhorne,  i  Leigh  (Va.)  i; 
Hook  V.  Nanny,  4  Hen.  &  M.(  Va.)  157; 
Higginbotham  v.  Chamberlayne,  4 
Munf.  (Va.)  547;  Vaught  v.  Rider,  83 
Va.  659;  Walton  v.  Com.,  32  Gratt. 
(Va.)  855;  Phillips  v.  Com.,  90  Va.  401; 
Carter  v.  Wharton,  82  Va.  264;  Myers 
V.  Trice,  86  Va.  835. 

Facts  to  be  Proved  and  Materiality 
Thereof.  —  See  Wormeley  z/.  Com.,  10 
Gratt.  (Va.)  658;  Harman  v.  Howe,  27 
Gratt.  (Va.)  676;  Harris  v.  Harris,  2 
Leigh  (Va.)   584.     See  also  supra,  note 

7,  P-  335  ^^  ^eq- 

No  Other  Witness  to  the  Same  Facts.  — 
See  Mull's  Case,  8  Gratt.  (Va.)  695. 
See  also  supra,  note  2,  p.  343. 

Diligence  to  Obtain  Testimony.  —  See 
Carter  v.  Wharton,  82  Va.  264,  and 
supra,  note  5,  p.  339. 

For  cases  showing  insufficient  dili- 
gence see  Deanes  v.  Scriba,  2  Call  (Va.) 
419;  Hurd  V.  Com.,  5  Leigh  (Va.)  715; 
Holtz'.  Com.,  2  Va.  Cas.  156;  Deford  v. 
Hayes,  6  Munf.  (Va.)  390;  Milstead  v. 
Redman,  3  Munf.  (Va.)  219;  Com. 
V.  Mister,  79  Va.  5;  Early  v.  Com.,  86 
Va.  921;  Richmond,  etc.,  R.  Co.  v. 
Humphreys,  90  Va.  425;  Norfolk,  etc., 
R.  Co.  V.  Shott,  92  Va.  34;  Baltimore, 
etc.,  R.  Co.  V.  Wightman,  29  Gratt.  (Va.) 
431;  Wormeley  v.  Com.,  10  Gratt.  (Va.) 
683. 

1.  Florida.  —  The  application  for  con- 
tinuance was  denied  and  the  supreme 
court  in  awarding  a  new  trial  said: 
"The  affidavit  upon  which  a  motion 
for  a  continuance  was  based  comes  up 
to  the  rule  as  laid  down  in  Harrell  v. 
Durrance,  9  Fla.  490,  and  in  Gladden  v. 


State,  12  Fla.  562.  The  application  is 
addressed  to  the  sound  discretion  of 
the  court,  and  ordinarily  such  discretion 
will  not  be  interfered  with  by  the  appel- 
late court.  But  when  the  court  can 
see  that  the  rights  of  the  party  may 
have  been  jeopardized  and  the  rule  in 
regard  to  the  application  had  been 
fully  complied  with,  and  there  had 
been  no  previous  delay,  and  especially 
when  the  application  is  made  on  the 
very  day  of  the  finding  of  the  indict- 
ment, this  court  will  control  such  dis- 
cretion. We  think  a  continuance 
should  have  been  granted."  {Citing 
McNealy  v.  State,  17  Fla.  198;  Sanford 
V.  Cloud,  17  Fla.  532;  Green  v.  King, 
17  Fla.  452;  State  v.  Wood,  68  Mo.  444; 
State  V.  Hagan,  22  Kan.  490.) 

In  Civil  Cases.  —  The  requisites  of  an 
affidavit  for  continuance  for  the  term 
in  a  civil  case  are  laid  down  in  Harrell 
V.  Durrance,  9  Fla.  500,  follozved  in 
Sanford  v.  Cloud,  17  Fla.  543,  and  are 
substantially  the  same  as  in  criminal 
cases.  See  Gladden  v.  State,  12  Fla. 
562;  Green  v.  King,  17  Fla.  452. 

For  a  form  of  affidavit  held  insuffi- 
cient see  Sanford  v.  Cloud,  17  Fla.  543, 
commented  on  in  Blige  v.  State,  20  Fla. 

743. 

In  Criminal  Cases.  —  In  Bryant  v. 
State,  34  Fla.  294,  the  court  said:  "  An 
affidavit  of  this  character,  on  account  of 
the  greater  temptation  to  delay,  should 
be  more  closely  scrutinized  in  a  criminal 
than  in  a  civil  case."  Citing  Gladden 
V.  State,  12  Fla.  562.  To  which  may 
be  added  Hall  v.  State,  35  Fla.  535,  and 
Ballard  v.  State,  31  Fla.  282. 

2.  Who  may  Make.  —  In  Sanford  v. 
Cloud,  17  Fla.  543,  the  affidavit  was 
made  by  defendant's  agent,  the  ground 
being  defendant's  absence,  and  that 
his  testimony  was  desired  on  his  own 
behalf.  Consult  also  annotations  to 
Form  No.  6272,  supra,  and  note  3, 
p.  317- 


860 


Volume  5. 


6283.  ADJOURNMENTS.  6283. 

prove  by  said  witnesses^  that  zboMt  fifteen  or  twenty  minutes  before 
the  difficulty  took  place  in  which  he  is  charged  with  assaulting  the 
said  Samuel  /.  Ingraham,  [that]  the  said  Ingraham  assaulted  the  de- 
fendant on  board  the  steamship  Lizzie  Henderson,  on  which  defend- 
ant was  employed,  cursed  and  abused  defendant,  threatened  his  life, 
and  attempted  to  throw  defendant  overboard,  and  was  prevented 
from  doing  so  by  one  of  the  witnesses,  and  that  this"  was  done  with- 
out any  sufficient  provocation  on  the  part  of  the  defendant;  that  as 
soon  as  the  bill  of  indictment  was  returned  against  defendant,  his 
counsel  filed  a  praecipe  for  said  witnesses  and  tendered  the  fees  for 
issuing  subpoenas;^  that  said  witnesses  are  both  employed  on  board 
the  said  steamship  Lizzie  Henderson,  which  steamship  had  sailed  be- 
fore the  finding  of  said  bill  of  indictment;  and  affiant  is  informed 
and  believes  that  said  witnesses  could  not  be  gotten  here  during  the 
present  term  of  the  court;  that  they  are  both  residents  of  this 
county,  and  affiant  expects  to  have  them  present  at  the  next  term 
of  court;  that  they  are  not  absent  by  his  consent  or  procurement, 
directly  or  indirectly  given  ;3  that  he  cannot  safely  go  to  trial  with- 
out their  testimony,  or  that  of  at  least  one  of  them;  that  he  has  no 
other  witness  by  whom  he  can  prove  these  facts,  and  that  this  appli- 
cation is  not  made  for  delay  only  ;*  wherefore  a  continuance  is  prayed, 

[  William  Blige. 
Sworn  to  and  subscribed  before  me,  this  tenth  day  of  October,  a.  d. 

(seal)  Calvin  Clark^  Clerk  of  the  Circuit  Court.] ^ 


1.  statement  of  Expected  Testimony  and  that  affiant  exercised  any  due  diligence 
Materiality  Thereof . — In  Hall  z^.  State,  35  in  having  the  subpcena  issued  and 
Fla.  534,  the  affidavit  stated  that  the  delivered  to  the  proper  officer  in  time 
affiantexpected  to  prove  certain  threats,  to  have  it  served  before  the  court  met." 
but  did  not  expressly  state  that  he  Consult  also  annotations  to  Form  No. 
expected  to  prove  them  by  the  absent  6272,  supra. 

witnesses.    In  pronouncing  the  affidavit  Date    of    Issuance    of    Subpoena. —  It 

insufficient    the    supreme    court    took  would  be  advisable  to  state  upon  what 

notice  of  the  circumstance  that  it  was  date  the  subpoena  was  issued,  for  upon 

"  not   even  stated  that  the  absent  wit-  close  scrutiny  by  the  court  an  omission 

nesses  would  swear  to  such  threats."  in  that  particular  might  seriously  affect 

Consult  also  annotations  to  Form  No.  the  application.     See  Gladden  v.  State, 

6272,  supra.  12  Fla.  571. 

2.  Statement  of  Diligence  Used.  —  In  3.  Witness  Not  Absent  by  Consent,  etc. — 
Bryant  v.  State,  34  Fla.  295,  the  court  In  Bryant  v.  State,  34  Fla.  291,  the  affi- 
criticised  the  affidavit  because,  although  davit  was  held  insufficient  because  it 
it  stated  that  a  subpoena  had  been  is-  did  not  allege  that  the  witness  was  ab- 
sued  for  the  witnesses  named,  it  con-  sent  without  the  consent  of  the  appli- 
tained  no  statement  of  the  inability  of  cant  directly  or  indirectly  given.  Con- 
the  sheriff  to  find  them.  suit    also    annotations    to    Form    No. 

In  Hall  V.  State,  35  Fla.  534,  the  affi-  6272,  supra. 

davit  was  held  insufficient,  the  court  say-  4.  Application  Not  Hade  for  Delay. — 

ing:   "  The  affidavit  made  when  the  trial  In  adverse  comments  upon  an  affidavit 

was  had  states  that  affiant  had  caused  a  in    Ballard  v.  State,  31    Fla.    284,  the 

subpoena   to  issue  for  absent  witnesses  court  said:  "  It  is  not  improper  to  call 

named,  but  the  subpoena  had  not  been  attention  to  the  fact  that  the  affidavit 

sent  by  the  officer;  and  also  that '  some  of  does  not  even  state  that  the  application 

said    summonses   have   been   returned  for   continuance    was   not   '  made   for 

not   found.'     When    the   subpoena  was  delay  only.'  "     See  also  note  7,  p.  347. 

issued  is  not  stated,  nor  does  it  appear  5.  The  court  said  that  "This affidavit 

361  Volume  5. 


6284. 


CONTINUANCES  AND 


6284. 


Form  No.  6284.' 

(Precedent  in  Cunneen  v.  State,  95  Ga.  330.)' 
IThe  State^f^Georgia  ^  j^  ^^^  ^.^^  ^^^^^  ^^  Savannah,  Georgia, 

r  7.     r  r-  t  November  Term,  i89A. 

John  J.  Lunneen.      )  '        ^ 

Georgia,  Chatham  County,  ss. 

John  J.  Cunneen^  being  duly  sworn,  upon  his  oath  deposes  and 
says,  that  he  is  the  defendant  in  the  above  entitled  cause;]*  that 
W.  J.  O' Dell  is  a  witness  in  behalf  of  defendant,  and  is  absent;  that 
he  has  been  subpoenaed;*  that  he  resides  in  the  county  where  the 
above  case  is  pending;  that  his  testimony  is  material;^  that  such 
witness  is  not  absent  by  the  permission,  directly  or  indirectly,  of  this 
applicant;^  that  he  expects  that  he  will  be  able  to  procure  the  testi- 
mony of  such  witness  at  the  next  term  of  the  court  ;^  that  the 
application  for  a  continuance  is  not  made  for  the  purpose  of  delay,' 
but  to  enable  him  to  procure  the  testimony  of  such  absent  witness; 
that  there  is  no  other  witness  by  whom  he  can  prove  the  same  facts  ;^*' 


was  subscribed  and  sworn  to  before  the 
clerk  of  the  court  on  the  loth  day  of 
October,  1883." 

1.  Georgia.  —  3  Ga.  Code  (1895),  § 
963;  2  Ga.  Code  (1895),  §  5129,  pro- 
vides that  "it  must  be  shown  to  the 
court,"  etc.,  but  does  not  expressly  re- 
quire an  affidavit,  though  in  practice 
the  application  is  commonly  supported 
by  affidavit.  The  showing  may  be  by 
parol.  See  Glover  v.  State,  89  Ga.  392; 
Williams  v.  State,  69  Ga.  24;  Huffman 
V.  State,  95  Ga.  469. 

A  counter-showing  to  motion  for  con- 
tinuance is  allowed  in  all  civil  and 
criminal  cases  in  the  discretion  of  the 
presiding  judge.  Williams  v.  Stoll,  69 
Ga.  11;  Waldrup  v.  Maxwell,  84  Ga.  113; 
Horn  V.  State,  62  Ga.  362.  And  particu- 
larly, as  to  the  proper  scope  of  a  coun- 
ter-showing, see  Johnson  v.  State,  65 
Ga.  98;  Pyburn  v.  State,  84  Ga.  195. 
See  also  Form  No.  6308,  infra. 

2.  For  another  available  precedent 
see  Johnson  v.  Martin,  28  Ga.  184. 

3.  Who  may  Make.  —  In  Fogarty  v. 
State,  80  Ga.  450,  it  was  held  that  the 
affidavit  should  be  made  by  the  party 
himself  unless  some  reason  is  shown 
why  he  cannot  make  it.  See  also  2  Ga. 
Code  (1895),  §  4417,  and  supra,  note  3, 
p.  317,  note  I,  p.  332. 

4.  The  words  and  figures  within  [  ] 
are  not  found  in  the  reported  case,  but 
are  added  to  make  the  form  com- 
plete. 

5.  Diligence  Used.  —  It  must  be  shown 
.  "  that   he   (witness)   has  been  subpoe- 
naed."    3  Ga.  Code  (1895),  §  962;  2  Ga. 


Code  (1895),  §  5129.  But  in  Pyburn  v. 
State,  84  Ga.  193,  where  the  defendant 
showed  that  he  had  caused  a  subpoena 
to  be  put  in  the  hands  of  an  officer  for 
a  material  witness  who  lived  within 
the  jurisdiction  of  the  court  and  was 
temporarily  absent  from  home  in  an- 
other state,  the  refusal  of  the  con- 
tinuance was  held  to  be  reversible 
error.  As  to  the  diligence  in  procuring 
and  serving  a  subpoena,  see  Jones  v. 
Rome  Grocery  Co.,  (Ga.  1896)  24  S.  E. 
Rep.  959;  Glover  v.  State,  89  Ga.  391; 
Harris  v.  State,  (Ga.  1896)  24  S.  E. 
Rep.  145;  Thomas  v.  State,  94  Ga.  484; 
Smith  V.  State,  97  Ga.  352.  Consult 
also  annotations  to  Form  No.  6272, 
supra. 

6.  Materiality  of  Evidence.  —  If  it  ap- 
pears that  the  expected  evidence  is 
immaterial,  continuance  is  properly 
denied.  Robson  v.  State,  83  Ga.  169. 
Consult  also  annotations  to  Form  No. 
6272,  supra. 

7.  Absence  without  permission  of  appli- 
cant must  be  shown.  Collins  v.  State, 
78  Ga.  87.  Consult  also  annotations 
to  Form  No.  6272,  supra. 

8.  That  applicant  expects  to  procure  the 
attendance  of  the  witness  at  the  next 
term  must  be  shown.  Collins  v.  State, 
78  Ga.  87.  Consult  also  annotations 
to  Form  No.  6272,  supra. 

9.  That  application  is  not  made  for 
delay  must  be  shown.  Farmer  v. 
State,  95  Ga.  498.  Consult  also  anno- 
tations to  Form  No.  6272,  supra. 

10.  Averment  of  inability  to  prove  the 
same  facts  by  other  witnesses  present 


862 


Volume  5. 


6285.  ADJOURNMENTS.  6285. 

V 

and  that  deponent  expects  to  prove  by  said  absent  witness  that^ 
deponent  did  not  keep,  maintain  or  carry  on  a  scheme  for  the  hazard- 
ing of  money  or  other  valuable  thing, -called  a  policy-lottery;  that 
the  said  witness  has  been  tried  and  found  guilty  of  carrying  on  the 
selfsame  scheme  or  device  for  which  this  defendant  has  been  indicted 
or  accused;  that  said  witness  has  full  knowledge  of  the  facts  and  all 
attending  circumstances;  that  he  knows  that  the  said'scheme  was  not 
and  is  not  kept,  maintained  or  carried  on  by  this  defendant;  that  said 
witness  is  expected  to  testify  that  this  defendant  never  has  had  any 
connection  with  the  keeping,  carrying  on  or  maintaining  said  scheme 
or  device. 

Defendant  further  says  that  he  is  informed  and  believes  that  the 
reason  of  the  absence  of  said  witness  is  on  account  of  [his]  illness, 
and  appends  as  part  of  this  affidavit  the  certificate  of  Dr.  R.  J.  Nunn. 
Defendant  does  swear  that  said  witness  was  sick,  and  that  he  is  absent 
from  the  city.^ 

[John  J.  Cunneen. 

Sworn  and  subscribed  in  open  court  November  IJ^h,  i85^. 

Calvin  Clark^  Clerk.  ]3 

Form  No.  6285. 

(Precedent  in  Wade  v.  Halligan,  16  111.  507.)* 

[State  of  Illinois^  \ 

La  Salle  Circuit  Court.  \ 

Thotnas  /.  Wade   ) 

ads.  V  May  Term,  iSSJ^ 

Patrick  Halligan.  ) 

State  of  Illinois,  )       -i    . 
Za  Az//<?  County,  f      J 

is  not  required  by  the  Georgia  code;  4.  This  was  a  proceeding  by  a  land- 
nevertheless,  the  courts  hold  it  to  be  lord  against  his  tenant  by  distress.  It 
necessary.  Anderson  v.  State,  72  Ga.  was  held  that  the  court  erred  in  refus- 
100.  See  also  Huffman  v.  State,  95  Ga.  ing  a  continuance  on  this  affidavit. 
469.  Consult  also  annotations  to  Form  Other  Precedents.  —  In  Searls  z/.  Mun- 
No.  6272,  supra.  son,  17  111.  558,  the  aflSdavit  for  continu- 

1.  Facts  expected  to  be  proved  by  wit-  ance,  omitting  the  formal  parts,  is  as 
ness  must  be  stated.  3  Ga.  Code  (1895),  follows:  ^'■William  S.  Sear  Is,  oi  said 
§  962;  2  Ga.  Code  (1895),  §  5129.  county,  being  duly  sworn,  doth  depose 

Consult   also   annotations   to    Form  and  say,  that  he  is  the  defendant  in  the 

No.  6272,  supra.  above   entitled  cause;   that  he  cannot 

2.  Certificate  of  Physician.  —  In  the  now  safely  proceed  to  the  trial  of  said 
statement  of  the  case  it  is  said  "  at-  cause  on  account  of  the  absence  from 
tached  to  this  affidavit  was  a  statement  said  county  oi  one  Jeremiah  Thorn,  who 
signed  by  R.  J.  Nunn,  M.  D.,  to  the  is  a  material  witness  for  said  defendant, 
effect  that  *  W.  J.  O'Dell  is  ill  with  upon  ,the  trial  of  said  cause,  and  who 
rheumatism  and  is  out  of  the  state  for  resides  in  the  state  of  IVisconsin;  that 
treatment.'  This  was  dated  two  days  the  said  witness  left  IVaukegan  last 
before  the  date  of  defendant's  affidavit,  night  for  his  home  in  IVisconsin,  where 
and  does  not  appear  to  have  been  he  was  called  without  any  notice 
sworn  to."  sufficient   to  enable   this    deponent   to 

As  to  the  certificate  of  physicians,  see  take  his  deposition,  on  account  of  sick- 
Form  No.  6305,  infra.  ness    in     his    family;     and    that    this 

3.  The  words  and  figures  within  [  ]  deponent  expects  and  verily  believes 
are  not  in  the  reported  case,  but  are  he  shall  be  able  to  prove  by  said  wit- 
added  to  make  the  form  complete.  ness  that   this  deponent   paid   to  said 

363  Volume  5. 


6285. 


CONTINUANCES  AND 


6285. 


Thomas  J.  Wade^  being  first  duly  sworn,  saith  on  oath,  that  Conrad 
Birkell,  T.  D.  Brewster^  and  C.  A.  Holmes^  and  John  Hoffman^  and 
Henry  Fessler,  who  now  reside  in  La  Salle  county,  Illinois,^  are  mate- 


Francis  F.  Munson  the  sum  of  two  hun- 
dred dollars,  to  apply  upon  the  note 
sued  upon  in  this  case,  and  that  said 
Munson  then  agreed  to  indorse  it  upon 
the  note  sued  upon  in  this  case,  which 
said  Munson  has  not  done.  And  this 
deponent  further  says,  that  said  two 
hundred  dollars  form  a  good  and  valid 
set-off  to  said  plaintiff's  cause  of  action; 
was  paid  previous  to  the  commence- 
ment of  this  suit,  and  that  he  does  not 
now  know  of  any  other  person  by 
whom  this  deponent  can  prove  the 
same  facts.  And  further,  that  this 
deponent  was  ready  for  trial  of  said 
cause  yesterday,  at  which  time  said 
witness  could  be  had,  but  that  he  is  not 
now,  for  the  reason  that  said  witness 
has  gone  out  of  the  state,  and  out  of  the 
reach  of  this  deponent.  And  further, 
that  said  witness  was  yesterday  in 
attendance  on  this  court,  at  the  request 
of  this  deponent,  as  a  witness  in  this 
cause,  and  that  this  deponent  did  not 
know  that  said  witness  was  going 
away  until  he  had  started  on  his  way, 
and  when  it  was  too  late  for  this 
deponent  to  get  a  subpoena  for  said 
witness,  and  that  said  witness  was  sent 
for  on  account  of  the  sickness  of  his 
family;  and  that  this  deponent  verily 
believes  that  he  can  produce  said  wit- 
ness at  the  next  term  of  this  court,  as  a 
witness  herein;  and  that  said  sum  of /wc? 
hundred  dollars  is  over  and  above  any 
and  all  sums  indorsed  upon  said  note; 
and  that  this  application  is  not  made  for 
delay,  but  that  justice  be  done;  and 
that  this  deponent  has  used  due  dili- 
gence and  every  manner  to  be  ready 
for  a  trial  of  this  cause  at  this  term  of 
said  court,  and  the  not  being  ready  is 
not  his  fault."  In  this  case  the  court 
held  that  this  "  affidavit  was  sufficient 
in  every  material  part,  and  the  cause 
should  have  been  continued." 

In  Adams  v.  Colton,  3  111.  72,  an  ac- 
tion of  assumpsit  in  which  the  defend- 
ant pleaded  general  issue  with  notice 
of  set-off,  it  was  held  that  the  affidavit 
was  sufficient,  which  was,  omitting  the 
formal  parts,  as  follows:  "  R.  E.  W. 
Adams,  being  duly  sworn,  on  oath, 
says,  that  Joel  Jenks  is  an  important 
witness,  on  the  part  of  the  above 
defendant,  in  the  trial  of  the  above 
cause,  and  that  he  cannot  safely  pro- 
ceed  to   trial    without   his    testimony; 


and  that  he  expects  to  prove  by  said 
Jenks  that  said  plaintiff  was  to  give 
said  defendant  %i^o  for  one-half  of  the 
claim  mentioned  in  said  defendant's 
account  of  set-off;  and  this  deponent 
further  says  that  a  subpoena  was  issued 
to  the  sheriff  of  De  Kalb  county,  in 
which  y>«^j  had  formerly  been  resid- 
ing, and  this  deponent  is  now  informed 
by  the  coroner  of  said  county  that 
there  is  no  sheriff  in  said  county,  and 
that  he,  said  coroner,  received  the  said 
subpoena  and  made  search  for  said 
Jenks,  but  could  not  find  him,  he  hav- 
ing removed  from  said  county,  which 
was  unknown  to  said  deponent.  And 
this  deponent  says  he  knows  of  no 
person  whose  attendance  can  be  pro- 
cured at  this  term  of  the  court  by  whom 
he  can  prove  said  facts;  and  this  de- 
ponent further  says,  that  he  expects 
to  be  able  to  procure  his  attendance 
at  the  next  term.  And  this  applica- 
tion is  not  made  for  delay,  but  that 
justice  may  be  done." 

For  other  forms  on  which  there  was 
no  direct  ruling  by  the  supreme  court, 
but  which  were  probably  sufficient,  see 
Fulton  County  v.  Mississippi,  etc.,  R. 
Co.,  21  111.  349;  Graff  z/.  Brown,  85  111.  91; 
Schultz  V.  Plankinton  Bank,  141  111. 
118. 

1.  Who  may  Make  AfELdavit. — ' '  The  mo- 
tion shall  be  grounded  on  the  affidavit  of 
the  party  so  applying  or  his  authorized 
agent,"  Starr  &  C.  Anno.  Stat.  111. 
(1896),  p.   3036,  par.    43  (Prac.    Act,  c. 

1 10.  I  43). 

The  motion  may  be  supported  by  the 
affidavit  of  the  party's  attorney.  Lock- 
hart  V.  Wolf,  82  111.  38,  where  the  court 
said    that    McCreary  v.    Newberry,  25 

111.  496,  does  not  decide  that  the  affi- 
davit is  objectionable  if  made  by  the 
attorney. 

A  motion  supported  only  by  the  affi- 
davit of  one  who  is  not  a  party  to  the 
suit  nor  his  authorized  agent  will  be 
overruled.  School  Dist.  No.  2, 'etc.,  v. 
Hentz,  57  111.  App    648. 

2.  Name  and  Eesidence  of  Witness. — 
The  affidavit  must  state  the  place  of 
residence  of  the  witness,  or  if  that  is 
not  known  it  must  show  that  due  dili- 
gence has  been  used  to  ascertain  the 
same,  and  that  if  further  time  is  given 
his  place  of  residence  can  be  ascer- 
tained.    Starr   &   C.    Anno.    Stat.    111. 


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AD  JO  URNMENTS. 


6285. 


rial  witnesses  for  affiant  on  the  trial  of  this  cause,  and  who  have 
each  been  duly  subpoenaed  to  attend  this  court,  as  witnesses,  for 
affiant  in  this  case.^     Affiant  expects  and  believes  he  can  prove  by 


(1896),  p.  3036,  par.  43  (Prac.  Act,  c. 
no,  §  43).  Rev.  Stat.  111.  of  1845,  p. 
4' 5.  ^  13.  required  that  the  name  of 
the  witness  should  be  stated  as  well  as 
his  residence. 

The  aflSdavit  must  state  the  residence 
of  the  witness  either  positively  or  by 
fair  inference.  "  This  is  indispensable 
as  connected  with  his  identification 
and  diligence  in  obtaining  his  attend- 
ance."    Lee  V.  Quirk,  20  III.  395. 

In  Trask  v.  People,  151  111.  527,  the 
court  said:  "The  affidavit  fails  to 
state  the  residence  of  the  witnesses,  as 
required  by  statute,  and  on  account 
of  this  defect,  if  for  no  other,  the  court 
was  justified  in  overruling  it." 

In  Searls  v.  Munson,  17  111.  55S,  the 
court  said:  "  The  name  and  residence 
of  witness  are  given  sufficiently,  and  the 
facts  expected  to  be  shown  by  him  are 
material  and  important  under  the 
issues." 

The  motion  is  properly  denied  if  the 
residence  of  the  absent  witness  is  un- 
known and  there  is  no  showing  that  if 
further  time  were  given  it  could  be 
ascertained,  Heitschmidt  v.  McAlpine, 
59  111.  App.  232.  See  also  Stevenson  v. 
Sherwood,  22  111.  239,  where  sufficient 
diligence  had  not  been  used  to  ascer- 
tain the  whereabouts  of  the  absent  wit- 
ness, who  lived  in  another  state,  so 
that  his  deposition  could  be  taken. 

An  affidavit  giving  neither  the  name 
nor  residence  of  the  witness  was 
held  insufficient  in  Ilett  v.  Collins,  102 
111.  405. 

For  a  sufficient  affidavit,  where  the 
name  and  residence  were  unknown, 
see  Form  No.  6286. 

1.  Averment  of  Diligence.  —  The  affi- 
davit must  show  "that  due  diligence 
has  been  used  to  obtain  such  testimony 
or  the  want  of  time  to  obtain  it."  Starr 
&  C.  Anno.  Stat.  111.  (1896),  p.  3036, 
par.  43  (Prac.  Act,  c.  no,  §  43). 

In  the  case  which  furnished  the 
precedent  in  the  text  the  court  said: 
"We  deem  the  diligence  set  forth 
sufficient.  Affidavits  should  not  be 
required  to  be  burdensomely  minute 
in  anticipating  and  negativing  every 
possible  contingency." 

What  constitutes  dLlligence  necessarily 
depends  on  a  variety  of  circumstances, 
which  must  be  sufficient  to  satisfy  the 
court  that  reasonable  efforts  have  been 


used.  Eames  v.  Hennessy,  22  111.  631; 
Shook  V.  Thomas,  21  111.  89,  both  cases 
holding  also  that  "  on  a  first  applica- 
tion a  less  degree  ot  diligence  would 
satisfy  the  court  than  on  a  second  or 
third  application  ";  and  in  the  report  of 
the  case  last  cited  will  be  found  the 
substance  of  an  affidavit  which  failed 
to  satisfy  the  legal  requirements. 

Where  a  party  is  sued  without  per- 
sonal service  of  process  and  has  no 
actual  notice  of  the  suit,  the  rule  of 
diligence  is  materially  relaxed.  Lock- 
hart  V.  Wolf,  82  111.  38.  where  the 
judgment  was  reversed  for  the  denial  of 
a  continuance. 

"  It  does  not  avail  the  party  any- 
thing that  the  witnesses  were  written  or 
telegraphed  to  be  present  at  the  trial. 
The  law  has  provided  a  different  mode 
for  procuring  their  depositions  or  their 
attendance  and  it  must  be  followed." 
Quincy  Whig  Co.  v.  Tillson,  67  111.  353. 

In  Trask  z/.  People,  151  111.  527,  the 
court  said:  "  The  affidavit  fails  to  show 
any  effort  to  subpoena  the  witness  until 
the  day  before  the  cause  was  called  for 
trial,  and  even  then  no  subpcEnas  were 
taken  out.  This  was  not  such  diligence 
as  required  by  the  statute."  / 

In  Searls  v.  Munson,  17  111.  558,  the 
court  said:  "  It  is  true  parties  neglect- 
ing to  subpoena  witnesses  do  so  at 
their  risk  of  nonattendance.  But  when 
the  witnesses  actually  attend  upon 
request  the  party's  diligence  is  as 
complete  as  if  they  attended  upon  sub- 
poena. They  may  or  may  not  be  lia- 
ble to  attachment  for  not  remaining, 
but  no  court  would  attach  a  witness 
leaving  upon  sudden  sickness  in  his 
family,  as  is  shown  here,  and  so  the 
party's  certain  and  complete  surprise 
is  shown  by  the  departure." 

For  the  substance  of  an  affidavit 
held  to  show  sufficient  diligence  to  pro- 
cure the  deposition  of  a  witness  resid- 
ing in  another  state  see  Morgan  v. 
Raymond,  38  111.  451. 

For  the  form  of  an  affidavit  held 
sufficient  in  every  particular,  and  es- 
pecially on  the  point  of  materiality 
of  the  expected  testimony  and  want  of 
sufficient  time  to  take  the  deposition  of 
the  witness,  see  Lee  v.  Bates,  2  111.  529. 

Averments  of  diligence  held  in- 
sufficient are  quoted  verbatim  in  Cook 
V.  Norwood,  106  111.  560. 


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Volume  5. 


6285.  CONTINUANCES  AND  6285. 

said  Birkell,  that  after  the  premises,  for  the  rent  of  which  the  dis- 
tress in  this  case  was  made,  were  leased  to  this  affiant  by  said  plain- 
tiff, said  plaintiff  leased  a  room  in  said  building  to  said  Birkell,  to  be 
used  as  a  place  for  the  retailing  of  beer  and  spirituous  liquor,  com- 
monly called  a  grocery.  Affiant  saith  that  the  premises  leased  by 
said  plaintiff  to  affiant,  to  recover  the  rent  of  which  the  distress  in 
this  case  was  made,  were  leased  to  affiant  to  be  used  as  a  hotel,  and 
were  so  used  by  affiant.  Affiant  expects  to  prove  by  said  Birkell, 
that  the  room  leased  to  him  for  the  purpose  aforesaid,  was  in  the 
same  hotel  building,  occupied  as  aforesaid  by  affiant,  and  directly 
under  the  dining  room  of  said  hotel  occupied  by  affiant.  Affiant 
expects  and  believes  that  he  can  prove  by  said  jBirkell,  that  said  room 
was  rented  to  said  Birkell  by  plaintiff,  for  the  purpose  aforesaid,  con- 
trary to  the  wish,  and  in  despite  of  the  remonstrance  of  affiant  made 
to  said  plaintiff  before  said  room  was  rented  by  said  plaintiff  to  said 
Birkell^  and  that  said  Birkell  occupied  said  room  by  the  leave  of  the 
said  plaintiff  during  the  whole  quarter  in  which  the  rent,  now  sought 
to  be  recovered  by  the  plaintiff  in  this  case,  is  alleged  to  have 
accrued.  Affiant  expects  and  believes  that  he  can  prove  by  said 
John  Hoff77ian,  Henry  Fessler,  and  C.  A.  Holmes,  each  of  them,  that 
the  use  of  said  room,  so  rented  and  occupied  by  said  Birkell,  in  said 
City  Hotel,  for  the  purpose  of  being  used  as  a  place  for  the  retail  of 
spirituous  liquor  and  beer,  commonly  called  a  grocery,  was  neces- 
sarily, as  said  premises  were  situated,  a  very  great  injury  to  any 
person  occupying  the  remainder  of  said  premises  for  hotel  purposes, 
or  that  part  thereof  occupied  by  affiant  for  a  hotel,  and  that  the 
value  of  said  premises,  occupied  by  affiant,  was  thereby  depreciated, 
at  least  to  the  amount  of  one  hundred  dollars  per  quarter.  Affiant 
saith,  that  under  the  lease  upon  which  the  rent  accrued  which  the 
plaintiff  now  seeks  to  recover,  affiant  occupied  said  premises,  men- 
tioned in  said  lease,  over  t7vo  years  as  a  hotel,  and  he  expects  to  prove 
by  said  Birkell,  that  said  Birkell  occupied  said  room  in  said  premises 
during  said  time,  for  at  least  six  months,  including  the  quarter  for 
which  rent  is  sought  to  be  recovered  in  this  suit;  and  by  said  Hoffman, 
Fessler  and  Holmes,  that  the  use  of  said  premises  occupied  by  affiant  was 
lessened  in  value  at  least  two  hundred  doWdiTS  thereby;  and  he  expects 
to  prove  by  said  last  named  witnesses,  that  the  business  of  selling  liquor 
and  beer  by  retail,  in  that  room,  was  necessarily  very  injurious  to  the 
business  of  hotel  keeping  carried  on  by  affiant  in  his  business  of 
hotel  keeping  in  said  premises,  by  keeping  customers  away  from 
affiant,  and  seriously  lessening  the  profits  of  his  said  business.    Affiant 

For  the  form  of  an  afSdavit  held  in-  Richards    Iron   Works  v.   Glennon,  71 

sufficient  for  want  of  diligence  to  take  III.    11;   Birks  v.   Houston,   63   111.  77; 

the  testimony  of  the  absent  witness  by  Eames  v.  Hennessy,  22  111.  631;  Cook  v. 

deposition,  the  witness  residing  out  of  Norwood,  io6  111.  558;  Walker  v.  Doug- 

the   county,    and   a   lack    of    ordinary  las,  70  111.  445;  Fisher  v.  Greene,  95  111. 

effort    to    obtain    his    attendance,   the  94;  Quincy  Whig  Co.  v.  Tillson,  67  111. 

cause  having  been  once  continued  for  351;    Ide   v.  Gilbert,    62   111.  App.  524; 

absence  of    another  witness,   see   Mc-  Anheuser-Busch     Brewing    Assoc,    v. 

Connel  7).  Johnson,  3  111.  524.  Hutmacher,  127  111.  652;  Northwestern 

For  cases  holding  that  there  was  an  Benev.,  etc..  Aid  Assoc,  v.  Primm,  124 

insufficient  showing   of    diligence   see  111.  100;  Coffey  v.  Fosselman,  72  111.  69. 

366  Volume  5. 


6285. 


AD  JO  URNMENTS. 


6285. 


expects  and  believes  that  he  can  prove  by  said  T.  D.  Brewster,  that 
after  affiant  rented  the  said  City  Hotel,  for  which  rent  is  now  sought 
to  be  recovered  by  the  plaintiff  and  while  affiant  occupied  the  said 
premises,  said  plaintiff  authorized  and  permitted  \h^  Chicago  and  Rock 
Island  Railroad  tQ  enter  and  take  possession  of  a  part  of  said  premises, 
and  received  the  sum  of  four  hundred  dollars  for  his  damages 
therefor  from  said  company;  and  that  the  said  company,  a 
few  days  previous  to  the  commencement  of  the  quarter  for 
which  rent  is  claimed  in  this  case,  did  take  possession  of  said 
portion  of  said  premises,  by  virtue  of  an  agreement  with  said 
plaintiff,  and  tore  out  one  side  of  the  stone  barn  belonging  to  the 
premises  rented  as  aforesaid  by  affiant  from  plaintiff,  and  have  since 
held  permanently  a  portion  of  said  premises,  including  a  portion  of 
the  barn  on  said  premises;^  that  he  expects  to  prove  by  other  wit- 


1.  Statement  of  Expected  Testimony  and 
Materiality  Thereof. —  The  affidavit  must 
show  "  what  particular  fact  or  facts 
the  party  expects  to  prove  by  such 
evidence."  Starr  &  C.  Anno.  Stat.  111. 
(1896),  p.  3036,  par.  43  (Practice  Act,  c. 
no,  §  43).  Consult  also  annotations 
to  Form  No.  6272,  supra. 

"  Should  the  court  be  satisfied  that 
such  evidence  would  not  be  material  on 
the  trial  of  the  cause,  *  *  *  the  case 
shall  not  be  continued."  Starr  &  C. 
Anno.  Stat.  111.  (1896),  p.  3040,  par.  44 
(Prac.  Act,  c.  no,  §  44). 

The  affidavit  must  state  the  substance 
of  the  testimony  sought.  Ilett  v.  Col- 
lins, 102  111.  405. 

The  affidavit  must  state  facts  from 
which  the  court  can  determine  whether 
the  presence  of  the  absent  witness  will 
be  of  any  benefit  to  the  party.  A  state- 
ment of  mere  conclusions  is  not  enough. 
Willard  v.  Petitt,  54  111.  App.  257,  an  ac- 
tion for  malicious  prosecution,  wherein 
the  defendant's  affidavit  merely  stated 
that  he  expected  to  prove  by  the  absent 
witness  "  that  the  grievances  com- 
plained of  *  *  *  were  justifiable  and 
were  committed,  if  at  all,  upon  reason- 
able and  justifiable  grounds."  See  also 
Meyer  z/.  People,  156  111.  126. 

It  cannot  be  assumed  that  the  wit- 
ness if  present  will  testify  to  anything 
more  than  is  stated  in  the  affidavit,  and 
it  must  be  presumed  that  the  state- 
ments in  the  affidavit  are  as  favorable 
to  the  applicant  as  the  real  facts  will 
warrant;  and  therefore,  as  in  the  case 
of  a  pleading,  all  intendments,  so  far 
as  the  affidavit  is  equivocal  or  uncer- 
tain, must  be  taken  against  it.  Slate 
V.  Eisenmeyer,  94  111.  loi. 

In  Moody  v.  People,  20  111.  317,  where 
the  affidavit  is  set  forth  verbatim,  the 


court  said:  "  It  is  believed  that,  in  our 
practice,  the  affidavit  has  always  speci- 
fically stated  the  particular  fact  or  facts 
which  can  be  proven,  and  in  what  way 
they  are  material,  and  that,  failing  to 
do  so,  an  affidavit  was  never  held  to 
be  sufficient.  Anything  short  of  that 
degree  of  certainty  would  leave  it  to 
the  affiant  to  determine  what  consti- 
tutes a  defense,  and  not  to  the  court,  as 
it  certainly  should."  Accordingly  it 
was  there  held  that  the  defendant's 
affidavit  was  insufficient  which  merely 
stated  in  effect  that  by  the  absent  wit- 
nesses she  could  prove  that  she  was 
not  guilty  without  averring  that  such 
witnesses  of  their  own  knowledge  could 
so  state,  or  from  information  could 
state  material  circumstances.  To  the 
same  point  see  Steele  v.  People,  45  111. 
152,  where  the  insufficient  affidavit  is 
printed  in  full. 

"  To  entitle  a  party  to  a  continu- 
ance under  the  statute,  the  facts  ex- 
pected to  be  proved  by  the  absent 
witnesses  should  be  set  forth  with  such 
certainty  that  the  opposite  party  can, 
if  he  thinks  proper,  admit  them,  and 
go  to  trial."  Allen  v.  Scott,  13  111.  80. 
Hence,  as  was  held  in  the  case  last 
cited,  an  affidavit  by  defendant  that 
he  expected  to  prove  by  the  absent 
witness  "  that  he  had  paid  the  whole 
or  some  part  of  the  said  sum  of 
money  in  the  said  plaintiff's  declara- 
tion mentioned"  was  bad  for  indefi- 
niteness,  because  it  was  left  wholly 
uncertain  how  much  or  what  part  the 
defendant  expected  to  prove  had  been 
paid,  and  consequently  put  it  out  of  the 
power  of  the  plaintiff  to  avoid  a  con- 
tinuance by  admitting  the  amount. 

"An  affidavit  for  continuance  on  ac- 
count of  the  absence  of  a  witness  must 


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Volume  5. 


6285.  CONTINUANCES  AND  6285. 

nesses  that  the  use  of  the  premises,  occupied  by  affiant  as  aforesaid, 
was  lessened  in  value  for  the  quarter  for  which  the  said  plaintiff  seeks 
to  recover  rent  in  this  case,  by  reason  of  the  possession  taken  as  afore- 
said by  said  company,  in,  at  least,  the  sum  of  one  hundred  and  sixty 
dollars;  and  that  he  knows  of  no  other  witnesses  by  whom  he  can  so 
fully  prove  the  same  facts.^  Affiant  saith  that  during  the  time  he  so 
occupied  said  City  Hotel,  as  lessee  of  the  plaintiff,  the  plaintiff,  after 
the  lease  to  affiant  upon  which  rent  is  sought  to  be  recovered  in  this 
cause,  said  plaintiff  leased  one  room  in  said  City  Hotel  to  one  Storey, 
whose  first  name  affiant  does  not  know,  to  be  used  as  a  shop  for  the 
manufacture  of  tin  and  sheet-iron  ware,  and  another  room  in  the 
same  building  to  Owen  Judge,  for  a  bake  shop  for  the  manufacture  of 
bread  and  crackers,  etc. ;  and  said  rooms  were  immediately  under 
two  sitting  rooms  in  said  hotel.  And  affiant  expects  to  prove  by 
said  Hoffman  and  Holmes,  that  said  business  of  making  tin  and  sheet- 
iron  ware,  and  the  business  of  a  bake  shop  was  improper  business  to 
be  carried  on  in  said  building,  while  the  hotel  was  kept  in  the  same, 
and  necessarily  greatly  injured  affiant  in  his  said  business;  and  that 
said  business  of  manufacturing  tin  and  sheet-iron  ware  was  carried 
on,  and  the  said  bake  shop  was  in  operation,  during  some  five  or  six 
weeks,  during  the  tenancy  of  affiant  aforesaid,  and  the  bake  shop  was 
continued  for  about  one  year,  and  during  the  whole  quarter  in  which 
the  rent,  sought  to  be  recovered  in  this  case,  accrued. 

[Affiant  says  that  all  the  facts  which  he  expects  to  prove  as  afore- 
said by  all  of  said  witnesses  are  true,^  that  he  expects  to  procure 

not  only  show  the  facts  which   can  be  the   witness   would   prove   were   inad- 

proved  by  the  witness,  but  how  such  missible  as  evidence  under  the  issues, 
facts  will  be  material  to  the  issue  about         For  other  cases  where  the  evidence 

to  be     tried."       Long   v.    People,     135  was   held  to  be   immaterial   see   West 

111.  435,  a  prosecution  for  assault  with  Chicago  Park  Com'rs  v.  Barber,  62  111. 

a   deadly  weapon,    where   the  defend-  App.  108;  Chambers  v.  Beahan,  57  HI. 

ant's  affidavit  stated   that  he  expected  App.  285. 

to   prove  by  the   absent  witness   that        1.  No  Other  Witness  to  Same  Facts. — 

the   prosecuting    witness    had   threat-  This  averment  is  not  required   by  the 

ened   to  kill   one    of    the    defendants,  statute,   but  in   Shook  v.   Thomas,   21 

It    was    held    insufficient   because     it  111.  go,  the  court   said:  "The  affidavit 

failed  to  show  that  there  was    any  at-  should  also  state  that  the  party  has  no 

tempt    to   execute  the   alleged    threat  other  witness  by  whom  the  same  facts 

at    the   time   of   the   assault   charged,  can  be  proven,  or  if  the  point   is  dis- 

See  also  to  the  same  point  School  Dist.  puted  and  numerous  witnesses  are  to 

No.  2,  etc.,  V.  Hentz,  57  111.  App.  648.  be  examined,  show  that  fact,  or  that  it  is 

"  Where  testimony  is  important  only  a  question  of  identity  upon  which  there 
in  connection  with  certain  facts,  those  will  be  a  contrariety  of  evidence.  This 
facts  should  be  set  forth  or  referred  to,  is  necessary  to  show  its  materiality." 
so  that  the  materiality  of  the  evidence  See  also  supra,  note  2,  p.  343;  Hodges 
may  be  apparent  to  the  court."  Bailey  v.  Nash,  43  111.  App.  638;  Eames  v. 
V.  Hardy,  12  111.  459.  See  also  Steele  v.  Hennessy,  22  111.  631;  Jarvis  v.  Shack- 
People,  45  111.  143,  and  supra,  note  lock,  60  III.  378.  And  to  the  point  that 
7.  P-  338.  if  the  affidavit  shows  that  there  will  be 

The  affidavit  was  held  insufficient  in  a  controversy  in  the  evidence  it  need 

McCreary  v.  Newberry,  25  111.  496,  for  not  state  that  there  is  no  other  witness 

the  sole  reason  that  there  was  no  issue  by  whom  the  same  fact  can  be  proved, 

to   which   the   expected  testimony,   as  see   North   v.   People,   139  111.  98,   and 

set  forth,   would  have  been  pertinent.  Form  No.  6286,  infra. 
Slate  V.  Eisenmeyer,   94   111.    100,  be-        2.  Belief  that  Testimony  Sought  is  True, 

cause  the  facts   which  it  was    alleged  — This  averment  is  not  required  by  the 

368  Volume  5. 


6286. 


ADJOURNMENTS. 


6286. 


their  testimony  by  the  next  term  of  this  court,^  and  that  neither  of 
them  is  absent  by  the  permission  or  consent  of  the  affiant,  directly 
or  indirectly  given.^ 

Thomas  J.  Wade.\ 
Subscribed  and  sworn  to  before  me  this  twenty-ninth  day  of  May^ 
A.  D.  1 85-4- 

^      P.  Lindly. 
Form  No.  6286.3 
(Precedent  in  North  v.  People,  139  III.  91.)* 

(^Titie  of  court  and  cause ,  and  venue  as  in  Form  No.  6285.^ 
Daniel  North  deposes  that  he  has  been  in  jail  ever  since  the  time  of 


statute,  but  in  Wilhelm  v.  People,  72 
111.  468,  the  affidavit  was  held  insuffi- 
cient because  it  was  not  stated  that  the 
facts  expected  to  be  proved  by  the  ab- 
sent witness  were  true,  or  that  he  was 
actually  present  at  the  time,  but  merely 
that  the  applicant  expected  to  prove  by 
him  that  he  was  present,  etc.  See  also 
supra,  note  2,  p.  342. 

The  affidavit  need  not  directly  state 
that  the  facts  proposed  to  be  proved  by 
the  absent  witness  are  true,  if  it  shows 
that  in  the  belief  of  the  affiant  the  facts 
are  in  substance  as  it  is  said  the  absent 
witness  will  testify.  North  v.  People, 
139  111.  99. 

1.  Expectation  of  Procuring  Testimony. 
—  This  averment  is  not  required  by 
the  statute,  but  was  held  necessary  in 
Shook  V.  Thomas,  21  111.  90;  Eames  v. 
Hennessy,  22  111.  631.  See  also  j«/ra, 
note  8,  p.  345. 

Where  the  absent  witness  is  a  non- 
resident, it  is  indispensable  that  the 
affidavit  shall  state  facts  showing  the 
reasonableness  of  the  applicant's  ex- 
pectation that  he  will  be  present  at  the 
time  to  which  it  is  proposed  to  continue 
the  cause.  Wilhelm  v.  People,  72  111. 
471,  where  the  affidavit  held  insufBcient 
is  given  verbatim. 

2.  Witness  Not  Absent  by  Procnrement 
or  Consent.  —  "  The  affidavit  should  state 
that  the  witness  is  not  absent  by  the 
permission  and  consent  of  the  party." 
Shook  V.  Thomas.  21  111.  90.  See  also 
North  Chicago  City  R.  Co.  v.  Gastka, 
128  111.  613.  The  averment  is  not  re- 
quired by  the  statute,  but  see  supra, 
note  5.  p.  345. 

3.  Affidavits  in  Criminal  Cases.  —  The 
section  upon  which  the  preceding  forms 
were  based,  Starr  &  C.  Anno.  Stat.  111. 
(1896),  p.  3036,  par.  43,  is  a  part  of  the 
Practice  Act,  c.  no,  §  43,  and  is  the 
only  provision  relating  to  the  contents 
of  affidavits  for  continuances  in  courts 
of  record.     Prefixed  to  the  Practice  Act 


in  Starr  &  C.  Anno.  Stat.  111.  (1896),  p. 
2977,  is  the  following  note  by  the  editors: 
"  This  act  governs  civil  suits  on  the  law 
side  in  trial  courts.  *  *  *  It  does  not 
in  general  govern  chancery  or  criminal 
suits  in  trial  courts  unless  such  suits 
are  expressly  mentioned."  And  in 
Baxter  v.  People,  8  111.  372,  it  was 
expressly  held  upon  much  considera- 
tion that  the  Practice  Act  of  1827, 
whereby  a  party  was  entitled  to  a  con- 
tinuance upon  filing  an  affidavit  of 
certain  facts,  "  only  applies  to  civil  pro- 
ceedings and  has  never  been  held  or 
supposed  to  apply  to  criminal  cases. 
Had  the  courts  in  all  criminal  cases 
required  affidavits  for  continuances  to 
be  as  full  as  required  under  the  statute, 
it  might  and  would  frequently  have 
operated  most  oppressively  upon  ^pris- 
oners." But  in  Trask  v.  People,  151 
111.  527,  where  an  affidavit  for  a  continu- 
ance by  the  defendant  in  a  criminal 
case  was  held  insufficient,  the  court 
quoted  the  section  above  mentioned, 
viz..  Practice  Act,  c.  no,  §  43,  and  pro- 
ceeded to  exact  compliance  with  its 
requirements  seriatim.  The  Illinois 
decisions  relating  to  the  sufficiency  of 
affidavits  in  both  criminal  and  civil 
cases  are  cited  in  the  notes  to  Form 
No.  6285,  supra. 

"  The  essential  requisites  of  the  affidavit 
are  these:  First  —  The  name  and 
residence  of  the  witness;  that  he  is 
rfeally  material  and  shown  to  the  court 
by  the  affidavit  to  be  so.  Second  —  That 
the  party  who  applies  has  been  guilty 
of  no  neglect,  or,  in  other  words,  shows 
the  exercise  of  proper  diligence.  Third 
—  That  the  witness  can  be  had  at  the 
time  to  which  it  is  sought  to  have  the 
trial  of  the  cause  deferred."  Shirwin  v. 
People,  69  111.  58,  holding  that  the  affi- 
davit therein  presented  was  sufficient, 
and  adjudging  it  manifest  error  to  over- 
rule the  motion  for  continuance. 

4.  It  was  held  reversible  error  to  re- 


5  E.  of  F.  P.— 24. 


869 


Volume  5. 


6286.  CONTINUANCES  AND  6286. 

the  alleged  homicide, — July  81,  i890;  that  he  was  twenty-six  years  of 
age  November  30,  i890,  and  is  a  farmer  and  ditcher  by  occupation ;  that, 
as  set  forth  in  former  affidavit,  he  has  been  unable  to  procure  counsel 
to  advise  him  as  to  his  rights,  and  unable,  for  want  of  means,  to  hunt 
up  and  ascertain  material  witnesses  in  his  behalf,  and  has  been 
unable,  for  want  of  means,  to  have  anything  done  in  the  preparation 
of  his  defense  until  November  7,  x890,  when  Strawn  &>  Norton  were 
appointed  by  the  court  to  defend  him;  that  since  that  time  he  and 
his  attorneys  have  worked  diligently  and  industriously,  as  circum- 
stances would  permit,  to  ascertain  the  facts  in  the  case,  and  learn 
the  names  and  whereabouts  of  such  persons  as  may  have  witnessed 
the  facts  and  circumstances  leading  up  to  the  alleged  shooting,  but 
they  have  been  unable  to  be  ready  for  trial  at  this  time,  as  herein- 
after shown;  that,  imprisoned,  defendant  has  been  able  to  do  but 
very  little  to  assist  his  attorneys  in  the  premises;  that  he  is  informed 
and  believes  that  the  witnesses  for  the  prosecution  will  fix  the  time 
of  the  alleged  shooting  at  or  between  nine  and  ten  o'clock  in  the 
forenoon  oi  July  21,  i890,  and  the  place  as  near  the  Smith  House,  in 
Pontiac,  in  a  populous  part  and  near  the  business  center  of  the  city, 
and  defendant  is  sure  and  certain  that  some  person  or  persons  not  yet 
known  must  have  been  eye-witnesses  to  the  facts  which  led  up  to  and 
caused  the  alleged  shooting;  that  defendant  had  not  the  slightest 
intention  of  assaulting  Hodge  or  other  person,  and  did  not  do  so 
except  in  his  necessary  self-defense;  that  though  affiant  was  much 
intoxicated  at  the  time,  as  shown  in  his  affidavit  of  November  6,  iS90, 
made  part  hereof  by  reference,  he  believes  that  Hodge  came  upon 
him  in  a  very  threatening  manner  and  demanded  defendant's 
revolver,  and  that  he  refused  to  give  it  to  him,  and  defendant  tried 
to   go  away  from  him,  but  Hodge  followed  him  up  and  struck  him 

fuse  a  motion  for  continuance  upon  this  read  the  affidavit  of  one  of  the  counsel 
affidavit.  named,  in  corroboration  of  his  affidavit. 
Pertinent  Facts  in  the  History  of  the  But  the  court  overruled  the  motion, 
Case.  —  The  defendant  was  prosecuted  and  thereupon  Messrs.  Strawn  & 
for  the  murder,  on  July  21,  1890,  of  Norton,  who  had  acted  as  counsel  for 
William  Hodge,  a  city  marshal  of  Pon-  North  when  he  was  arraigned  and  in 
tiac.  On  the  7th  of  November,  1890,  making  this  motion  for  continuance, 
the  case  was  called  for  trial,  and  North  withdrew  from  the  case  and  declined 
then  entered  his  motion  to  continue  the  to  voluntarily  act  further  as  his  coun- 
cause,  and  in  support  of  his  motion  he  sel.  The  court  thereupon  appointed 
read  his  own  affidavit,  in  which  he  Messrs.  Strawn  &  Norton  as  counsel 
stated,  among  other  things,  that  he  had  to  defend  North,  and  also  ordered  the 
been  unable  to  prepare  his  defense  by  case  to  be  set  down  for  hearing  on  the 
reason  of  being  in  jail  and  of  his  having  17th  of  November.  Thereupon,  on 
no  means  wherewith  to  employ  counsel;  the  last  named  date.  North,  by  his 
that  he  wished  Messrs.  Strawn  &  Nor-  counsel,  applied  for  a  change  of  venue 
ton  to  defend  him,  and  had  a  conditional  on  account  of  the  prejudice  of  the  pre- 
contract with  them  to  that  effect,  but  that  siding  judge,  which  was  allowed,  and 
they  will  do  nothing  until  the  amount  another  judge  was  immediately  called 
of  their  stipulated  compensation  is  in  to  preside,  and  did  thereafter  preside 
raised,  which  he  had  been  unable  to  in  the  court,  and  the  cause  was  by  that 
have  done;  that  he  has  had  communi-  judge  set  down  for  hearing  on  that 
cation  with  his  father,  who  is  now  day  —  the  iSth  of  November.  On  that 
taking  steps  to  raise  the  requisite  means  day  North  made  a  second  application 
as  rapidly  as  possible,  and  that  he  ex-  for  continuance  of  the  cause  and  sup- 
pects  boon  to  have  them;  and  he  also  ported  it  by  the  affidavit  here  printed. 

370  Volume  5. 


6286.  ADJOURNMENTS.  6286. 

several  heavy  blows  on  the  head  with  a  club  or  some  other  heavy 
weapon,  and  so  dazed  and  stunned  him  that  he  has  little  or  no  knowl- 
edge of  what  subsequently  occurred,  except  as  he  has  it  from  hear- 
say; that  since  a  knowledge  of  the  facts  as  now  claimed  by  the 
prosecution  came  to  him  since  his  imprisonment,  he  has  as  diligently 
as  his  imprisonment  would  permit  endeavored  to  ascertain  the  names 
of  eye-witnesses  of  what  occurred  between  defendant  and  Hodge 
leading  up  to  the  alleged  shooting,  and  other  facts  and  circum- 
stances attending  the  same,  but  has  been  unable  to  do  so  until  about 
the  hour  of  seven  o'clock  last  evening,  November  17,  iS90,  when  he 
learned  for  the  first  time  of  the  facts  stated  in  the  affidavit  of  Charles 
Zdt^^,  filed  herewith;^  that  defendant  has  every  reason  to  believe,  and 
does  believe,  that  the  facts  stated  in  said  affidavit  of  Lake  are  true, 
and  that  the  "runner"  therein  mentioned  was  an  eye-witness  to  the 
matters  and  things  related  to  said  Lake,  as  stated  in  said  affidavit; 
that  if  this  cause  shall  be  continued  to  the  next  term  of  this  court, 
defendant  has  no  doubt  but  that  his  attorneys  and  friends  will  be 
able  to  trace  and  ascertain  the  name  and  whereabouts  of  said  runner, 
from  the  hotel  register  in  Pontiac,  where  said  runner  put  up  on  the 
day  of  the  alleged  shooting,  and  have  him  in  attendance  upon  this 
trial  as  a  witness  in  defendant's  behalf;  that  he  is  informed  and 
believes  that  runners  upon  the  road  are  most  generally  acquainted 
with  each  other,  and  by  taking  all  of  the  names  from  the  hotel 
registers  in  this  city  for  the  day  in  question,  he  verily  believes  he 
will  be  able  to  ascertain  the  whereabouts  of  some  of  them,  and  that 
by  conferring  with  them  he  will  be  able  to  trace  up  all  of  them, 
including  said  runner  referred  to  in  said  Lake's  affidavit;  that  it  is 
reasonable  to  suppose,  and  he  verily  believes,  that  other  persons  yet 
unknown  were  eye-witnesses  to  said  facts  and  circumstances,  and  n<J'w 

1,  The  Additional   Affidavits.  —  Omit-  followed  him,  and  violently  seized  him 

ting  the  caption  and  signature,  Charles  with  one  hand  and  commenced  beating 

Lake's  deposition  was  as  follows:  him    over   the   head   with   a   club,    or 

*' He  is  a  painter  by  trade,  and  has  policeman's  'billy,'  which  he  held  in 
resided  in  Pontiac  for  the  past  twenty-  the  other  hand,  and  then  a  scuffle  en- 
nine  years;  that  since  the  alleged  sued  between  the  two  men,  and  in  the 
shooting,  and  he  thinks  it  was  the  next  scuffle  (Hodge  still  beating  him  with 
day  after,  he  was  going  on  a  Wabash  the  club)  North  went  down,  and  he 
train  from  Pontiac  to  Saunemin,  where  heard  shots  fired  after  the  scuffle  com- 
he  was  doing  a  job  of  painting  for  menced,  but  could  not  tell  which  of  the 
Holdridge,  and  that  in  said  train  he  got  men  fired  the  shots,  and  that  North 
into  conversation  with  a  man  whom  he  seemed  very  much  intoxicated;  that 
understood  to  be  a  runner  for  a  whole-  said  runner  had  a  brown  mustache  and 
sale  house,  and  that  the  shooting  of  he  thinks  he  would  be  able  to  identify 
Hodge  came  up,  and  said  runner  told  him,  and  he  inferred  from  the  conver- 
him  that  he  saw  the  whole  thing  from  sation  that  said  man  was  a  runner  for 
the  west  end  of  the  porch  of  the  Smith  a  Chicago  wholesale  house;  that  he  got 
House,  where  he  was  standing  at  the  out  of  the  train  at  Forrest  and  ate  a 
time,  and  that  he  did  not  think  North  lunch  at  the  counter  at  the  station,  and 
was  to  blame  in  the  matter,  because  affiant  understood  from  him  that  he 
the  policeman  (meaning  Hodge)  rushed  was  then  on  his  way  to  Chicago;  that 
upon  him  in  a  violent  and  threatening  affiant  made  the  foregoing  facts  known 
manner  and  demanded  that  he  give  to  Mr.  C.  C.  Strawn  for  the  first  time 
him  his  revolver,  which  North  refused  about  half-past  six  o'clock  last  evening, 
to  do,  and  started  to  go  away  toward  November  17,  1890." 
the  north,  and  thereupon  the  policeman 

371  Volume  5. 


6286.  CONTINUANCES  AND  6286. 

that  he  has  attorneys  to  look  after  and  manage  his  defense  he  will  be 
able  to  ascertain  their  names,  and  have  them  present  at  the  next  term 
of  this  court  to  testify  in  his  behalf;  that  Fotitiac  is  a  city  of  about 
3,000  inhabitants,  and  there  are  only  two  or  three  hotels  of  any 
importance  in  the  city,  and  it  will  not  be  difficult  to  trace  up  the 
transients  stopping  at  them  on  a  given  day;  that  this  is  the  first 
term  of  court  since  the  alleged  shooting,  and  under  the  unfortunate 
circumstances  of  the  case  it  would  be  most  unjust  and  unnecessary 
to  compel  defendant  to  submit  to  trial  at  this  time;  that  the 
materiality  of  said  runner,  and  of  other  witnesses  defendant  believes 
he  will  be  able  to  produce  by  the  next  term  of  court,  consists  in  this: 
that  it  will  show  that  Hodge  violently  assaulted  affiant  in  such 
manner  as  to  cause  a  reasonable  man  to  believe  that  his  life  was  in 
danger;  that  affiant  knows  of  no  other  witness  or  witnesses  by  whom 
he  can  prove  said  facts;  that  it  is  wrongfully  and  mistakenly  claimed 
by  the  People,  based  upon  the  testimony  of  some  witness  or  witnesses, 
as  defendant  is  informed  and  believes,  that  affiant  was  the  aggressor, 
and  fired  the  alleged  shot  or  shots  without  provocation  and  under 
circumstances  not  called  for  in  his  necessary  self-defense,  and  it  is 
therefore  indispensable  to  justice  and  defendant's  defense  that  he 
should  have  the  testimony  of  said  runner,  and  others  whom  he  believes 
he  will  be  able  to  discover  by  the  next  term  of  this  court;  that 
defendant's  want  of  readiness  for  trial  is  not  through  any  fraud, 
collusion  or  procurement,  but  he  has  good  reason  to  believe,  and 
does  believe,  that  he  will  be  able  to  find  said  runner  and  others  to 
establish  the  facts  set  up  in  the  affidavit  of  said  Lake,  and  have  them 
present  at  the  next  term  of  this  court;  that  since  said  affidavit  of 
November  6,  iS90,  his  friends  have  furnished  him  with  some  money 
for  his  counsel,  and  to  pay  necessary  expenses  of  hunting  up  and 
procuring  the  attendance  of  such  material  witnesses  as  he  believes  he 
will  be  able  to  discover  by  the  next  term  of  court,  and  he  knows  of 
no  reason  why  he  may  not  be  fully  ready  for  trial  at  that  time;  that 
defendant  is  entirely  ignorant  of  court  proceedings,  and  being  delayed 
and  disappointed  in  the  procurement  of  counsel,  as  shown  in  said 
affidavit  of  November  6,  i890,  he  was  prevented  from  having  anything 
done  in  the  preparation  of  his  defense  until  said  7i^  day  of  the  pres- 
ent month,  when  Strawn&'  Norto?i  vfexo.  appointed  to  defend  him; 
that,  imprisoned  as  he  was,  he  could  hear  or  learn  but  little  of  what 
was  claimed  against  him  as  to  the  facts  and  circumstances  of  the 
case,  and  being  entirely  unacquainted  with  such  matters  he  did  not 
know  what  to  do,  and  bent  all  his  efforts  to  have  his  friends  raise 
money  to  employ  counsel,  but  was  not  able  to  do  so  in  time  for  this 
court;  (defendant  makes  affidavit  of  C.  C.  Strawn,  filed  November  7, 
i890,  part  of  this  affidavit  by  reference ;)i  that  he  is  informed  and 

1.  Omitting  the  caption   and  signa-  every  effort  in  their  power  to  be  ready 

ture,  C.  C.  Strawn's   affidavit  was   as  for  trial  at  this  time,  consistent  with 

follows:  their   duties   to    other    clients    having 

"  He  is  of  counsel  appointed  to  de-  causes  in  this  term  of  court;    that  on 

fend  accused   November  7,   1890;  that  Monday,  November  10,  1890,   the  case 

since  said  appointment  of  the  firm  of  of  Heisner  v.  Illinois  Central  Railroad 

Strawn  and  Norton  they  have  put  forth  Co.,  involving  very  complicated   ques- 

373  Volumes. 


6287. 


AD  JO  URNMENTS, 


6287. 


believes  that  the  matters  concerning  which  s^id  runner  and  other 
witnesses  will  testify  are  material,  and  that  there  will  be  a  conflict  of 
testimony  thereon,  and  that  the  testimony  of  said  witnesses  will  be 
absolutely  necessary  to  establish  a  reasonable  doubt  in  the  minds  of 
the  jury  of  the  guilt  in  the  premises;  that  said  runner,  and  other 
persons  expected  to  be  procured  by  next  term  of  court,  are  not  absent 
by  the  permission  or  consent  of  defendant  ;i  that  he  expects  to  pro- 
cjre  their  testimony  by  the  next  term  of  court,  and  that  this  applica- 
tion is  not  made  for  delay,  but  that  justice  may  be  done.  (Signature 
and  jurat  as  in  Form  No.  6285.^ 


Form  No.  6287.' 

I  Inthe  Marion  Circuit  Court, 
against  ^ 


PumXc  L.ry.  \i'aruaryT,n^  .877. 

State  of  Indiana,  \ 
Marion  County,    f 

Patrick  C.  Leary,  being  duly  sworn,  upon  his  oath  says  that  he  is 


tions  of  law  and  fact  under  the  drain- 
age laws,  came  on  for  trial,  and  was 
submitted  to  the  jury  at  the  adjourn- 
ment of  court  on  the  following  Thurs- 
day evening,  the  jury  returning  a 
verdict  the  next  morning,  and  Strawn 
and  Norton  conducted  the  defense  for 
said  company,  and  the  cause  was  very 
hotly  contested,  and  during  the  trial 
thereof  they  were  wholly  unable  to 
give  any  substantial  attention  to  the 
case  of  the  defendant  North  in  this  in- 
dictment; that  on  Friday,  November 
14,  1890,  after  the  verdict  in  said  rail- 
road case,  the  case  of  Filbert  v.  Lynch 
et  al.,  under  the  Dram-shop  act,  for  loss 
of  support  by  the  drunkenness  of  her 
father,  came  on  for  trial,  and  Strawn 
and  Norton  were  of  counsel  for  defend- 
ants in  that  suit,  which  continued  until 
the  forenoon  of  the  next  day,  Saturday, 
November  15,  1890;  that  the  engage- 
ments of  Strawn  and  Norton  in  said 
causes  were  long  prior  to  the  present 
term  of  this  court  and  their  appoint- 
ment to  defend  accused  in  this  indict- 
ment, and  they  were  the  only  counsel  for 
the  company  in  said  railroad  case,  and 
they  could  not  put  those  cases  aside  for 
this  cause;  that  in  the  limited  time  allot- 
ted to  them,  under  the  circumstances,  to 
inquire  into  the  law  and  facts  and  cir- 
cumstances of  this  case,  they  have 
found  that  there  are  several  very  close 
and  vital  questions  of  law  and  fact, 
and  the  charge  being  a  capital  one, 
they  are  not  prepared  to  properly  con- 
duct the  defense  at  this  term,  and 
could  not  do  the  defendant  justice  for 


want  of  sufficient  time  to  become 
acquainted  with  said  law  and  facts, 
and  considering  the  fatal  result  that 
may  befall  the  defendant  by  reason  of 
such  want  of  necessary  preparation, 
affiant,  in  behalf  of  his  said  firm,  must 
beg  of  this  court  to  be  relieved  of  the 
responsibilities  of  the  case,  unless  fur- 
ther and  sufficient  time  for  said  neces- 
sary preparations  be  granted;  and 
Charles  Lake  informed  affiant  of^the 
facts  set  forth  in  his  affidavit  filed  here- 
with, for  the  first  time  last  evening, 
November  17,  1890,  about  half-past 
six  o'clock,  and  affiant  immediately 
communicated  such  facts  to  defendant; 
that  he  and  his  partner  (Norton)  have 
worked  "as  diligently  as  the  circum- 
stances above  related  would  permit,  to 
be  ready  for  this  trial,  but  have  been 
unable  to  do  so,  and  affiant  states  that 
this  application  is  not  made  for  delay, 
but  that  justice  may  be  done." 

1.  The  court  said:  "  It  is  impossible 
to  discover  any  negligence  in  North  in 
not  sooner  having  ascertained  the  ex- 
istence of  this  witness,  and  it  appears 
that  after  the  information  in  regard  to 
such  witness  was  communicated  to  him 
there  was  not  time  for  his  attorneys  to 
find  the  witness.  It  has  never  been 
regarded  necessary  for  the  defendant 
to  show  the  same  degree  of  prompt- 
ness and  diligence  in  preparing  for 
trial  at  the  term  at  which  the  indict- 
ment is  returned  as  at  subsequent 
terms." 

2.  In  Leary  v.  Nave,  66  Ind.  221.  de- 
fendant's affidavit,  which  is  therein  set 


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the  defendant  in  the  above  entitled  cause ;^  that  he  cannot  safely  go 
into  the  trial  of  said  cause  in  this  court  on  this  day  by  reason  of  the 
absence  of  one  Edward  Connelly^  who  is  a  competent,  proper  and 
material  witness  for  him  upon  the  trial  of  this  cause ;' that  he  be- 


forth,  was  held  insufficient  in  respect 
of  the  diligence  shown.  Some  parts 
of  that  affidavit  that  were  apparently 
unobjectionable  are  reproduced  in  this 
form  for  the  sake  of  verisimilitude. 

Necessity  of  Affidavit.  —  Horner's  Stat. 
Ind.  (1896),  §§  410,  1781,  provide  that 
a  motion  to  postpone  the  trial  on  ac- 
count of  the  absence  of  evidence  can 
be  made  "  only  upon  affidavit  show- 
ing," etc.  The  statute  applies  to  tem- 
porary postponements  as  well  as  to 
continuances  for  the  term.  Morris  v. 
State,  104  Ind.  457,  holding  that  a  mo- 
tion to  postpone  a  trial  until  the  next 
day,  if  not  supported  by  affidavit  or 
other  affirmative  showing,  is  properly 
overruled. 

Second  Application  for  Same  Canse.  — 
One  application  for  a  continuance,  on 
account  of  an  absent  witness  having 
been  refused,  the  affidavit  on  a  second 
application  at  the  same  term  on  account 
of  the  absence  of  other  witnesses 
should  contain  a  reasonable  excuse 
for  the  failure  of  the  applicant  to  avail 
himself  of  the  last  ground  in  his  first 
application.  Shattuck  v.  Myers,  13 
Ind.  46. 

It  is  error  to  refase  a  continuance  when 
the  affidavit  shows  everything  required 
by  the  statute.  Cutler  7/.  State,  42  Ind. 
244;  Jenks  V.  State,  39  Ind.  4. 

1.  Who  may  Make  Affidavit. —  The 
statute  does  not  designate  who  shall 
make  the  affidavit.  It  may  be  made  by 
an  agent  of  the  party,  without  account- 
ing for  the  absence  of  the  principal  or 
giving  any  other  reason  why  it  was  not 
made  by  him.  'That  the  agent  is  a 
stranger  to  the  record  can  make  no  dif- 
ference. Nay,  for  that  very  reason  his 
statements  under  oath  are  entitled  to 
greater  consideration  than  if  made  by 
the  interested  party  himself."  Espy  v. 
State  Bank,  5  Ind.  274  (where  the  sub- 
stance of  the  affidavit  is  given),  cited 
with  approval  in  Abbott  v.  Zeigler,  9 
Ind.  511,  holding  that  an  attorney 
might  make  an  affidavit  for  a  change 
of  venue  on  behalf  of  his  client.  See 
also  Form  No.  6288,  infra. 

The  sickness  of  a  witness  preventing 
him  from  attending  court  may  be 
shown  by  the  affidavit  of  any  person 
who  knows  the  fact.  "  We  know  of  no 
principle  of  law  or  rule  of   practice," 


said  the  court,  "  which  requires  the  affi- 
davit of  a  physician  to  show  the  sick- 
ness of  a  witness."     Cutler  v.  State,  42 
Ind.   247.     But  see  notes  to  Form  No.  . 
6305. 

2.  Name  of  Witness.  —  The  affidavit 
must  show  the  name  of  the  witness  if 
known.  Horner's  Stat.  Ind.  (1896), 
§^  410,  1781.  See  also  supra,  note  I, 
p.  334.  If  unknown,  diligence  to  ascer- 
tain it  must  be  shown.  Post  v.  State. 
14  Ind.  App.  452.  See  also  the  follow- 
ing note,  and  for  an  affidavit  showing 
sufficient  diligence  in  this  behalf  see 
Form  No.  6286. 

3.  Expected  Testimony  and  Materiality 
Thereof.  — The  affidavit  must  show  "the 
materiality  of  the  evidence  expected  to 
be  obtained"  and  "  what  facts  he  be- 
lieves the  witness  will  testify  to." 
Horner's  Stat.  Ind.  (1896),  §§  410,  17S1. 
See  also  supra,  note  7,  p.  335  et  seq. 

Materiality  and  Competency.  —  The 
affidavit  must  show  that  the  absent 
testimony  is  material  and  competent. 
French  v.  Blanchard,  16  Ind.  146.  See 
also  Benson  v.  McFadden,  50  Ind.  431. 

A  statement  that  a  nonexpert  wit- 
ness will  testify  that  the  party  was  of 
unsound  mind  is  insufficient,  because 
such  testimony  would  not  be  competent 
evidence.  That  the  witness  will  testify 
to  certain  specified  facts  must  be  al- 
leged.    Warner  f.  State,  114  Ind.  137. 

In  Beavers  v.  State,  58  Ind.  530,  it 
was  held  that  an  affidavit  in  a  criminal 
case  stating  that  the  absent  testimony 
will  prove  an  alibi  must  show  that  the 
proposed  alibi  will  cover  the  whole 
time  when  the  crime  is  alleged  to  have 
been  committed. 

Statement  of  Facts.  —  The  affidavit 
should  state  specifically  the  facts,  and 
not  merely  legal  conclusions,  to  which 
the  absent  witness  will  testify.  Warner 
V.  State,  114  Ind.  137,  holding  that  the 
facts  should  be  so  stated  that  the  oppo- 
site party  may  admit  them  and  thus 
avoid  a  continuance.  In  the  same  case 
it  was  held  that  if  the  affidavit  states 
that  the  absent  party  will  testify  to 
threats  the  language  used  should  be 
stated.  See  also  Miller  v.  Harker,  96 
Ind.  234. 

In  French  v.  Blanchard,  16  Ind.  146, 
the  affidavit  was  held  insufficient  where 
it  averred  merely  that  affiant  expected 


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lieves  said  witness,  if  present,  would  testify  on  the  trial  of  this 
cause  that  (^Here  state  the  facts  to  which  it  is  believed  that  he  will  tes- 
tify). Affiant  further  says  that  he  believes  said  facts  to  be  true;^  that 
he  is  unable  to  prove  said  facts  by  any  other  witness  whose  testimony 
can  be  as  readily  procured.^ 

Affiant  further  says  that  said  witness  now  is,  and  continually  for 
more  \.\\zxi  five  years  last  past  hath  been,  a  resident  "of  the  city  of 
Indianapolis,  Marion  county,  Indiana'^  that  on  the  13th6.3.y  of  Febru- 


to  prove  by  the  absent  witness  "  all  the 
material  allegations  in  the  second, 
third  and  fourth  paragraphs  of  his 
answer." 

"  The  material  facts  which  the  statute 
requires  to  be  set  forth  in  an  affidavit 
for  a  continuance  cannot  be  supplied 
by  merely  attaching  to  the  one  pre- 
sented an  old  affidavit,  however  formal, 
which  has  served  its  purpose  at  a  pre- 
vious term.  The  affidavit  must  set  out 
and  aver  all  the  facts  as  they  then 
e.xist  which  are  essential  to  support  the 
application."  Sutherlin  v.  State,  io8 
Ind.  390,  holding  that  an  affidavit  in 
the  following  language  was  insuffi- 
cient: "  Comes  now  the  defendant,  who 
being  duly  sworn  says  that  the  witness 
John  Porter,  referred  to  in  his  affidavit 
hereto  attached  and  made  part  hereof, 
which  was  made  at  the  last  court,  as  to 
what  said  Porter  would  swear  to  and 
which  by  agreement  is  made  part 
hereof,  is,  as  he  now  learns  for  the  first 
time,"  etc.,  "  that  the  evidence  of  said 
Porter  is  very  material  as  the  court  will 
see  by  the  affidavit  hereto  attached." 

Approved  Form. — The  following  is 
an  extract  from  an  affidavit  by  the  de- 
fendant in  a  criminal  case  which  was 
held  sufficient  in  Gross  v.  State,  2  Ind. 
136:  "William  Gross,  the  defendant  in 
this  case,  makes  oath  that  he  is  in- 
formed and  believes  that  the  prose- 
cuting attorney  intends  to  produce  as  a 
witness  against  this  affiant  one  John 
C.  Stewart,  for  the  purpose  of  proving 
that  this  affiant  made  certain  admis- 
sions of  his  guilt  with  respect  to  the 
crime  with  which  he  is  charged  in  the 
indictment.  This  affiant  further  says, 
that  such  admissions  as  he  did  make  to 
said  Stewart  were  induced  by  raising 
the  hopes  of  this  affiant  if  he  should 
confess  his  guilt,  and  by  exciting  his 
fears  if  he  should  not  confess.  That 
he  expects  to  prove  by  one  Andrew 
Wanchop,  who  was  present  when  this 
affiant  made  the  admissions  alluded  to, 
that  to  induce  him  to  confess,  said 
Stewart  told  this  affiant  that  he  would 
in  about  half  an  hour  be  taken  out  of 


jail,  be  tried,  and  probably  be  hung 
unless  he  confessed  his  guilt;  but  if  he 
did  so  confess,  it  would  be  better 
for  him,  and  he  might  be  cleared. 
*  *  *  That  as  he  is  informed  and 
believes,  said  Stewart  denies  having 
held  out  inducements  for  him  to  con- 
fess; and  there  was  no  one  person  who 
was  present  during  all  the  conversation 
between  this  affiant  and  the  said  Stew- 
art but  themselves.  The  confessions 
made  to  said  Stewart  were  the  first  con- 
fessions made  by  this  affiant  in  respect 
to  the  charge  made  against  him  in  this 
cause,  and  would  not  have  been  made 
but  for  the  inducements  aforesaid." 

1.  Truth  of  Expected  Testimony.  —  The 
affidavit  must  state  that  the  affiant  be- 
lieves the  facts,  to  which  it  is  alleged 
the  absent  witness  will  testify,  to  be 
true.  Horner's  Stat.  Ind.  (1896),  §§ 
410,  1781.  See  also  supra,  note  2,  p. 
342. 

2.  Unable  to  Prove  Facts  by  Other  Wit- 
nesses. —  The  party  making  the  affidavit 
must  state  that  "  he  is  unable  to  prove 
such  facts  by  any  other  witness  whose 
testimony  can  be  as  readily  procured." 
Horner's  Stat.  Ind.  (1896),  §§410,  1781. 
See  also  supra,  note  2,  p.  343.  For 
cases  enforcing  this  requirement  see 
Miller  z/.  Harker,  96  Ind.  234;  Sutherlin 
V.  State,  io3  Ind.  390;  French  v.  Blan- 
chard,  16  Ind.  146.  But  the  statute 
does  not  mean  that  a  party  shall  be 
compelled  to  resort  to  his  own  testi- 
mony where  he  knows  the  facts  as  well 
as  the  absent  witness.  Ransbottom  v. 
State,  144  Ind.  250;  Fox  v.  Reynolds, 
24  Ind.  46. 

3.  Residence  ofWitness.  —  The  affidavit 
must  show  the  "residence  of  the  wit- 
ness, if  known."  Horner's  Stat.  Ind. 
(1896),  §§  410,  1781.  See  also  supra, 
note  I,  p.  334.  Merely  stating  that  a  sub- 
poena for  the  witness  was  issued  to  tne 
sheriff  of  a  certain  county  is  not  a  suf- 
ficient averment  of  residence.  Beavers 
V.  State,  58  Ind.  530,  where  the  report 
contained  extnicts  from  the  affidavit. 
If  the  residence  of  the  witness  is  un- 
known, the  affidavit   must  show  that 


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6288. 


ary,  i877,  he  caused  a  subpoena  to  issue  out  of  the  office  of  the  clerk 
of  this  court,  directing  and  commanding  said  witness  to  appear  and 
testify  as  a  witness  for  this  affiant  upon  the  trial  of  said  cause;  that 
said  subpoena  was  on  said  day  placed  in  the  hands  of  the  sheriff  of 
said  Marion  county  to  be  served,  and  that  said  sheriff  on  the  19th 
day  oi  February,  i877,  returned  said  subpoena  not  found;  that  said 
witness  is  absent  from  this  court,  and,  as  affiant  is  informed  and  be- 
lieves, is  now  in  the  city  of  Lafayette  temporarily;  that  affiant  was 
ignorant  of  the  fact  that  said  witness  was  absent  from  IndiaTiapolis 
until  the  return  of  the  subpoena  as  above  mentioned,  and  it  was  then 
too  late  to  procure  the  attendance  of  said  witness  or  his  deposi- 
tion upon  this  trial  ;^  that  affiant  believes  the  testimony  of  said 
witness  can  be  procured  within  a  reasonable  time;^  that  the  absence 
of  said  witness  has  not  been  procured  by  the  act  or  connivance  of 
the  affiant,  nor  by  any  other  person  or  persons  at  his  request,  nor 
with  his  knowledge  and  consent, ^ 

Patrick  C.  Leary. 
Subscribed  and  sworn  to  before  me  this  20th  ^2cj  of  February,  i877. 

Charles  Porter,  Clerk. 


Form  No.  6288.* 


sufficient  diligence  has  been  used  to 
ascertain  his  whereabouts.  Wolcott  v. 
Mack,  53  Ind.  269,  where  the  affidavit 
held  insufficient  is  set  forth  in  full. 
McKinlay  v.  Shank,  24  Ind.  258,  where 
the  substance  of  the  affidavit  is  given. 
Post  V.  State,  14  Ind.  App.  452. 

1,  Diligence  to  Obtain  Testimony. —  The 
affidavit  must  show  "  that  due  diligence 
has  been  used  to  obtain  "  the  absent 
testimony.  Horner's  Stat.  Ind.  (1896), 
§4^  410,  1 78 1.  See  also  supra,  note  5, 
p.  339.  For  cases  showing  insufficient 
diligence  to  obtain  the  attendance  of  the 
absent  witness  or  his  deposition  see 
McDermott  v.  State,  89  Ind.  187,  where 
the  witness  resided  out  of  the  state. 
Robinson  v.  Glass,  94  Ind.  211;  Mugg 
V.  Graves,  22  Ind.  236;  State  v.  Place, 
127  Ind.  194;  Leary  v.  Nave,  66  Ind. 
221,  where  a  subpoena  was  not  issued 
until  the  day  set  for  trial,  on  which 
point  see  also  Merrick  v.  State,  63  Ind. 
330;  Ransbottom  v.  State,  144  Ind.  250. 

The  affidavit  must  show  that  the  ap- 
plicant personally  has  used  due  dili- 
gence. It  does  not  show  a  sufficient 
excuse  by  averring  that  his  adversary 
had  summoned  the  witness.  Hutts  v. 
Shoaf,  88  Ind.  395. 

A  mere  averment  of  due  diligence  is  in- 
sufficient. Pence  z.  Christman,  15  Ind. 
259,  holding  that  an  allegation  that  the 
party  "has  used  due  diligence  to  ob- 
tain the  evidence  of  said  [witness], 
having  a  subpoena  issued  to  the  sheriff 


of  said  county,  and  by  said  sheriff  re- 
turned not  found,"  was  not  sufficient, 
because,  as  the  court  said,  "  it  does  not 
appear  when  the  subpoena  issued  or 
when  it  was  returned." 

2.  Probability  of  Procuring  Testimony. 
—  The  affidavit  must  show  "  the  proba- 
bility of  procuring  the  testimony  within 
a  reasonable  time."  Horner's  Stat. 
Ind.  (1896),  §§  410,  1781.  See  also 
supra,  note  3,  p.  347.  It  is  not  sufficient 
for  the  applicant  to  state  that  he  be- 
lieves the  testimony  of  the  witness  can 
be  procured  within  a  reasonable  time, 
where  he  gives  no  facts  upon  which 
such  belief  is  based,  nor  where  the 
facts  stated  do  not  warrant  such  belief. 
Post  V.  State,  14  Ind.  App.  452;  Ohio, 
etc.,  R.  Co.  V.  Dickerson,  59  Ind.  317; 
Robinson  v.  Glass,  94  Ind.  211.  See 
also  Merrick  v.  State,  63  Ind,  330. 

3.  Not  Absent  by  Connivance.  —  "The 
affidavit  must  further  show  that  the  ab- 
sence of  such  witness  has  not  been 
procured  by  the  act  or  connivance  of 
the  [party  in  a  civil  case;  defendant  in 
a  criminal  case],  nor  by  others  at  his 
request,  nor  with  his  knowledge  and 
consent."  Horner's  Stat.  Ind.  (1896), 
§§  410,  1781.     See    also   supra,  note    5, 

P-  345- 

4.  The  Statutory  Bequirements.  —The 
requisites  of  an  affidavit  for  continuance 
by  the  defendant  in  a  criminal  case  are 
prescribed  by  Horner's  Stat.  Ind.  (1896), 
S1781.     This  provision  is  nearly  iden- 


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6288. 


In  the  La  Grange  Circuit  Court, 
November  Sp.  Term,  i876>. 


(Precedent  in  Jenks  v.  State,  39  Ind.  4.)' 
State  of  Indiana 

V. 

Stephen  Jenks. 

Personally  came  into  open  conrt  Mary  Jenks,  who,  upon  her  oath, 
says  that  she  is  the  sister  of  the  defendant;  that  George  Rockwell  \Sy 
as  she  believes,  a  material  witness  for  the  defense;  that  he  is  a  phy- 
sician who  has  resided  in  Ontario,  in  said  county  of  La  Grange,  where 
the  deceased  Mallow  and  the  defendant  resided,  and  where  the  shoot- 
ing took  place;  that  he  was  well  and  intimately  acquainted  with  the 


tical  with  Horner's  Stat.  Ind.  (1896), 
§  410,  which  governs  applications  for 
continuances  in  civil  cases. 

Application  by  Prosecating  Attorney.  — 
Horner's  Stat.  Ind.  (1896),  §1782,  pro- 
vides that  "  whenever  the  prosecuting 
attorney  desires  to  obtain  a  postpone- 
ment of  the  trial  of  a  criminal  cause  on 
account  of  the  absence  of  any  witness 
whose  name  is  indorsed  on  the  indict- 
ment, such  continuance  shall  be  granted 
on  his  oflficial  statement  in  manner  and 
form  as  specified  in  the  preceding  sec- 
tion," which  is  quoted  above  in  this 
note;  "  but  the  defendant  may  require 
the  same  to  be  in  writing." 

1.  For  a  case  holding  that  the  prose- 
cuting attorney's  affidavit  made  an  in- 
sufficient showing  of  diligence  to  secure 
the  testimony  of  the  absent  witness, 
see  State  v.  Place,  127  Ind.  194. 

The  defendant  was  prosecuted  for 
murder  and  convicted,  and  a  new  trial 
was  granted  because  of  a  refusal  to  al- 
low a  postponement  on  this  affidavit. 
The  witness  was  in  good  health  when 
the  trial  commenced  and  had  promised 
to  attend,  but  was  suddenly  taken  sick 
so  that  he  was  unable  to  attend. 

For  a  form  of  an  affidavit  held  sufficient, 
but  which  would  now  be  defective  for 
omitting  some  of  the  formal  averments 
required  by  the  statute  now  in  force  and 
cited  in  the  preceding  note,  see  Gross 
V.  State,  2  Ind.  136. 

Accompanying  Affidavits.  —  Accompa- 
nying the  foregoing  affidavit  were  the 
three  following  affidavits.  They  seem 
to  have  had  no  weight,  however,  in 
the  determination  of  the  case  by  the 
supreme  court : 

"  State  of  Indiana  v.  Stephen  Jenks. 
In  the  La  Grange  Circuit  Court,  Special 
December  Term,  1870. 

Personally  appeared  in  open  court 
Avery  A.  Shelden,  and  upon  his  oath 
says,  that  George  Rockwell,  mentioned 
in  the  affidavit  of  Mary  Jenks,  is,  he 
believes,   unable  to  attend   this   court; 


877 


that  he  went  for  him  today  with  a  suit- 
able conveyance;  that  said  Rockwell, 
being  a  physician,  says  that  he  is  will- 
ing to  attend  this  court,  but  is,  from 
sickness,  unable  to  attend  court  with- 
out endangering  his  life. 

A.  Shelden. 

Subscribed  and  sworn  to  before  me 
in  open  court  this  26th  day  of  Decem- 
ber, 1870.        John  H.  Rerick,  Clerk." 

"State  of  Indiana  v.  Stephen  Jenks. 
In  the  La  Grange  Circuit  Court,  No- 
vember Special  Term,  1870. 

Personally  appeared  in  open  court, 
Joseph  D.  Farrall,  and  upon  oath  says 
that  he  and  John  Morris  are  thi  attor- 
neys of  the  defendant;  that  at  the  time 
the  trial  of  this  cause  was  commenced 
he  was  informed  and  believed  that 
George  Rockwell,  the  person  mentioned 
in  the  affidavit  of  Mary  Jenks,  was  tjien 
in  usual  health;  that  he  knew  he  was 
a  material  witness  for  the  defendant, 
and  had  him  duly  subpoenaed;  that 
since  the  trial  began,  as  he  is  informed 
and  believes,  the  said  Rockwell  was 
suddenly  taken  ill,  and  has  been  ever 
since  confined  to  his  house;  that  he  can- 
not, without  imminent  danger,  leave 
his  house  or  attend  this  court  as  a  wit- 
ness; that  this  affiant,  from  personal 
conversation  with  said  Rockwell,  be- 
lieves that  the  facts  as  set  forth  in  the 
affidavit  of  said  Mary  Jenks  can  be 
proven  by  said  Rockwell. 

J.  D.  Farrall. 

Subscribed   and    sworn    to    in  open 
court,  this  26th  day  of  December,  1870. 
Jno.  H.  Rerick,  Clerk." 

"  State  of  Indiana  v.  Stephen  Jenks. 
In  the  La  Grange  Circuit  Court,  No- 
vember Special  Term,  1870. 

Personally  appeared  in  open  court 
John  Morris,  one  of  the  attorneys  for 
said  defendant,  who  upon  his  oath  says 
that  at  the  commencement  of  this  trial 
he  was  informed  that  George  Rockwell, 
the  person  mentioned  in  the  affidavit  of 
Mary  Jenks,  would  be  present  during 


Volume  5. 


6289.  CONTINUANCES  AND  6289. 

defendant  at  the  time  of  said  shooting,  and  had  been  so  acquainted 
with  him  for  some  three  years  prior  thereto;  that  he  had  been,  for  more 
than  two  years  prior  to  said  shooting,  the  physician  of  the  defend- 
ant, and  as  such  had  prescribed  from  time  to  time  for  the  defendant 
during  said  period;  that  said  Rockwell  has  told  on  two  occasions, 
once  in  Aus^ust,  iS70,  and  again  about  the  19t/i  inst.  {November)  that 
the  defendant  had  been,  in  the  opinion  of  said  Rockwell^  ever  since  he, 
the  ssXd  Rockwell,  had  lived  in  Ontario,  insane;  that  she  believes  said 
fact  can  be  proven  by  the  said  Rockwell.  She  further  says  that  she 
believes  that  it  can  be  proven  by  said  Rockwell  that  the  defendant, 
for  a  period  of  more  than  two  years,  was  suffering  at  times  from 
severe  headache;  that  he  frequently  complained  of  a  pain  in  his  fore- 
head; that  he  was,  during  said  period,  moody  and  depressed;  that  he 
believed,  without  cause,  that  his  neighbors  and  others,  such  men  as 
JohnB.  Howe,  Samuel  P.  Williams,  and  others,  who  did  not  know  him, 
were  combined  against  him  for  the  purpose  of  injuring  him;  that  the 
belief  as  to  said  conspiring  was  false,  and  not  founded  upon  any 
process  of  reasoning;  that  he  also  believed  that  he  was  enabled  by 
superhuman  power  to  read  men's  thoughts;  that  he,  defendant,  stated 
to  Rockwell  on  the  day  of  the  shooting  and  within  twenty-five  minutes 
of  the  time  at  which  Mallow  was  killed,  that  he  shot  him  because  he 
was  compelled  to  shoot  him;  that  God  had  required  him  to  do  it. 
Said  aflfiant  further  says  that  she  believes  said  facts  to  be  true;  that 
the  said  Rockwell  has,  as  she  believes,  been  duly  subpoenaed  to  attend 
this  court  as  a  witness;  that  he  is  not  now  in  attendance;  but  is,  and 
has  been,  ever  since  the  defense  began,  confined  to  his  house  by 
sickness;  that  he  cannot  now  leave  his  house  without  danger.  She 
further  states  that  she  is  informed  and  believes  that  the  said  Rockwell 
will  be  able  in  the  course  of  five  or  six  days  to  be  present  in  court, 
and  testify.  She  further  says  that  she  has  personally  seen  and  talked 
with  said  witness,  and  knows  that  he  is  not  absent  through  the  advice, 
consent  or  connivance  of  the  defendant,  nor  through  the  advice  and 
consent  of  others  with  the  defendant's  knowledge,  or  by  his  consent. 
She  further  says  that  she  believes  the  defendant  to  be  now  insane, 
and  therefore  she  makes  this  affidavit  on  his  behalf. 

Mary  Jenks. 
Subscribed  and  sworn  to  in  open  court  this  26th  day  of  December^ 
i870. 

J  no.  H.  Rerick,  Clerk. 

Form  No.  6289.' 

the  trial  of  said  cause  as  a  witness  for  affidavit  of  Mary  Jenks  can  be  proven 
and  on  behalf  of  the  defendant;  that  by  said  Rockwell;  that  they  are  mate- 
he  understood  he  had  been  duly  sub-  rial,  and  that  some  of  the  facts  cannot 
poenaed  as  a  witness,  and  that,  as  he  be  proven  by  any  other  witness  as  fully 
was  then  informed,  he  was  well  and  as  by  said  Rockwell- 
able  to  attend;  that  had  he  known  that  [John  Morris.] 
said  Rockwell  would  not  be  able  to  at-  Sworn  to  in  open  court,  November 
tend  as  a  witness,  he  would  not  have  26,  1870. 

consented  to  go  into  the  trial  of  said  John  H.  Rerick,  Clerk." 

cause;  that  from  the  information  which         1.  The  form  given  in  the  text  com- 

affiant  has  obtained  from  others,  he  be-  bines  the  two  affidavits  for  a  continu- 

lieves  that  the  facts  as  set  forth  in  the  ance  filed  by  the  defendant  in  State  v. 

378  Volume  5. 


6289.  ADJOURNMENTS.  6289. 

State  of  Iowa.,        \ 
Marshall  County,  f 

I,  John  N.  Dakin,  being  sworn,  say  that  I  am  defendant;^  that  I 
cannot  safely  proceed  to  trial  at  the  present  term  by  reason  of  the 
absence  of  material  witnesses;  that  the  names  of  said  witnesses  are 
Joseph  Dakin,  Harriet  Dakin,  Edward  Dakin  and  Andrew  Dakin-^ 
that  their  present  whereabouts  are  unknown  to  me;  that  they  resided 
until  very  recently  in  Liberty  township,  Marshall  county,  Iowa,  and 
had  resided  in  said  township  nearly  two  years,  and  in  said  county 
nearly  twenty  years;  that  said  Harriet  Dakin  is  wife  of  ?,dd^  Joseph 
Dakin  and  said  Edward  and  Andrew  are  their  sons,  and  residing  all 
in  one  family;  that  they  removed  from  said  Liberty  township  on  or 
about  the  fourteenth  day  of  October,  iS,78,  with  the  intention,  as  I  am 
informed  and  believe,  to  go  to  Jewell  county,  Kansas-^  that  their 
intention  to  so  remove  before  the  present  term  of  this  court  was  not 
known  to  me;  that  I  did  not  learn  or  know  or  have  any  information 
of  their  departure  or  intention  to  depart  before  the  present  term  of 
this  court  until  the  morning  of  Saturday,  the  twenty-sixth  day  of 
October,  1 87^, when  I  first  learned  that  they  had  gone;  that  I  saw 
and  conversed  for  a  moment  with  said  Joseph  a  short  time  before 
he  went  away,  in  the  presence  of  several  parties,  at  the  door  of 
the  jail  in  this  county,  through  the  wicket;  that  I  had  opportunity 
to  do  no  more  than  barely  speak  to  him,  and  told  him  I  would 
want  him  as  a  witness  on  the  trial  of  the  case;  he  replied  that 
the  case  would  not  be  tried  here,  and  that  he  would  not  be 
needed  at  the  next  term  of  this  court;  that  it  was  then  my  inten- 
tion, and  I  believe  he  knew  of  it,  to  apply  for  a  change  of  venue; 
that  I  did  not  then  know  whether  my  trial  would  come  at  this 
term  of  the  court  and  did  not  know  or  expect  he  intended  to  leave/ 
here  immediately  and  before  this  court  would  convene;  that  I  did  not 
have  said  witness  subpoenaed  because  I  did  not  then  know  whether 
said  cause  would  be  tried  at  this  term  of  court  or  when  it  would  be 
tried,  and  because  I  supposed  that  as  they  resided  in  the  county  I 
could  procure  their  attendance  upon  a  few  hours'  notice,  and  because 
I  expected  my  application  for  a  change  of  venue  would  be  granted; 
that  I  was   surprised  my  application  for  said  change  of  venue  was 

Dakin,  52  Iowa  395,  where  it  was  held  v.  Savery,  4  Iowa  241;  State  v.  Nash,  7 

reversible  error  to  deny  the  application  Iowa  347;  State  v.  Barrett,  8  Iowa  536; 

for  a  continuance.     The  defendant  was  State  v.  Farr,  33  Iowa  553. 
indicted  for  a  murder  alleged  to  have        1.  Who    may    Make    Affidavit.  —  The 

been  committed  on  March  27th,  1878.  motion  "  must  be  founded  on  the  affi- 

He  was  brought  to  trial  at  the  October  davit   of   the  party,  his   agent,  or   at- 

term,   1878,    and   on    October   28th   he  torney."      Miller's   Anno.    Code    Iowa 

filed  his  motion  for  continuance,  sup-  (1890),  ^  2750. 

ported  by  affidavit,  and  on  the  follow-        2.  Names  and  Residences.  —  The   affi- 

ing   day  filed   an    additional   affidavit,  davit   must  state   the   name  and   resi- 

which,  as  above  stated,  is  substantially  dence  of  the  witness,    "  or  if   that  be 

incorporated  herein.  not  known,  a  sufficient  reason  why  not 

For  other  cases  in  which  it  was  held  known."     Miller's    Anno.    Code    Iowa 

that  the  showing  for  a  continuance  on  (1890),  §  2750,  subd.   i;  State  v.  Tilgh- 

the   ground   of   absent   witnesses   was  man,  6  Iowa  496.     See  also  supra,  note 

sufficient    to    constitute    it    reversible  i,  p.  334. 
error  to  overrule  the  motion,  see  Welsh 

879  Volume  5. 


6289. 


CONTINUANCES  AND 


6289. 


refused  by  the  court,  and  that  my  trial  would  come  on  this  term,  and 
because  of  all  said  matters  I  did  not  have  subpoenas  issued  for  said 
witnesses.  1  That  I  expect  to  prove  by  said  witnesses  Edward  and 
Andrew  the  following  facts  i^  On  the  evening  of  the  alleged  murder  of 
John  K.  Stough  they  were  at  my  barn  looking  for  a  horse  that  had 
formerly  been  owned  by  me,  and  which  they  expected  to  find  at  my 
barn,  and  that  on  their  return  I  accompanied  them  together  to  their 
father's  house,  a  distance  of  about  five  miles  from  my  residence,  and 
from  the  place  where  the  body  of  John  K.  Stough  was  found  the  next 
morning;  that  in  company  with  them  I  started  on  horseback  —  all  on 
horseback  —  from  my  barn  early  in  the  evening,  at  or  before  eight 
o'clock;  that  we  went  out  directly  to  their  father's,  Joseph  Dakins 
house;  that  I  remained  there  a  few  minutes  for  the  purpose  of  seeing 


1.  Diligence    to    Obtain    Testimony.  — 

The  affidavit  must  state  "efforts,  con- 
stituting due  diligence,  which  have 
been  used  to  obtain  such  witness  or 
his  testimony."  Miller's  Anno.  Code 
Iowa  (rSgo),  §  2750,  subd.  2,  and  "a 
continuance  shall  not  be  granted  for 
any  cause  growing  out  of  the  fault  or 
negligence  of  the  party  applying  there- 
for." Miller's  Anno.  Code  Iowa  (1890), 
§  2749. 

"  It  is  not  sufficient  to  state  generally 
that  due  diligence  has  been  used;  but 
the  affiant  should  set  forth  and  specify 
what  has  been  done,  that  the  court 
may  judge  of  the  diligence."  Brady 
V.  Malone,  4  Iowa  149.  See  also  State 
V.  McDonough,  (Iowa,  1897)  73  N.  W. 
Rep.  357,  and  supra,  note  5,  p.  339. 

"A  party  is  held  to  more  care  and 
diligence  to  procure  by  deposition  the 
testimony  of  a  witness  who  is  a  non- 
resident and  beyond  the  process  of  the 
court  than  he  is  required  to  employ  in 
the  case  of  a  resident  witness  who  is 
not  likely  to  be  beyond  the  process  of 
the  court."  Peck  v.  Parchen,  52  Iowa 
46,  where  the  averments  of  the  affidavit 
in  respect  to  diligence,  which  were 
held  insufficient,  are  set  forth  at  length; 
Friske  v.  Berryhill,  10  Iowa  203. 

If  the  affidavit  states  that  the  absent 
witness  is  sick,  it  should  also  appear 
that  his  sickness  was  not  known  to  the 
party  in  time  to  take  his  deposition. 
Adams  v.  Peck,  4  Iowa  551. 

An  affidavit  slating  that  a  subpoena 
has  been  issued  should  also  state  the 
date  when  it  was  issued.  State  v. 
Farrington,  90  Iowa  673. 

For  other  cases  where  it  was  held 
that  sufficient  diligence  was  not  shown 
see  Hardin  v.  Iowa  R.,  etc.,  Co.,  78 
Iowa  726;  Foster  v.  Hinson,  76  Iowa 
714;  George  v.  Swafford,  75  Iowa  491; 
Argall  V.  Pugh,   56  Iowa  308;   State  v. 


Bell,  49  Iowa  440;  State  v.  Hayden,  45 
Iowa  11;  State  v.  Spurbeck,  44  Iowa 
667;  Chicago,  etc.,  R.  Co.  v.  Heard,  44 
Iowa  358;  Finch  v.  Billings,  22  Iowa 
223;  State  v.  Cross,  12  Iowa  66;  Thurs- 
ton V.  Cavenor,  8  Iowa  155;  Widner  v. 
Hunt,  4  Iowa  355;  State  v.  Belvel,  89 
Iowa  405. 

2.  Facts  and  Materiality.  —  The  affida- 
vit must  state  "  what  particular  fact,  as 
distinguished  from  legal  conclusions, 
the  affiant  believes  the  witness  will 
prove."  Miller's  Anno.  Code  Iowa 
(1890),  §  2750,  subd.  3;  Chicago,  etc., 
R.  Co.  V.  Heard,  44  Iowa  358;  State  v. 
Tilghman,  6  Iowa  496.  See  also  supra, 
note,  7,  p.  335  et  seq. 

The  facts  expected  to  be  proved  must 
be  stated  with  such  certainty  and  dis- 
tinctness that  the  opposite  party,  by 
admitting  that  the  witness  will  so 
testify,  may  avoid  a  continuance  of  the 
case.  A  statement  that  the  party  ex- 
pects to  prove  all  the  allegations  in 
his  pleading  is  too  general.  Olds  v. 
Glaze,  7  Iowa  86;  Jackson  v.  Boyles, 
64  Iowa  428. 

Materiality.  —  The  affidavit  must 
show  that  the  facts  are  material  and 
relevant.  State  v.  Falconer,  70  Iowa 
416;  Finch  V.  Billings,  22  Iowa  228; 
State  V.  Bennett,  52  Iowa  724. 

Thus,  in  State  v.  Williams,  8  Iowa 
533,  the  court  said,  in  commenting  ad- 
versely on  the  defendant's  affidavit: 
"  It  was  necessary  for  the  defendant 
to  connect  the  testimony  expected  to  be 
given  by  the  absent  witness  with  the 
offense  with  which  the  defendant  was 
charged." 

The  court  will  not  presume  that  the 
testimony  will  have  any  more  rele- 
vancy to  the  issue  than  is  shown  by 
the  facts  stated  in  the  affidavit.  State 
V.  Falconer,  70  Iowa  416;  State  v. 
Clark,  69  Iowa  196. 


380 


Volume  5. 


6289.  ADJOURNMENTS.  6289. 

if  I  could  purchase  a  horse  from  Joseph,  and  between  eight  or  nine 
o'clock — nine  probably  —  near  nine,  I  left  his  house;  that  when  they 
came  to  my  barn  I  was  there  at  the  barn  and  was  preparing  to  go  to* 
Joseph  Dakin's,  getting  my  horse  ready  for  that  purpose,  and  that  my 
wife  was  there  with  me  at  the  time;  that  I  also  expect  to  prove  by 
said  Andrew  and  Ediuard  Dakin  that  as  they  were  approaching  my 
residence  on  the  evening  referred  to  they  met  the  deceased  {Stough) 
only  a  short  distance  from  my  residence;  that  said  Stough  was  on  foot 
going  in  a  direction  from  my  residence,  and  in  the  direction  in  which 
the  body  was  found  the  next  morning;  that  I  expect  to  prove  said 
facts  by  each  of  said  witnesses  and  do  not  know  of  any  other  witness 
or  witnesses  by  whom  I  can  prove  the  same  facts,^  except  that  I  can 
prove  by  my  wife  that  I  was  at  the  barn  when  they  came,  and  by 
Joseph  Dakin  and  his  wife  that  I  was  at  their  house;  that  I  expect  to 
prove  by  Joseph  Dakin  that  between  the  hours  of  eight  zxi^  nine  o'clock 
of  the  evening  of  the  night  on  which  John  K.  Stough  was  killed,  I  was 
at  his  house;  that  he  and  his  wife  had  retired  to  bed  before  I  arrived 
there;  that  I  called  him  up  and  I  conversed  with  him  a  few  minutes 
about  purchasing  a  horse  from  him,  and  then  left  about  nine  o'clock 
or  before.  That  I  expect  to  prove  by  said  Harriet  Dakin  that  she 
knew  my  voice  and  heard  me  call,  and  heard  me  speaking  with  her 
husband,  who  stood  in  the  door  with  the  door  open;  that  I  also  stood 
near  the  door;  that  it  was  about  nine  P.  m. 

That  I  am  advised  by  counsel  said  facts  are  material;  that  said  facts 
are  true,^  and  I  do  not  know  of  any  other  witnesses  by  whom  all  of 
said  facts  can  be  proved;  that  this  application  is  not  made  for  delay 
merely,  but  that  justice  may  be  done;  that  I  expect  to  be  fully  able 
to  procure  the  testimony  of  said  witnesses  by  their  personal  attend- 
ance or  by  their  depositions  by  the  next  term  of  this  court ;^  that^t 
has  been  impossible  for  me  since  I  learned  that  they  had  left  the 
county  to  procure  their  depositions,  and  that  I  do  not  know  at 
present  where  their  depositions  could  be  conveniently  taken,  nor  that 
they  could  be  taken  at  all  before  their  arrival  in  Kansas;  nor  am  I 
certainly  advised  as  to  the  particular  locality  where  they  will  go, 
except  that  it  is  understood  by  their  friends  that  they  have  gone  to 
Jewell  county,  Kansas. 

1.  No  Other  Witness  to  Prove  Same  believes  the  facts  to  be  true  to  which 
Facts. — The  affidavit  must  state  that  it  is  alleged  the  absent  witness  will 
the  affiant  "  knows  of  no  other  wit-  testify.  Miller's  Anno.  Code  Iowa 
ness  by  whom  such  facts  can  be  fully  (1890),  §  2750,  subd.  3.  See  also  j«/ra, 
proved."     Miller's   Anno.    Code    Iowa  note  2,  p.  342. 

(1890),  §  2750,  subd.  3;  Thompson  v.  3.  Belief  that  Testimony  can  be  Pro- 
Abbott,  II  Iowa  193;  State  v.  Williams,  cured.  —  The  affidavit  must  state  "facts 
8  Iowa  533.  See  also  supra,  note  2,  p.  showing  reasonable  grounds  of  belief 
343.  that  his  attendance  or  testimony  will  be 
In  Welsh  v.  Savery,  4  Iowa  241,  it  procured  at  the  next  term."  Miller's 
was  held  (Stockton,  J.,  dissenting)  Anno.  Code  Iowa  (1890),  §  2750,  subd. 
that  an  affidavit  concluding  with  the  i;  State  v.  Farrington,  90  Iowa  673. 
statement  that  affiant  knows  of  no  per-  See  also  supra,  note  3,  p.  347. 
son  by  whom  such  facts  can  be  "aj  A  mere  statement  of  belief  without 
fully  proved "  was  a  sufficient  com-  showing  facts  to  warrant  it  is  insuffi- 
pliance  with  the  statute.  cient.     State   v.   Rorabacher,   19    Iowa 

2.  Testimony  Believed  to  be   True.  —  154. 
The  affidavit  must  state  that  the  affiant 

881  Volume  5. 


6290.  CONTINUANCES  AND  6290. 

That  I  did  not  make  this  application  for  continuance  on  the  second 
day  of  the  term  because^  it  was  not  then  certain  that  the  cause  would 
be  tried  at  this  term,  and  for  the  reason  that  I  did  not  then  know  of 
the  absence  or  intention  to  be  absent,  of  the  four  witnesses  named  in 
my  original  affidavit;  that  after  the  determination  of  the  motion  for 
a  change  of  venue,  on  Saturday^  the  sixth  day  of  the  term,  I  sent  for 
my  attorneys  to  consult  with  them  in  reference  to  the  matter  of  ask- 
ing for  a  continuance  on  account  of  the  absence  of  said  witnesses 
and  other  matters  pertaining  to  my  defense,  when  I  learned  that  H. 
C.  Henderson  and  James  Allison,  my  attorneys,  who  have  had  principal 
charge  of  my  defense,  were  absent,  Mr.  Allison  procuring  affidavits 
to  support  the  change  of  venue,  and  Mr.  Henderson  in  attendance  at 
the  U.  S.  Circuit  Court  at  Des  Moines,  and  Mr.  Merriman,  my  other 
attorney,  who  has  had  very  little  to  do  with  my  defense  in  this  case, 
was  engaged  in  the  trial  of  a  cause  in  this  court,  and  was  unable  to 
give  any  attention  to  my  case.  I  had  no  other  attorneys  employed 
in  the  case,  and  was  unable  to  procure  the  preparation  of  a  motion 
and  affidavit  for  continuance  until  the  date  hereof,  and  that  I  have 
caused  said  application  to  be  made  as  soon  as  practicable  after  I 
learned  that  it  would  be  necessary  to  make  the  same;  that  I  sent  for 
my  attorneys  early  this  morning  and  informed  Mr.  Henderson,  who 
came  to  the  jail  to  see  me,  of  the  absence  of  said  witnesses,  and  the 
necessity  of  making  an  application  for  a  continuance,  and  the  same 
was  thereafter  made  as  soon  as  practicable. 

[John  N.  Dakin. 

Sworn  to  before  me  and  subscribed  in  my  presence  by  John  N. 
Dakin,  this  28th  day  of  October,  i878. 

George  Jones,  Clerk  of  District  Court.] 

Form  No.  6290.* 

(Precedent  in  State  v.  Painter,  40  Iowa  298.)^ 

1.  Excuse  for  Delay  in  Filing  Motion. —  Iowa  618;    Bays  v.  Herring,  51  Iowa 

"The    motion    must   be   filed    on    the  286;  Chicago,  etc.,  R.  Co.  v.  Heard,  44 

second  day  of  the  term  if  it  is  then  cer-  Iowa   358;    Lucas  v.  Casady,  12   Iowa 

tain  that  it  will  have  to  be  made  before  567,  holding  it  reversible  error  to  con- 

the  trial,  and  as  soon  thereafter  as  it  tinue  a  case  on  an  affidavit  defective  in 

becomes  certain  that  it  will  so  need  to  this  particular. 

be  made,  and  shall  not  be  allowed  to  be  If  the  motion  is  filed  during  the  term 
made  when  the  cause  is  called  for  trial,  and  it  does  not  appear  by  the  record  on 
except  for  cause  which  could  not,  by  what  day  of  the  term  it  was  filed,  it  will 
reasonable  diligence,  have  been  before  be  presumed  on  appeal  in  favor  of  the 
that  time  discovered;  and  if  made  after  ruling  of  the  court  denying  a  continu- 
the  second  day  of  the  term  the  affida-  ance  that  it  was  not  filed  in  time  where 
vit  must  state  facts  constituting  an  the  affidavit  alleges  no  excuse  for  de- 
excuse  for  the  delay  in  making  it.''  lay.  Woolheather  v.  Risley,  38  Iowa 
Miller's  Anno.  Code  Iowa  (1890),  486. 
g  2752.  2.  See  the  notes  to  Form  6289,  supra. 

For   cases   where    an   affidavit   filed  State  v.  Miller,  65  Iowa  60,  is  a  case 

after  the  second  day  of  the  term  was  where   an   affidavit  for  a  continuance 

held    defective    for    not    alleging    an  was  filed  by  the  prosecuting  attorney 

excuse    for   the   delay     see     State    v.  and  the  motion  properly  sustained. 

McDonough,  (Iowa,    1897)   73    N.    W.  8.  On  appeal  by  the  state  it  was  held 

Rep.  357;  Bell  V.  Chicago,  etc.,  R.  Co.,  to  be  error  to  refuse  a  continuance  until 

64   Iowa  321;    Randall   v.   Fockler,  52  the  next  day  on  this  affidavit. 

382  Volume  5. 


6290.  ADJOURNMENTS.  6290. 

State  of  Iowa,      ) 

r  SS 

Monona  County.  \ 

I,  C.  H.  Lewis,  on  oath,  depose  and  say  that  I  am  District  Attor- 
ney, J^h  Judicial  District,  lotva,  and  the  attorney  for  the  State  in  each 
of  the  above  entitled  actions.  Thaty.  C.  Hollister  Sind/ohn  Fowler 
are  material  witnesses  on  the  part  of  the  State,  without  whose  testi- 
mony I  cannot  safely  proceed  to  trial  in  said  actions,  or  either  of 
them. 

That  after  the  indictments  in  these  cases,  and  on  the  18th  day  of 
July,  1874,  I  procured  a  subpoena  to  be  issued  from  the  office  of  the 
Clerk  of  this  Court  for  said  witnesses  in  each  of  said  cases.  And 
that  on  the  18th  day  oi  July,  iB74,  the  said  subpcsnas  were  duly  and 
legally  served  upon  each  of  the  witnesses,  Hollister  and  Fo^vler,  at 
Harrison  county,  Iowa,  as  will  more  fully  appear  by  reference  to  the 
returns  on  the  subpoenas  filed  in  this  court  in  the  above  entitled  cases, 
to  which  reference  is  here  made. 

That  said  witnesses,  and  each  of  them,  have  failed  to  attend  upon 
this  court,  in  obedience  to  said  subpoenas.  That  said  witnesses,  and 
each  of  them,  now  reside  at  Missouri  Valley,  Harrison  county,  Iowa, 
distant  about  forty  miles,  and  that  said  witnesses  are  at  home, 
as  this  affiant  is  informed  and  believes.  And  that  their  attendance 
can,  as  I  believe,  be  had  at  this  term  of  court,  and  on  tomorrow 
morning,  by  attachment.  Though  I  have  no  positive  assurance  that 
said  witnesses  will  be  present  on  tomorrow,  or  at  this  term  of  this 
court. 

And  I  further  depose  and  say  that  said  witnesses  can  be  held  to 
testify  in  each  of  said  cases  at  the  next  term  of  this  court. 

And  I  further  state  that  I  expect  to  prove  by  the  witness  John 
Fowler  that  he  purchased  of  the  defendant,  Ed.  Lindley,  the  property 
described  in  the  indictments  herein.  That  he  purchased  the  said 
property  on  the  day  after  the  same  was  stolen.  That  said  property 
when  purchased  was  in  the  possession  of  the  defendant  Lindley,  and 
the  other  defendants  herein.  That  this  defendant  Lindley  had 
secreted  the  property  after  he  arrived  at  the  town  of  Missouri  Valley, 
in  Harrison  county,  where  said  Fowler  then  resided  and  was  engaged 
in  the  butcher  business.  And  that  said  Lindley  moved  the  cattle  from 
the  place  where  he  stole  the  same  to  the  town  of  Missouri  Valley  in 
the  night-time,  and  in  a  secret  manner. 

And  I  further  state  that  I  expect  to  prove  by  the  witness  J.  C.  Hol- 
lister that  he  came  by  purchase  into  the  possession  of  an  animal 
stolen  by  defendant  at  the  time  the  cattle  described  in  these  indict- 
ments were  stolen.  And  that  said  witness  will  identify  said  defend- 
ant as  the  party  who  had  said  animal  on  the  day,  or  soon  after,  said 
property  was  taken. 

And  I  further  state  that  I  believe  all  of  the  above  stated  facts  to 
be  true.  And  that  I  know  of  no  other  witness  by  whom  the  same 
can  be  fully  proved. 

C.  H.  Letvis. 

Sworn  to  before  me  and  subscribed  in  my  presence  by  C.  H.  Lewis^ 
this  21st  day  oi  July,  1S74. 

John  K.  McKaskey,  Clerk  of  District  Court. 
888  Volume  5. 


6291. 


CONTINUANCES  AND 


6291. 


Form  No.  6291.' 

(Precedent  in  State  v.  Maddox,  117  Mo.  670.)' 

In  the  Circuit  Court  of  Shelby  county,  Missouri^  April  term,  i89^. 


1.  Necessity  of  Oath  or  Affidavit.  —  A 

motion  to  continue  a  cause  on  the  part 
of  the  defendant  on  account  of  the 
absence  of  evidence  must  be  supported 
by  oath  or  affidavit.  Mo.  Rev.  Stat. 
(1889),  §4181. 

As  to  the  necessity  of  an  affidavit 
unless  the  state  consents  that  the  state- 
ment may  be  upon  oath  orally  see 
State  V.  Reilly,  4  Mo.  App.  394. 

By  Prosecuting  Attorney  in  Behalf  of 
State. — "If  the  application  for  a  continu- 
ance is  by  the  state,  the  prosecuting 
attorney  shall  state  in  writing,  under 
his  oath  of  office,  and  according  to  his 
best  information  and  belief,  the  same 
facts  required  to  be  stated  in  the  affida- 
vit of  the  defendant."  Mo.  Rev.  Stat. 
(1889),  §  4182. 

For  the  substance  of  an  affidavit  by 
the  prosecuting  attorney,  which  was 
held  to  be  insufficient  in  its  statement 
of  what  the  absent  witness  would  tes- 
tify to,  see  State  v.  Pinnell,  93  Mo.  480. 

2.  The  defendant  in  this  case  was  in- 
dicted for  robbery  in  the  first  degree 
and  convicted.  A  new  trial  was 
granted  for  refusing  a  continuance,  the 
court  remarking  that  "  the  defendant's 
affidavit  meets  every  requirement  of 
section  4181,  Revised  Statutes  1889." 
This  section  contains  almost  the  same 
provisions  as  the  section  prescribing  the 
requirements  of  affidavits  for  continu- 
ances in  civil  cases.  See  notes  to  Form 
No.  6272,  supra. 

Other  Approved  Forms.  —  In  State  v. 
Farrow,  74  Mo.  532,  the  defendant  was 
indicted  for  robbery,  and  it  was  held 
reversible  error  to  refuse  his  application 
for  a  continuance  on  November  14th, 
1881,  which  was  supported  by  an  affi- 
davit, omitting  caption,  signature  and 
jurat,  as  follows: 

"  That  he  cannot  safely  proceed  in 
the  trial  of  said  cause  in  the  absence  of 
the  following  witnesses,  who  are  absent 
without  connivance,  knowledge  or  con- 
sent, to  wit:  Henry  Baysinger,  Mrs. 
Henry  Baysinger,  Buck  Dareaux,  and 
Caleb  Berry;  that  Buck  Dareaux  re- 
sides in  Montgomery  county,  Caleb 
Berry  in  Audrain  county,  and  the  others 
in  Callaway  county,  Missouri;  that 
the  indictment  in  said  cause  was  only 
filed  herein  on  the  I2th  of  this  month 
and  found  at  present  term  of  this  court; 


that  he  had  a  subpoena  for  the  wit- 
nesses in  this  county  issued  and  deliv- 
ered to  the  sheriff;  that  he  has  not  had 
time  since  the  filing  of  said  indictment 
to  get  said  witnesses  from  Audrain  and 
Montgomery  county  here;  that  he  be- 
lieves he  would  prove  by  said  absent 
witnesses  that  defendant  was  at  Joseph 
Farrow's,  three  or  four  miles  off,  when 
the  alleged  offense  was  committed;  and 
he  further  says  that  such  statements  are 
true;  that  he  has  no  witness  present, 
nor  does  he  know  of  any  other  witness 
or  witnesses  by  whom  he  can  prove  the 
same  facts;  that  he  has  not  had  time  to 
procure  the  attendance  of  said  absent 
witnesses;  that  he  expects  to  have  them 
present  at  the  next  term  of  this  court; 
that  the  continuance  is  not  asked  for 
vexation  or  delay  merely,  but  in  order 
that  a  fair  trial  may  be  had,  and  com- 
plete and  substantial  justice  done;  that 
the  evidence  of  said  witnesses  is  mate- 
rial; that  he  cannot  prove  the  same 
facts  by  any  other  witness  whose  testi- 
mony can  be  procured  at  this  term  of 
court." 

In  State  v.  Bradley,  90  Mo.  160,  the 
defendant  was  charged  with  assaulting 
and  cutting  one  Petty  with  a  knife.  A 
new  trial  was  granted  because  of  a  re- 
fusal of  continuance  on  his  affidavit, 
omitting  caption,  signature  and  jurat, 
as  follows: 

"Thomas Bradley,  beingsworn,  states 
that  he  cannot  safely  go  to  trial  at  this 
term  of  court  for  the  want  of  material 
testimony  that  is  absent  without  his 
connivance,  or  approval,  and  that  this 
application  is  not  made  for  vexation  or 
delay,  but  for  the  purposes  of  justice, 
and  that  if  a  continuance  be  granted  him 
he  can,  as  he  verily  believes,  procure 
said  testimony  by  the  next  term  of  this 
court.  The  name  of  the  absent  witness 
is  Walter  Billings,  who  has,  up  to 
within  two  months,  lived  in  Greene 
county,  near  this  affiant;  at  that  time 
he  moved  into  the  city  of  Springfield, 
and  affiant  has  been  under  the  impres- 
sion all  the  time  that  he  still  lived  in 
said  city.  Affiant  caused  a  subpoena  to 
be  issued  for  him  a  few  days  ago,  and 
placed  same  in  the  hands  of  the  sheriff 
of  Greene  county,  and  verily  believed 
that  the  sheriff  would  find  and  serve 
him  immediately  with  said   subpoena, 


384 


Volume  5. 


6291. 


AD  JO  URNMENTS. 


6291. 


The  defendant,  Morgan  Maddox,^  comes  and  moves  the  court  to 
grant  him  a  continuance  in  this  cause  to  the  next  term  of  this  court, 
and  as  grounds  of  this  motion  states  the  following:  *  *  *2 

The  defendant  states  that  Malinda  Maddox,^  the  wife  of  the 
defendant,  Morgan  Maddox,  is  a  material  witness  on  behalf  of  the 
defendant,  Morgan  Maddox,  in  this  cause.  That  her  residence  is  at 
the  town  of  Huntington  in  Ralls  county,  Missouri,  where  she  now  is.^ 
That  on  the  night  of  the  twenty-fifth  day  of  August,  iS92,  the  said 
Malinda  Maddox  had  an  abortion  or  miscarriage  about  twelve  o'clock 
on  said  night.  She  then  had  a  severe  chill  and  her  temperature 
arose  to  one  hundred  and  five  degrees,  her  pulse  was  one  hundred  and 
fifty,  she  showing  and  having  all  the  symptoms  of  septicaemia,  result- 
ing from  the  absorption  of  a  putrid  foetus  and  its  membranes.  She 
is  now  confined  to  her  room,  and  nearly  all  the  time  in  her  bed, 
under  the  order  of  her  physician,  and  it  is  the  opinion  of  her  physi- 
cian, S.  Mattox,^  a  regular  registered  and  practicing  physician,  who 
is  now  attending  her,  and  who  has  been  attending  her  since  the 


but  on  yesterday  evening  affiant  was 
informed  by  the  sheriff  that  he  could 
not  find  said  Walter  Billings.  That  if 
the  said  witness  was  here  he  would 
testify  as  follows:  '  My  name  is  Walter 
Billings.  I  know  Arch  Petty  and  the 
defendant.  That  on  or  about  the  8th 
of  September,  1883,  I  was  present  at 
thi  barn  of  defendant  when  defendant 
and  Petty  had  a  difficulty.  I  was  stand- 
ing near  them.  They  came  walking 
through  the  barn;  the  defendant  was 
whittling  with  his  knife  on  a  small 
stick;  when  they  got  near  the  front 
part  of  the  barn,  I  learned  from  their 
conversation  that  they  were  quarrelling 
about  a  bill,  Petty  claiming  that  de- 
fendant owed  him  five  dollars  for  re- 
moving a  dead  horse — defendant 
claiming  that  the  contract  price  was 
two  and  one-half  dollars.  Petty  got 
very  angry  and  finally  caught  hold  of 
defendant  and  threw  him  around 
against  the  side  of  the  barn,  and  held 
him  there  with  his  left  hand,  which  was 
on  defendant's  coat  collar,  or  hold  of 
his  throat,  and  with  his  right  hand  he 
reached  back  to  his  hip  pocket  as 
though  he  was  reaching  for  a  pistol. 
Defendant  had  told  Petty  to  let  him  go, 
and  defendant  then,  with  his  knife  that 
was  still  open,  reached  round  and 
under  and  cut  Petty  on  his  right  arm.' 
Affiant  knows  that  said  absent  witness 
will  so  testify,  because  said  witness  has 
so  informed  affiant.  Affiant  knows  of 
no  witness  that  he  can  so  well  prove 
the  facts  above  set  forth  as  he  can  by 
the  said  Billings,  and  that  affiant  be- 
lieves said  testimony  to  be  true." 

For   the   substance  of  another  form 


held  good  see  State  v.   Lewis,   74  Mo. 
225. 

The  affidavit  which  was  set  forth  and 
approved  in  State  v.  Maguire,  69  Mo. 
197,  was  drawn  under  a  statute  differ- 
ing in  some  particulars  from  the  statute 
now  in  force,  and  omitted  some  of  the 
averments  which  would  now  be  neces- 
sary. 

1.  Who  xuay  Make  Affidavit.  —  An 
"oath  or  affidavit  of  the  defendant  or 
some  reputable  person  in  his  behalf"  is 
required.    Mo.  Rev.  Stat.  (1889),  §  4181^ 

2.  Here  followed  a  statement  as  a 
first  ground  for  continuance  that  one  of 
the  defendant's  counsel  could  not  be 
present  at  this  term  of  court,  etc.,  as 
shown  in  Form  No.  6262. 

S.  Name  and  Besidence  of  Witness.  — 
The  affidavit  must  give  the  name  of  the 
witness  and  "where  he  resides  or  may 
be."  Mo.  Rev.  Stat.  (1889),  §  4181.  See 
also  supra,  note  I,  p.  334.  In  Stall 
V.  Mitchell,  98  Mo.  657,  the  affidavit 
was  criticised  because  it  did  not  give 
the  name  of  the  witness,  although  it 
stated  that  his  name  was  unknown. 
And  in  State  v.  Underwood,  76  Mo. 
630,  it  was  held  defective  because,  al- 
though it  disclosed  that  the  defendant 
knew  the  names  of  the  witnesses,  it 
failed  to  give  the  name  of  any  of  them, 
and  because  it  did  not  state  the  resi- 
dence of  the  witnesses  or  that  their 
residence  was  unknown. 

4.  The  affidavit  was  accompanied  by 
a  certificate  of  this  physician,  which 
will  be  found  in  Form  No.  6305.  That- 
sickness  is  best  established  by  the  affi- 
davit of  a  physician  see  Smith  v.  Smith, 
132  Mo.  086. 


5  E.  of  F.  P. —23 


885 


Volume  5. 


6291.  CONTINUANCES  AND  6291. 

time  of  the  said  abortion,  that  it  would  not  be  safe  for  her,  under 
the  most  favorable  circumstances,  to  leave  her  home  under  six  weeks 
from  the  time  said  abortion  took  place.  And  this  affiant  says  her 
condition  is  such  that  it  would  not  be  safe,  under  the  most  favorable 
circumstances,  for  her  to  leave  her  home  and  be  present  at  the  trial 
of  this  cause  under  six  weeks  from  the  time  said  abortion  took  place. 

This  affiant  further  says  that  said  Malinda  Maddox  has  been  so  ill 
ever  since  said  abortion  that  she  could  not  give  her  deposition  in 
this  cause  without  endangering  her  life.  That  this  cause  was  set  for 
trial  in  this  court  in  November,  iS91,  at  the  October  term,  i8Pi,  of  this 
court,  on  the  twenty-third  d^y  of  November,  iS91. 

That  this  defendant  caused  a  subpoena  to  be  issued  from  the  office 
of  the  clerk  of  this  court  on  the  thirteenth  day  of  November,  iS91,  for 
said  Malinda  Maddox,  and  placed  said  subpoena  in  the  hands  of  the 
sheriff  of  Ralls  county,  Missouri,  for  service  on  said  witness. 

That  said  subpoena  was  duly  served  on  said  Malinda  Maddox,  during 
said  trial,  by  the  said  sheriff  on  the  twenty-fifth  day  of  November, 
iS91,  in  Ralls  county,  Missouri,  and  that  said  Malinda  Maddox  obeyed 
said  subpoena  and  appeared  in  this  court  at  said  time  in  this  cause, 
and  after  a  severance  as  to  the  defendants,  Maddox  and  Whitecotten, 
testified  on  behalf  of  the  co-defendant,  Frank  Whitecotten,  on  his  trial 
^at  said  term  of  this  court,  and  that  the  trial  of  this  cause  had  been  by 
this  court  regularly  continued  from  the  said  last  mentioned  term 
until  this  time,  and  it  was  the  duty  of  said  witness  under  the  statute 
to  attend  as  a  witness  on  behalf  of  this  defendant  on  the  trial  of  this 
cause  at  the  time  without  further  subpoena.^ 

1.  Diligence  to  Obtain  Testimony. — The  For  criminal  cases  where  the  applica- 

afBdavit  must  show  due  diligence,  and  tion  was   properly  denied  for  want  of 

state  what  diligence  has  been  used  to  sufficient  diligence  see  State  v.  Howell, 

obtain  the  testimony.     Mo.  Rev.  Stat.  117  Mo.  307.  where  the  affidavit  is  given 

(1889),  §4181.    See  j«//-a,  note  5,  p.  339.  substantially  in  full;  State  v.  Tatlow, 

The  averments  of  the  affidavit  must  136  Mo.  682;  State  v.  Murphy,  46  Mo. 
be  construed  most  strictly  against  the  430;  State  v.  Mitchell,  98  Mo.  657, 
affiant.  Langener  v.  Phelps,  74  Mo.  where  the  affidavit  is  given  in  full; 
190,  where  the  affidavit,  pronounced  State  v.  Hays,  24  Mo.  369;  State  v.  Car- 
insufficient,  was  given  in  full,  the  court  ter,  98  Mo.  176;  State  z'.  Banks,  118  Mo. 
saying:  "  Not  a  particle  of  diligence  117;  State  v.  Dusenberry,  112  Mo.  277; 
was  used  by  the  plaintiff  (applicant).  State  v.  Burns,  54  Mo.  274;  State  v. 
The  witness  lived  in  a  foreign  jurisdic-  Bryant,  93  Mo.  273;  State  v.  Lange,  59 
tion,  yet  no  effort  was  made  to  be  ready  Mo.  418,  where  the  affidavit  is  given  in 
for  trial  by  taking  his  deposition;  nor  full;  State  v.  Lawther,  65  Mo.  454;  State 
when  he  came  within  the  jurisdiction  of  jy-Whitton,  68  Mo.  91;  State  v.  Kring,  74 
the  court  was  any  subpoena  served  Mo.  612;  State  v.  Emory,  79  Mo.  461; 
upon  him."  State  v.  Wilson,  85   Mo.   134;  State  v. 

For  civil  cases  where  sufficient  dili-  Good,  132  Mo.  114;  State  v.  Pagels,  92 

gence  was  wanting  see  English  v.  Mul-  Mo.  300;  State  v.  White,   126  Mo.  591, 

lanphy,  I  Mo.  780;  Hamiltonsf.  Moody,  where  the  affidavit  stated  that  a  sub- 

21  Mo.  79;   Cline  v.   Brainard,  28  Mo.     poena  was  served  on  the  " day  of 

341;  States'.  Bennett,  31  Mo.  462;  Harris  April."      "For  aught    that   appears," 

V.  Powell,  56  Mo.  App.  24;  Schultz  v.  said  the  court,  "it  may  have   been  on 

Moon,  33  Mo.  App.  329;  Pier  v.  Hein-  the  very  day  of  the   trial  or  the  day 

richoffen,    52    Mo.    333;    Wood    v.   St.  before." 

Louis,  etc.,  R.  Co.,  58  Mo.  log,  where  For  a  case  where  the  affidavit  dis- 

the  affidavit  is  given  in  full.     Leabo  v.  closed  sufficient  diligence  see  State  v. 

Goode,  67  Mo.   126;  Blair  v.  Chicago,  Walker,  60  Mo.  274. 

etc.,  R.  Co.,  89  Mo.  383.  On  a  second  application,  on  account 

886  Volume  5. 


6291.  AD  JO  URNMENTS.  6291. 

That  said  Malinda  Maddox  will  testify  on  the  trial  of  this  cause,  if 
present,  as  follows:^  "I  am  the  wife  of  the  defendant  J/^r^a«  J/a^- 
dox^  and  was  his  wife  on  the  twenty-first  ^?Ly  ol  December,  iS90,  at  the 
time  of  the  alleged  robbery  of  Z<f/a«^/J/r^/r^,  and  was  living  with 
said  Maddox  as  his  wife  at  his  home  in  the  town  oi  Huntington,  Mo., 
about  one  and  a  half  miles  from  the  place  of  said  alleged  robbery." 

That  she  was  at  home  all  of  the  afternoon  and  evening  and  night 
of  said  December  21,  iS90. 

That  this  defendant,  at  the  hour  of  six  o'clock  in  the  evening  of 
said  December 21,  iS90,  was  present  at  his  and  her  home  in  said  town 
of  Huntington,  and  took  supper  there  shortly  after  said  hour,  and  that 
said  Morgan  Maddox  remained  at  their  said  home  from  said  hour  of 
six  o'clock  on  said  evening  until  the  hour  of  «^^/ o'clock  on  the  night 
of  sa.\d  December  21,  \2>90,  3.X.  which  last  mentioned  ixvc^t.  Maje  Mad- 
dox announced  to  the  witness  and  said  Morgan  Maddox,  at  their  said 
home,  that  Leland McElroy  had  been  robbed  on  said  night,  except 
for  a  space  of  time  not  exceeding  twenty  minutes,  and  that  during  said 
twenty  minutes,  said  Morgan  Maddox  was  going  to  attend  to  their 
horses. 

That  said  Morgan  Maddox  was  not  absent  from  said  house  longer 
than  said  space  of  tiventy  minutes  from  said  hour  of  six  o'clock  until 
after  said  Morgan  Maddox  ^as  notified  at  his  home  of  said  robbery. 

That  the  testimony  of  Leland McElroy  and  Mary  McElroy,  who  are 
in  attendance  on  this  court  as  witnesses  for  the  prosecution  in  this 
cause,  will  be  that  said  robbery  of  said  Leland  McElroy,  with  which 
said  defendant  stands  charged,  occurred  between  the  hour  of  six 
o'clock  and  «^^/ o'clock  on  said  December  21,  i890,  in  the  evening  of 
said  day,  about  one  and  a  half  miles  from  the  said  home  of  the  said 
defendant.  / 

That  the  testimony  of  said  Malinda  Maddox,  as  above  set  forth, 
tends  to  prove  and  does  prove  a  complete  alibi  for  this  defendant  as 
to  said  robbery. 

of  the  continued  absence  of  a  witness  same  particularity  as  was  necessary  be- 

who  had  been  subpoenaed  prior  to  the  fore  the  supreme  court  ruled  that  the 

first  application,  the  affidavit  ought  to  state  could  not  deprive  the  defendant 

show    that  the   applicant   has   applied  of  acontinuance  by  admitting  what  the 

for  an  attachment  to  compel   the   at-  absent  witness  will  testify  to.     State  v. 

tendance  of  the  witness.     State  v.  An-  Strattman,  loo  Mo.  540,  where  the  sub- 

drews,  76  Mo.  loi.  stance  of  the  insufficient  affidavit  is  set 

1.  Statement    of    Expected    Testimony  forth, 

and  Materiality  Thereof.  —  The  affidavit  A  mere  statement  that  the  evidence 

must  show  the  materiality  of   the  ex-  is    material    is    insufficient.     State   v. 

pected  testimony   and   what   facts  the  Strattman.  100  Mo.  540;  State  ».  Pagels, 

applicant    believes    the    witness     will  92  Mo.  300. 

prove.     Mo.   Rev.  Stat.  (1889),  ^  4181.  If  the  evidence  will  not  be  relevant 

See  also  supra,  note  7,  p.  335  et  seq.  except  on  the  issue  of  insanity,  the  affi- 

"Such  an  application  must  be  drawn  davit  must  state  that  insanity  is  a  pro- 
more  carefully  than  a  pleading  and  posed  defense.  State  v.  Pagels,  92  Mo. 
must  state  the  facts  relied  on  specifi-  300;  State  v.  Bryant,  93  Mo.  273;  State 
callyand  not  mere  conclusions  of  law."  v.  Mitchell,  98  Mo.  657. 
State  V.  Good,  132  Mo.  114.  See  also  If  the  facts  stated  show  that  the  evi- 
Sute  V.  Hilsabeck,  132  Mo.  357,  and  dence  would  be  immaterial  or  irrelevant, 
particularly  State  v.  Pinnell,  93  Mo.  the  application  will  be  denied.  State  v. 
480.     It  must  state  the  facts  with  the  Dale,  89  Mo.  579. 

887  Volume  5. 


6291. 


CONTINUANCES  AND 


6291. 


That  the  testimony  of  said  Leland McElroy,  as  the  prosecuting  wit- 
ness ia  this  cause,  will  be  that  said  Morgan  Maddox  was  present  at 
the  time  and  place  of  said  robbery,  participating  therein 

That  the  testimony  of  Malinda  Maddox,  as  above  set  forth,  is 
material  to  the  issue  of  this  cause  on  behalf  of  the  defendant,  Mor- 
gan Maddox. 

That  this  defendant  has  used  due  diligence  to  obtain  the  testimony 
of  said  Malinda  Maddox,  on  this  trial  of  this  cause.  That  the  testi- 
mony of  said  witness  can  be  procured  on  the  trial  of  this  cause  by 
and  at  the  next  term  of  this  court, ^  and  that  said  Malinda  Maddox 
will  prove  facts  as  above  set  forth,  and  this  defendant  believes  said 
facts,  as  above  set  forth,  as  said  witness's  testimony  are  true,^  and 
that  this  defendant  is  unable  to  prove  said  facts  by  any  other  witness 
whose  testimony  can  be  as  readily  procured,^  and  that  said  witness, 
Malinda  Maddox,  is  not  absent  by  the  connivance,  procurement  or 
consent  of  this  defendant,"*  and  that  said  Malinda  Maddox  is  absent 
from  this  trial  solely  because  said  witness,  Malinda  Maddox,  is  sick 
and  unable  to  attend  at  the  trial  of  this  cause,  and  that  this  appli- 
cation for  continuance  is  not  made  for  vexation  or  delay  merely,  but 
to  obtain  substantial  justice  on  the  trial  of  this  cause. ^ 

Morgan  Maddox. 
State  of  Missouri,  ) 
County  of  Shelby.  \ 

Morgan  Maddox,  the  above  named  defendant,  being  duly  sworn,  on 


1.  Probability  of  ProcTiring  Testimony. 

—  The  affidavit  must  show  "  the  proba- 
bility of  procuring  his  testimony  and 
within  what  time."  Mo.  Rev.  Stat. 
(1889),  §  4181.  See  also  supra,  note  3, 
p.  347.  This  requirement  was  enforced 
in  State  v.  Wilson,  85  Mo.  134,  and  State 
V.  Aired,  115  Mo.  471. 

An  affidavit  stating  that  the  witness 
was  "  late  of  this  state,  and  now  out  of 
the  state,  and  will  in  all  probability  be 
back,"  was  insufficient.  Freligh  v. 
Ames,  31  Mo.  253. 

2.  Belief  that  Testimony  is  True.  —  The 
affidavit  must  state  that  the  applicant 
believes  the  facts  to  which  the  absent 
witness  will  testify  are  true.  Mo.  Rev. 
Stat.  (1889),  §  4181.  See  also  supra, 
note  2,  p.  342.  For  want  of  this  aver- 
ment affidavits  were  held  defective  in 
State  V.  Dusenberry,  112  Mo.  277;  State 
V.  Bryant,  93  Mo.  273;  State  v.  Aired, 
115  Mo.  471;  State  v.  Underwood,  76 
Mo.  630.  State  v.  Maguire,  69  Mo.  198, 
holding  that  this  averment  was  un- 
necessary where  the  defendant  had 
pleaded  not  guilty,  was  decided  before 
the  enactment  of  the  provision  above 
cited. 

3.  Unable  to  Prove  Same  Facts  by 
Others.  —  The  affidavit  must  state  that 
the  defendant  "is  unable  to  prove  such 
facts  by  any  other  witness  whose  testi- 


mony can  be  as  readilv  procured." 
Mo.  Rev.  Stat.  (1889),  §  4'i8l.  State  v. 
Aired,  115  Mo.  471;  State  v.  Lett,  85 
Mo.  52;  State  v.  Heinze,  45  Mo.  App. 
403.     See  also  supra,  note  2,  p.  343. 

In  Freleigh  v.  State,  8  Mo.  606,  the 
affidavit  stated  that  there  was  no  other 
witness  in  attendance  by  whom  the 
same  facts  could  be  established,  and 
was  held  insufficient  for  omitting  to 
aver  that  the  facts  could  not  be  proved 
by  any  other  person  whose  attendance 
could  have  been  procured. 

4.  Witness  Not  Absent  by  Connivance, 
etc.  —  The  affidavit  must  state  "that 
the  witness  is  not  absent  by  the  con- 
nivance, procurement  or  consent  of  the 
defendant."  Mo.  Rev.  Stat.  (1889), 
§  418 1 ;  State  v.  Bryant,  93  Mo.  273. 
See  also  supra,  note  5,  p.  345, 

5.  Application  Not  Made  for  Delay,  etc. 
—  The  affidavit  must  state  "that  the 
application  is  not  made  for  vexation  or 
delay  merely,  but  to  obtain  substantial 
justice."  Mo.  Rev.  Stat.  (1889),  §  4181; 
State  V.  Heinze,  45  Mo.  App.  403. 
Barker  v.  Patchin,  56  Mo.  241,  where 
the  court  said:  "  An  affidavit  for  con- 
tinuance ought  positively  to  negative 
an  inference  that  it  is  made  for  vexa- 
tion or  delay."  See  also  supra,  note  7, 
P-  347. 

18  Volume  5. 


6292.  ADJOURNMENTS.  6292. 

his  oath  states  that  the  facts  stated  in  the  foregoing  application  for 
a  continuance  are  true. 

Morgan  Maddox. 
Subscribed  and  sworn  to  before  me  this  September  5, 1 8S^. 

Frank  Dimmitt^  Clerk. 

Form  No.  6292.1 

(Precedent  in  State  v.  Metcalf,  17  Mont.  420.)' 

[State  of  Montana,  ) 

County  of  Beaverhead.  \ 
State  of  Mo^nt^^na^  plaintiff ,  \  j^.^^^.^^  ^^^^^^ 

Pa^/J/./^f/Tdefendant.   J  ^i/"^>^  Judicial  District.] 

Paul  Metcalf,  being  first  duly  sworn,  on  oath  deposes  and  says: 
That  he  is  the  defendant  in  the  above  entitled  cause.  That  the 
information  in  said  cause  was  filed  in  this  court  charging  affiant  with 
the  crime  of  murder  on  the  23d  day  of  February,  iS95,  and  that 
affiant  was  arrested  in  the  state  of  Missouri  on  the  27tA  day  of 
December,  i895,  and  was  brought  to  Beaverhead  county,  Montana, 
immediately  thereafter  and  lodged  in  the  county  jail  of  said  county, 
where  he  has  ever  since  been,  and  is  now,  confined.  That  ever  since 
affiant's  incarceration  in  jail,  through  the  efforts  of  his  counsel  and 
friends,  he  has  been  preparing  for  this  trial,  as  hereinafter  detailed. 
That  notwithstanding  the  efforts  of  defendant  and  his  friends  to  be 
prepared  for  said  trial,  he  cannot  safely  go  to  trial  at  this  term  for 
the  following  reasons,  to  wit,  the  absence  of  witnesses  and  evidence 
material  to  defendant,  and  which  defendant  has  been  unable  to  pro- 
cure at  this  term  of  the  court.  That  Alden  Harness  is  a  witness 
material  to  defendant.  That  defendant  could  prove  by  said  Harness, 
if  present  as  a  witness,  that  the  deceased,  Frank  Hunter,  was  killed 
at  his  saloon,  at  Medicine  Lodge,  in  Beaverhead  county,  on  the  after- 

1.  In  Civil  Cases. —  Mont.  Code  Civ.  cause  therefor."    Section  2011  provides 

Proc.   (1895),  ^  I03g,   reads    in    part  as  that  "  any  cause  which  would  be  consid- 

follows:   "  A  motion  to  postpone  a  trial  ered  a  good  one  for  a  postponement  in 

on  grounds  of  the  absence  of  evidence  a  civil  case  is   sufficient  in  a  criminal 

shall    only    be    made    upon     affidavit  case." 

showing  materiality    of   the    evidence  By  the  State. — Section    2012,    Mont, 

expected   to  be   obtained  and   that  due  Pen.  Code  (1895),  provides   that    "the 

diligence  has  been  used  to  procure  it.  state  may  obtain  a  postponement  for  the 

The  court  may  also  require  the  moving  same    reasons     *  *  *     as   the   defend- 

party   to  state   upon  aflidavit  the  evi-  ant  and    be   subject   to  the   same    re- 

dence    which    he   expects   to   obtain  "  strictions;  the  county  attorney,  or  any 

Rule  No.  12  of  the   district  court  (4th  one   acquainted    with    the   facts,    may 

Jud.    Dist.)   provides  that   "  the  party  make  the  proper  aflSdavit." 

applying  for  a  continuance  shall  state  2.     It   was    held    that   the    showing 

in  the  affidavit  the  names  of  the  wit-  made  by  the  following  affidavit  entitled 

nesses  and  the  evidence  he   expects  to  the   defendant   to  a  continuance,    and 

obtain,    otherwise    the    affidavit    and  the  order  of  the  court  denying  his  ap- 

motion  shall  be  overruled."  plication  therefor  was  error.     For  the 

In  Criminal  Cases  —  By  the  Accused. —  requisites   of   affidavits  generally    and 

Mont.    Pen.    Code  (1895),  ^  2010,  pro-  cross-references    to   proper    forms    of 

vides  for  continuances  by  the  defend-  affidavits  under  various  circumstances 

ant  filing  his  aflSdavit  "  showing  good  see  the  notes  to  Form  No.  6272,  supra. 

389  Volume  5. 


6292.  CONTINUANCES  AND  6292. 

noon  of  August  12,  i894,  by  affiant.  That  affiant  and  said  Harness 
earlier  in  the  day  had  been  to  said  saloon,  and  in  company  with  other 
persons  there  present  had  taken  several  drinks  of  whisky  or  other 
liquor.  That  this  affiant  and  said  Harness  had  left  the  saloon 
together,  and  parted  from  said  Hunter  without  any  difficulty.  That 
after  affiant  and  said  Harness  had  been  gone  some  time,  affiant  dis- 
covered that  he  had  left  his  gloves  at  said  saloon,  and  proposed  to 
return  and  get  them.  That  said  Harness  and  this  affiant,  in  com- 
pany, and  on  horseback,  returned  to  said  saloon,  and  dismounted 
and  entered  the  same.  That  Metcalf  was  a  little  in  advance  of  and 
to  the  right  of  said  Harness  as  they  entered  into  said  saloon,  and 
that  they  passed  one  person,  called  ^'-  Irish  Jack"  sitting  on  or  near 
the  saloon  doorsteps.  That  no  one  was  in  the  saloon  when  said  Met- 
calf and  Harness  entered  except  Hunter.  That  upon  said  Hunter 
seeing  Metcalf  enter,  and  when  said  Metcalf  was  a  few  feet  within 
said  saloon,  and  three  or  four  feet  from  the  front  door,  Hunter  said 
to  Metcalf,  "  Get  out  of  my  saloon,  or  I  will  kill  you,  you  son  of  a 
bitch ;"  to  which  Metcalf  answered  and  said,  "  I  want  my  gloves;  that 
is  all  I  want."  That  as  Hunter  spoke  to  Metcalf,  Hunter  started  to 
go  behind  the  bar  in  said  saloon,  and  in  doing  so  was  facing  rather 
towards  Metcalf  and  the  front  of  the  building.  That  Hunter  spoke 
in  a  loud,  angry  and  very  threatening  manner  to  Metcalf,  and  was  in 
the  act  of  reaching  under  the  bar,  where  he  always  kept  a  revolver 
or  pistol,  and  at  the  same  time  was  watching  said  Metcalf,  and  was 
slightly  stooping,  and  watching  Metcalf,  with  his  head  above  the 
counter.  That  Hunters  manner  was  extremely  threatening  and 
menacing;  and  that  while  said  Hunter  was  advancing  towards  said 
Metcalf,  and  reaching  in  the  direction  of  his  pistol,  said  Metcalf  fired, 
hitting  said  Hunter.  That  no  other  person  was  in  said  saloon,  or 
within  sight  of  the  act,  or. saw  the  shooting,  than  said  Harness  and 
the  affiant,  during  all  of  this  time.  That  said  Harness  would  swear  he 
was  near  Metcalf,  a  little  to  Metcalf  s  left  apd  rear,  but  in  full  view 
of  both  Hunter  and  Metcalf.  That  said  Harness  would  swear  that 
he  and  this  affiant  both  knew  Hunter  kept  a  pistol  at  the  place  under 
the  bar  to  which  Hunter  was  advancing,  and  for  which  he  was  reach- 
ing when  he  was  shot.  That  said  Harness  would  further  swear  that  he 
knew  the  character  of  Hunter  for  peace  and  quiet,  and  that  he  was 
a  bad  character;  very  quarrelsome  and  dangerous.  That  said  Har- 
ness would  further  swear  that  Hunter  began  the  difficulty  with  Met' 
calf  and  was  distant  from  him  only  H  to  16  feet  when  he  was  shot 
by  Metcalf,  and  was  advancing  towards  Metcalf  and  towards  his 
(^Hunter' s^  pistol.  That  said  Harness  would  further  swear  that  he 
had  known  Hunter  for  some  considerable  time  prior  to  the  shooting. 
That  said  Hunter  was  unfriendly  towards  affiant,  and  that  on  several 
occasions  said  Hunter  had  said  to  Harness  that  he  (^Hunter^  wouM 
kill  Metcalf,  and  that  prior  to  the  shooting  of  said  Hunter  said  Har- 
ness had  communicated  to  this  affiant  the  threats  Hunter  had  made  to 
kill  affiant.  That  after  the  said  shooting  the  said  Harness  left  Mon- 
tana with  affiant  and  was  present  with  affiant  at  Metlins  ranch  a 
short  time  after  the  killing,  and  affiant  says  he  cannot  prove  the 
foregoing  by  any  other  witness.     That  on  the  night  after  the  killing 

390  Volume  5. 


6293.  ADJOURNMENTS.  6293. 

said  Harness  and  this  affiant  left  the  state  of  Montana.  That  as  soon 
as  affiant  was  charged  and  arraigned  for  the  killing  of  ^««/^/-,  through 
the  aid  of  affiant's  brothers  and  his  attorneys,  he  began  inquiries  to 
ascertain  the  whereabouts  of  said  Harness,  and  on  or  about  May 
25th  this  affiant,  through  his  brother  Theodore  Metcalf,  learned  for 
the  first  time  that  said  Alden  Harness  was  in  or  near  the  town  of 
Horton,  Brown  county,  state  of  Kansas,  and  that  said  Harness's  depo- 
sition could  be  taken  in  said  town  and  county;  and  relying  upon 
said  statement  and  information,  the  facts  were  given  to  affiant's 
counsel  and  steps  were  taken  to  procure  the  deposition  of  said  Har- 
ness  before  the  clerk  of  the  District  Court  of  Brown  county,  state  of 
Kansas,  and  on  the  28th  day  of  May,  i&95,  notice  to  take  said  depo- 
sition was  served  on  the  county  attorney  of  Beaverhead  county, 
Montana,  with  interrogatories  attached  thereto.  A  copy  of  same  is 
hereto  attached  and  made  a  part  of  this  affidavit.  That  said  notice 
provided  for  the  taking  of  said  deposition  on  the  8th  day  of  June, 
\W5.  That  said  deposition  has  not  as  yet  arrived,  and  that  affiant 
cannot  state  positively  whether  said  deposition  has  been  taken,  but 
affiant  has  expected  the  same  to  arrive  in  time  for  this  trial,  but 
whether  it  has  been  taken  or  will  arrive  in  time  for  trial  at  this  term 
affiant  cannot  state.  The  last  information  had  from  the  officer  desig- 
nated to  take  said  deposition  was  that  the  witness  Harness  had  not  been 
found  by  said  officer,  so  that  his  deposition  could  not  be  taken,  but 
affiant  says  that  if  this  cause  is  continued  to  the  next  term  of  this  court 
affiant  verily  believes  that  he  can  have  the  deposition  of  said  Har- 
ness, or  have  him  present  in  person  as  a  witness.  That  affiant  also 
secured  a  subpoena  for  said  Harness  to  be  placed  in  the  hands  of  the 
sheriff  of  Beaverhead  county  for  service  if  said  Harness  should  return 
or  be  found  in  this  county,  and  the  same  has  been  returned  "not 
found."  That  this  affidavit  is  not  made  for  delay  merely,  but  is  made 
in  good  faith,  that  affiant  may  have  a  fair  trial  and  that  justice  may 
be  done. 

{Paul  Metcalf. 

Subscribed  and  sworn  to  before  me  this day  of ,  i8 — . 

Calvin  Clark,  Clerk  of  the  District  Court.] 

Form  No.  6293. 

(Precedent  in  Beatrice  Sewer  Pipe  Co.  v.  Erwin,  30  Neb.  87.)' 

[State  of  Nebraska,  \ 
County  of  Gage.      \  ^^' 

Thomas  Erwin,  plaintifif,  ) 

against  \  Affidavit  for  Continuance. 

Beatrice  Sewer  Pipe  Company,  defendant.  ) 
State  of  Nebraska,  \       -, 
County  of  Gage.      \  ^^'J 

R.  S.  Bibb,  being  first  duly  sworn,  on  oath  states  that  he  is  the 
attorney  for  the  defendant  above  named.^     Affiant  further  states  that 

1.  It  was  held  reversible  error  to  re-    affidavit  ought  to  be  made  by,  or  be  sup- 
fuse  a  continuance  on  this  affidavit.  ported  by  the  affidavit  of,  the  person 
8.  Who    11U17    Make    Affidavit.  —  The     who  has  knowledge  that  the  absent  wit- 

881  Volume  5. 


6293. 


CONTINUANCES  AND 


6293. 


said  defendant  is  a  corporation  organized  under  the  laws  of  the 
state  of  Nebraska,  and  doing  business  in  the  city  of  Beatrice,  Gage 
county,  in  said  state,  said  business  being  the  manufacturing  of 
tiling,  sewer  pipes,  brick,  etc.;  that  said  defendant  cannot  safely 
proceed  to  trial  in  the  above  entitled  cause  at  the  present  term  of 
court  on  account  of  the  absence  of  one  Charles  Huggins,^  a  material 
and  important  witness  on  the  part  of  the  said  defendant,  and  that 
said  witness  is  now  a  resident  of  the  state  of  California,^  the  exact 
place  in  California  where  said  witness  is  residing  being  unknown  to 
affiant,  although  he  has  made  diligent  inquiries  in  the  endeavor  to 
find  out  the  post-office  address  of  said  Charles  Huggins,  as  have  also 
the  officers  of  said  defendant;  that  said  Charles  Huggins  formerly 
resided  in  the  city  of  Beatrice,  Gage  county,  Nebraska,  but  left  for 
California  before  the  commencement  of  this  action.  That  the  said 
defendant  expects  to  prove  by  the  said  Charles  Huggins  (who  is  the 
pressman  referred  to  in  plaintiff's  petition)  that^  on  or  about  the  5th 


nesswill  testify  as  stated.  Williams  v. 
State,  6  Neb.  334.  See  also  supra,  note 
3.  p.  317,  note  I,  p.  332. 

1.  The  name  and  residence  of  the  wit- 
ness should  be  stated  if  known.  See 
Polin  V.  State,  14  Neb.  540;  Comstock 
V.    State,    14   Neb.    205;  supra,    note  i, 

P-  334- 

2.  Expected  Testimony  and  Materiality 
Thereof.  — The  facts  to  which  the  absent 
witness  will  testify  must  be  stated. 
Farmers',  etc.,  Bank  v.  Berchard,  32 
Neb.  785;  Williams  v.  State,  6  Neb.  334. 
See  also  Hair,  v.  State,  14  Neb.  503. 
And  it  must  appear  or  be  shown  by  a 
proper  statement  that  such  facts  are 
material  and  admissible.  Burgo  v. 
State,  26  Neb.  639;  Clark  v.  Mullen,  16 
Neb.  481;  Polin  v.  State,  14  Neb.  540; 
Farmers',  etc..  Bank  v.  Berchard,  32 
Neb.  785.     See  also  supra,  note  7,  p.  335. 

Form  of  Affidavit  Held  Insufficient.  — 
In  Burgo  v.  State,  26  Neb.  640,  where 
the  defendant  was  prosecuted  for  as- 
sault with  intent  to  kill  and  his  defense 
was  insanity,  the  following  affidavit  for 
continuance,  omitting  the  formal  parts, 
was  held  insufficient  for  the  reason, 
among  others,  that  it  did  not  allege  that 
the  defendant  at  the  time  of  committing 
the  act  was  unable  to  distinguish  right 
from  wrong  in  regard  to  that  particular 
act.  "  The  affiant.  Peter  Benjamin 
Burgo,  says  that  he  is  not  ready  for  trial 
at  this  term  of  the  court,  because  of  the 
absence  of  the  following  witnesses 
[naming  them],  which  said  witnesses 
all  live  out  of  this  state,  and  who  sev- 
erally reside  at  and  in  the  states  par- 
ticularly and  specially  stated  in  the 
affidavit  of  this  affiant's  attorney, 
Charles  Offutt,   filed    herein.     Affiant 


says  that  he  can  prove  by  each  of  the 
said  witnesses  that  this  affiant  has  suf- 
fered from  hereditary  insanity,  to  a 
greater  or  less  extent,  all  through  his 
life,  and  that  he  inherited  the  same 
from  his  mother,  who  was  so  insane 
for  more  than  twenty  years  next  before 
her  death,  which  occurred  five  years 
ago,  that  she  was  unable  to  recognize 
any  person  related  to  or  previously 
known  to  her;  that  for  many  years  be- 
fore the  twenty  years,  at  which  she  be- 
came so  insane  as  aforesaid,  she  was 
subject  to  temporary  fits  of  insanity, 
during  which  she  did  not  know  what 
she  was  doing,  and  did  not  understand 
either  the  legal  or  moral  effect  of  her 
acts;  that  at  said  time  his  mother  at- 
tempted suicide.  Affiant  further  says 
that  during  all  his  life,  or  the  greater 
part  thereof,  he  has  lived  outside  the 
state  of  Nebraska,  and  has  only  re- 
cently come  to  live  in  the  city  of  Omaha; 
that  he  knows  no  one  in  the  city  of 
Omaha  who  will  testify  to  the  aforesaid 
facts,  or  any  part  thereof,  and  does  not 
know  any  one  in  the  said  city  who 
knows  this  affiant  sufficiently  well  to 
be  able  to  state  what  the  true  facts  are 
in  relation  to  the  mental  condition  of 
this  affiant.  He  further  says  that  he 
believes  that  he  can  prove  by  each  of 
said  witnesses  that  this  affiant  has  been 
for  many  years,  and  that  he  was  at  the 
time  of  the  assault  complained  of,  un- 
able to  distinguish  right  from  wrong,  . 
and  did  not  know  the  legal  or  moral 
effect  or  consequences  of  his  acts.  He 
further  says  that  this  affidavit  is  not 
made  for  delay,  but  in  order  that  he 
may  obtain  a  just  and  fair  trial." 


392 


Volume  5. 


6293.  ADJOURNMENTS.  6293. 

day  of  September,  i&87,  he,  the  said  Charles  Huggins,  was  in  the 
employment  of  defendant,  engaged  in  the  running  of  the  press  men- 
tioned in  said  petition;  that  when  the  said  plaintiff  commenced  to 
work  upon  said  press,  in  company  with  said  Charles  Huggins,  the 
said  plaintiff  was  fully  and  completely  and  properly  instructed  as  to 
the  proper  manner  of  performing  the  duties  of  his  position,  and 
avoiding  the  dangers  of  his  said  occupation,  and  that  plaintiff  was 
fully  advised  in  the  premises;  that  plaintiff  was  injured  by  his  own 
gross  carelessness  and  fault,  and  not  through  the  fault,  carelessness 
or  neglect  of  him,  the  said  Charles  Huggins,  the  defendant,  or  any  of 
the  other  of  its  employees;  that  said  plaintiff  was  injured  by  care- 
lessly thrusting  his  hand  into  the  cylinder  mentioned  when  and 
while  the  piston  therein  was  rising,  notwithstanding  the  fact  that 
said  plaintiff  had  been  instructed  and  warned  to  keep  his  hands  out 
of  said  cylinder  when  said  piston  was  rising,  and  that  immediately 
upon  the  happening  of  the  injury  complained  of  the  said  plaintiff 
stated  in  the  presence  of  the  said  Charles  Huggins  "  that  it  was  his 
(plaintiff's)  own  fault  that  he  had  been  injured."  That  he  knows  of 
no  other  person  or  persons  by  whom  the  above  stated  facts  can  be 
proven, 1  [and  that  he  believes  the  same  to  be  true,]^  and  affiant  fur- 
ther states  that  when  he  was  employed  as  attorney  for  the  defendant, 
he  supposed  that  the  present  pressman  at  defendant's  works  was  the 
one  who  was  working  there  when  plaintiff  was  injured,  and  that 
it  was  only  a  short  time  ago,  and  since  the  commencement  of  this 
term  of  court,  or  immediately  prior  thereto,  that  he  discovered 
otherwise;  that  this  affiant  and  the  officers  of  said  defendant  having 
used  due  diligence,  by  making  every  inquiry  possible  to  find  the 
whereabouts  of  said  Charles  Huggins,  and  have  asked  all  of  those 
who  would  be  likely  to  know  here  what  his  post-office  address  is,  but 
could  get  no  further  information  than  that  he  was  in  California.^ 
Affiant  further  says  that  he  expects  to  procure  the  testimony  of  said 
Charles  Huggins  at  the  next  term  of  this  court;"*  that  it  would  be  dan- 

1.  Ho  Other  Witness  to  Same  Facts. —  Ingalls  v.  Noble,  14  Neb.  272,  where 
In  Burgo  v.  State,  26  Neb.  641,  the  affi-  the  witness  was  in  some  place  in 
davit,  which  is  quoted  in  full  in  the  pre-  Colorado  unknown,  and  the  allegation 
ceding  note,  was  held  defective  because  of  inquiries  made  to  ascertain  his 
it  did  not  allege  that  the  same  facts  whereabouts  was  held  too  indefinite  for 
could  not  be  proved  by  other  witnesses,  omitting  to  state  when  and  of  whom 
See  also  Rowland  v.  Shephard,  27  Neb.  the  inquiries  were  made.  For  a  similar 
494;  Johnson  v.  Mills,  31  Neb.  524,  case  see  Comstock  z*.  State,  14  Neb.  205. 
where  the  affidavit  held  sufficient  con-  For  other  cases  of  insufficient  diligence 
tained  this  averment;  and  sufra,  note  see  McClelland  v.  Scroggin,  48  Neb. 
2,  p.   343.  141;     Peavy    v.    Hovey,    16    Neb.    416; 

2.  Testimony  Believed  to  be  True. —  Rowland  7/.  Shephard,  27  Neb.  494;  and 
The  affidavit  pronounced  sufficient  in  for  cases  where  the  diligence  alleged 
Johnson  f.  Mills,  31  Neb.  524,  contained  was  held  sufficient  see  Hair  v.  State, 
this  averment,  which  is  commonly  in-  14  Neb.  503;  Gandy  v.  State.  27  Neb. 
serted,  and  has  been  held  to  be  neces-  707;  Newman  v.  Slate,  22  Neb.  355; 
sary.     See  supra,  note  2,  p.  342.  Johnson  z'.  Mills,  31  Neb.  524,  where  the 

3.  Diligence  to  Obtain  the  Testimony. —  substance  of  the  affidavit  is  given; 
The  statement  of  diligence  "  should  be  Miller  v.  State,  29  Neb.  437.  See,  gener- 
of  specific  acts  done  or  excuses  for  not  ally,  as  to  averments  of  diligence,  supra 
doing  them,  and  given  with  such  par-  note  5.  p.  339  <7  seq. 

ticularly  that  an  indictment  for  perjury  4.  Expectation  of  Procnring  the  Testi- 
would  lie   in  case  of  its  being  false."     mony. —  It  should   be  alleged  that  the 

893  Volume  5. 


6294.  CONTINUANCES  AND  6294. 

gerous  for  defendant  to  proceed  to  trial  in  said  action  without  the 
testimony  of  said  witness,  and  affiant  further  says  that  this  applica- 
tion for  continuance  is  not  made  for  delay,  but  that  justice  may  be 
done.^ 

\R.  S.  Bibb. 
Subscribed  and  sworn  before  me  by  R.  S.  Bibb  this  first  day  of 
September,  iSS9. 

(seal)  Norton  Porter,  Notary  Public  within 

and  for  the  county  of  Gage,  State  of  Nebraska^ 

Form  No.  6294.' 

State  of  South  Dakota,  \  ^^ 
County  of  Lawrence.     \ 

Henry  Frawley,  being  duly  sworn,  upon  his  oath  deposes  and  says: 
I  reside  \n  Dead-wood,  South  Dakota;  I  am  an  attorney  at  law  by  occu- 
pation,^  and  am  actively  engaged  in  the  practice  of  my  profession; 
am  the  attorney  for  the  dti&ndiints,^  John  Fitzgerald  dind  David  Fitz- 
gerald, copartners  as  John  Fitzgerald  or'  Brother,  defendants  above 
named,  and  have  been  their  attorney  since  April,  iS90.  Affiant  fur- 
ther says:  That  Da7jid Fitzgerald,  by  occupa.t\on  a  railroad  contractor, 
and  who  now  resides  at  Lincoln,  state  of  Nebraska^  Charles  McGlave, 
by  occupation  bookkeeper  and  accountant,  and  who  now  resides  at 
Lincoln,  state  of  Nebraska,  John  J.  Cagney,  by  occupation  bookkeeper, 
and  who  now  resides  at  Plattsmouth,  state  of  Nebraska,  I.  S.  P.  Weeks, 
by  occupation  a  railroad  civil  engineer,  and  who  now  resides  at  Lin- 
coln, state  of  Nebraska,  and  F.  C.  Tucker,  by  occupation  a  railroad 
civil  engineer,  and  who  now  resides  at  Lincoln,  state  of  Nebraska,  and 
E.  O.  Bailey,  by  occupation  a  clerk,  residence,  Lincoln,  state  of 
Nebraska,  are  material  witnesses  for  the  defendants,  John  Fitzgerald 
&•  Brother  aforesaid,  without  whose  testimony  they  cannot  safely 
proceed  with  the  trial  of  this  action. 

party   expects   to   procure    the   absent  holding  that  the  refusal  of  a  continu- 

testimony  at  the  time  to  which  he  seeks  ance  was  reversible  error, 

to  continue  the   case.     See  Barton   v.  3.  "  Name,  residence  and  occupation  of 

McKay,  36  Neb.  632;  Johnson  v.  Mills,  the  affiant  and  of  the  witness  "  must  be 

31  Neb.  524,  and  supra,  note  8,  p.  345.  stated,  "  unless  the  nameof  the  witness 

And  if  the  witness  is  out  of  the  state  is  not  known,  in  which  case  the  affiant 

or    his    whereabouts    unknown,    facts  shall   state   such    facts,  if   possible,  as 

should  be  alleged  showing  that  there  is  will  establish  the  identity  and  existence 

reasonable  ground  to  believe  that  his  of  the  witness."   Rule  No.  XXIX,  subd. 

testimony  can  be  so  procured.     Row-  i,  of  the  circuit  court  (6th  Jud.  Cir.). 

land  V.  Shephard,  27  Neb.  494;  McClel-  See  further,  as  to  statement  of  name 

land  V.  Scroggin,  4S  Neb.  141;  Polin  v.  and  residence    of  witness,  supra,  note 

State,  14  Neb.  540.  i,  p.  334. 

1.  Application  Not  Made  for  Delay  4.  Who  may  Make  Affidavit. —  "  Mo- 
Merely.  —  See  supra,  note  7,  p.  347.  tions  for  a  continuance  on  account  of 

2.  South  Dakota.  —  Rule  No.  XXIX  of  the  absence  of  witnesses,  in  all  cases, 
the  circuit  court  (6th  Jud.  Cir.).  civil  or  criminal,  must  be  based  upon 

This  form  was  kindly  furnished  by  the  affidavit  of   the    party,    his    agent 

Hon.   Howard  G.  Fuller,  judge  of  the  or  attorney,    except    in  criminal  cases 

supreme  court  of  South  Dakota,  and,  where  the  defendant  is  confined  in  jail, 

as  supplemented  by  the  notes,  is  a  copy  when  the  affidavit  may  be  made  by  any 

of  the  affidavit  filed  in  the  circuit  court  person  knowing  the  facts."      Rule  No. 

in  Adams  w.  Grand  Island,  etc.,  R.  Co.,  XXIX   of   the  circuit   court   (6th  Jud. 

(S.    Dak.    1897)   72    N.    W.    Rep.    577,  Cir.). 

394  Volume  5. 


6294. 


AD  JO  URN  MEN  TS. 


6294. 


That  the  material  facts  which  it  is  expected  to  be  proven  by  said 
witnesses,  and  each  of  them,  is  as  follows  (^statement  of  facts  expected 
to  be  proved).^     Affiant  further  says,  that  he  believes  the  aforesaid 


1.  Facta  Expected  to  be  Proyed.  —  The 
affidavit  must  state  "  the  material  facts 
which  it  is  expected  to  prove  by  said 
witness."  Rule  No.  XXIX,  subd.  2, 
of  the  circuit  court  (6th  jud.  Cir.). 
See  also  supra,  note  7.  p.  335. 

The  affidavit  continued  as  follows: 

"David  Fitzgerald  had  the  sole  charge 
of  the  construction  of  said  railroad 
during  the  time  the  plaintiff  alleges  he 
worked  upon  section  101  thereof  and 
had  personal  charge  of  the  construction 
of  the  line  of  railroad  from  Edgemont, 
Fall  River  county,  to  Pennington, 
Lawrence  county.  South  Dakota,  from 
on  or  about  the  15th  day  of  April,  1890, 
until  the  completion  thereof,  and  that 
said  David  Fitzgerald  knows  and  can 
prove  that  the  firm  of  John  Fitzgerald 
&  Brother  is  not  now  and  was  not  on 
the  31st  day  of  November,  1890,  in- 
debted to  the  said  A.  H.  Fitch,  in  any 
sum  whatever  under  the  said  contract 
under  which  the  said  plaintiff  alleges 
he  was  employed  to  and  did  perform 
labor  and  that  the  said  A.  H.  Fitch  total 
value  of  labor  done  under  his  said 
alleged  contract  was  $37,047. 10,  and  no 
more,  and  that  the  total  amount  paid 
by  said  John  Fitzgerald  &  Brother  to 
the  said  A.  H.  Fitch  and  accepted  and 
received  by  said  A.  H.  Fitch  upon  his 
said  contract  was  the  sum  of  $41,085,06, 
and  that  there  is  now  and  was  on  the 
1st  day  of  December,  1890,  due  and 
owing  from  the  said  A.  H.  Fitch  to  the 
said  John  Fitzgerald  &  Brother  the 
sum  of  $4,037.96. 

That  Charles  McGlave  is  now,  and 
was  during  all  the  time  during  which 
the  plaintiff  alleges  he  was  at  work  on 
section  loi,  the  general  bookkeeper  of 
John  Fitzgerald  &  Brother,  and  as  such 
had  general  charge  of  all  the  books  of 
original  entry,  receipts,  vouchers,  dates 
of  payment,  and  payments  made  by 
John  Fitzgerald  &  Brother  aforesaid  to 
the  said  A.  H.  .Fitch  mentioned  in 
plaintiffs  complaint,  and  knows  the 
fact  and  has  the  written  and  document- 
ary evidence  in  his  possession  to  prove 
and  sustain  that  the  total  value  of  the 
work  and  labor  performed  by  A.  H. 
Fitch  under  his  said  contract  was  $37,- 
047.10.  and  that  the  said  John  Fitz- 
gerald &  Brother  paid  to  said  Fitch  and 
the  said  Fitch  accepted  upon  his  said 
contract   from    them    the  sum  of  $41,- 


085,06,  and  that  there  is  not  now  and 
was  not  on  the  31st  day  of  November, 
1890,  any  sum  due  from  said  John 
Fitzgerald  &  Brother  to  the  said  A.  H. 
Fitch  upon  his  said  alleged  contract, 
and  that  in  fact  there  was  due  and 
owing  and  is  now  due  and  owing  and 
since  the  first  day  of  December,  1890, 
has  been  due  and  owing  from  A.  H. 
Fitch  to  John  Fitzgerald  &  Brother  the 
sum  of  $4,037.96. 

That  John  J.  Cagney  was  the  local 
bookkeeper  upon  said  line  of  railroad 
and  assistant  paymaster  of  John  Fitz- 
gerald &  Brother  during  the  season  of 
1890,  and  paid  to  said  A.  H.  Fitch,  upon 
his  said  contract,  large  sums  of  money 
and  made  the  entries  in  the  original 
books  thereof. 

That  I.  S.  P.  Weeks  was  the  chief 
engineer,  who  had  general  charge  and 
supervision  of  the  construction  of  the 
entire  line  of  said  railroad  hereinbefore 
mentioned,  and  that  F.  C.  Tucker  was 
the  division  engineer  under  said  I.  S. 
P.  Weeks  during  the  entire  time  of  the 
construction  of  said  railroad;  that  the 
contract  under  which  the  said  A.  H. 
Fitch  is  alleged  by  the  plaintiffs  to  have 
constructed  the  railroad  mentioned  in 
the  plaintifif's  petition  provides,  among 
other  things,  as  follows: 

'  It  is  also  agreed  that  in  case  the 
engineer  shall  be  of  the  opinion  that 
any  portion  of  the  work  is  not  pro- 
gressing at  such  rate  as  to  insure  the 
completion  of  the  work  according  to 
the  contract,  then,  if  he  so  elects, 
he  is  herewith  invested  with  full  power 
and  authority,  any  supposed  privi- 
lege of  contractor  or  subcontractor 
to  the  contrary  notwithstanding,  to 
place  such  force  of  men  and  teams 
on  said  work  as  will  in  his  judgment 
be  desirable  to  the  quick  completion  of 
said  work,  the  expense  of  which  so  in- 
curred shall  be  deducted  from  the 
amount  to  be  paid  to  the  contractor,  or 
subcontractor.'  And  said  contract  under 
which  said  work  is  alleged  to  have  been 
performed  by  A.  H.  Fitch  contained 
among  other  provisions  the  following: 
'  The  quantities  and  amounts  of  the 
several  kinds  of  work  performed  under 
this  contract  shall  be  determined  by  the 
measurement  and  calculation  of  the 
engineer  or  his  assistants  acting  under 
his  direction,    and   the   said    engineer 


395 


Volume  5. 


6294. 


CONTINUANCES  AND 


6294. 


facts  to  be  true,^  and  that  he  knows  of  no  other  witnesses  by  whom 
such  facts  can  be  fully  proven. ^  Affiant  further  says  that  he  beheves 
all  the  aforesaid  facts  to  be  true,  and  that  if  said  witnesses  were 
present,  they  will  personally  testify  to  the  same.  (^Diligence  to  obtain 
the  witness  or  his  testimony).^  That  affiant  believes  that  if  this  case  be 


shall  have  full  power  to  reject  or  con- 
demn any  and  all  work  which  in  his 
opinion  does  not  conform  to  the  spirit 
of  this  agreement.  And  it  is  expressly 
agreed  by  the  parties  of  this  contract 
that  the  measurement  and  determina- 
tion of  the  quantities  by  said  engineer  or 
his  assistants  under  his  directions  shall 
be  final  and  conclusive  upon  both  parties 
hereto,  and  that  his  decision,  directions 
and  determinations,  in  the  execution  of 
the  work  herein  shall  be  binding  and 
conclusive  upon  the  parties.'  That 
said  engineers,  Weeks  and  Tucker,  will 
prove  that  the  said  A.  H.  Fitch  did  not 
complete  his  work  in  accordance  with 
said  contract,  and  that  the  said  engi- 
neers. Weeks  and  Tucker,  did  elect 
that  the  said  A.  H.  Fitch,  in  their  opin- 
ion, was  not  progressing  in  such  time  as 
would  insure  the  completion  of  said 
work  according  to  the  contract,  and 
said  engineers  did  elect  and  place 
upon  said  work  men  and  teams,  and 
E.  O.  Bailey  kept  time  of  the  num- 
ber of  days  and  number  of  teams  em- 
ployed upon  said  work  so  contracted  to 
be  done  by  said  A.  H.  Fitch,  and  that 
the  total  value  of  the  said  work  and 
labor  of  the  men  and  teams  elected  to 
be  placed  upon  said  work  of  said  A.  H. 
Fitch  amounted  to  $15,941.45,  and  that 
the  names  of  the  men  and  the  value  of 
the  labor  performed  upon  the  work  un- 
dertaken to  be  completed  by  said  A.  H. 
Fitch  is  hereto  attached,  marked  Ex- 
hibit A,  from  pages'  12  to  25  inclusive; 
that  the  said  Tucker  and  Weeks  did  de- 
termine the  amount  due  under  said  con- 
tract of  said  A.  H.  Fitch  and  the  value 
thereof  in  his  final  estimate,  and  that 
the  amount  and  value  thereof  was  paid 
and  accepted  by  said  A.  H.  Fitch,  as 
aforesaid. 

Affiant  further  says,  that  pages  2  to 
II,  inclusive,  contain  payments  and 
advances  made  to  said  A.  H.  Fitch  on 
his  said  contract,  which  is  hereto  at- 
tached and  marked  Exhibit  5." 

1.  Facts  Believed  to  be  True.  —  "  That 
affiant  believes  them  to  be  true  "  must 
be  stated.  Rule  No.  XXIX,  subd.  2, 
of  the  circuit  court  (6th  Jud.  Cir.).  See 
also  supra,  note  2,  p.  342. 

2.  No  Other  Witness  to  Same  Facts.  — 
The  affidavit  must  state  that  the  affiant 


"  knows  of  no  other  witness  by  whom 
such  facts  can  be  fully  proved."  Rule 
No.  XXIX,  subd.  2,  of  the  circuit  court 
(6th  Jud.  Cir.).     .See  also  supra,  note  2, 

P-  343- 

3.  Diligence  to  Obtain  the  Witness  or 
his  Testimony. —  The  affidavit  must  state 
"  efforts  constituting  due  diligence  to 
obtain  such  witness  or  his  testimony." 
Rule  No.  XXIX,  subd.  3,  of  the  circuit 
court  (6th  Jud.  Cir.),  See  also  supra, 
note  5,  p.  339  et  seq. 

The  affidavit  continued  as  follows: 
"Affiant  further  says,  that  on  the22d 
day  of  January,  1894,  this  cause  was  set 
for  trial  by  said  court  upon  the  8th 
day  of  February,  1894;  that  upon  said 
22d  day  of  January,  1894,  affiant  ad- 
vised his  clients  by  letter  directed  to 
their  home  in  Lincoln,  Neb.,  and  re- 
ceived in  reply  a  letter  hereto  attached 
and  marked  Exhibit  C,  and  made  a 
part  of  this  affidavit,  and  that  thereafter 
to  wit,  on  the  31st  day  of  January,  1894, 
affiant  received  another  letter  from  his 
said  client  in  reference  to  the  witness 
O.  E.  Bailey,  which  is  hereto  attached 
and  marked  Exhibit  Z>,  and  hereby 
made  a  part  of  this  affidavit;  and  that 
thereafter,  to  wit,  on  the  4th  day  of  Feb- 
ruary, 1894,  affiant  received  another 
letter  in  reference  to  witnesses  in  this 
case  from  his  said  clients,  which  is 
hereto  attached  and  made  a  part  of  this 
affidavit  and  marked  Exhibit  E,  and 
again  on  the  7th  day  of  February,  1894, 
affiant  received  a  telegram  in  reference 
to  the  witnesses  in  this  case,  from  his 
said  clients,  which  is  hereto  attached 
and  marked  Exhibit  F,  and  hereby 
made  a  part  of  this  affidavit.  Affiant 
further  says,  that  David  Fitzgerald, 
Charles  McGlave,  I.  S.  P.  Weeks  and 
F.  C.  Tucker,  are  unavoidably  detained 
as  witnesses  in  the  United  States  Cir- 
cuit Court  for  the  State  of  Nebraska, 
now  in  session  in  the  city  of  Omaha, 
for  that  on  the  5th  day  of  February, 
1894,  the  case  of  James  Halley,  who  is 
the  assignee  of  Chamberlain  &  Skinner, 
against  John  Fitzgerald  &  Brother  for 
the  sum  of  over  $58,000  was  commenced 
and  that  the  said  case  is  now  in  progress 
of  trial;  that  said  case  arises  and  grows 
out  of  the  construction  of  the  line  of 
railroad  constructed  by  John  Fitzgerald 


396 


Volume  5. 


6294. 


AD  JO  URNMENTS. 


6294. 


postponed  until  the  determination  of  the  case  in  the  United  States 
Court  at  Lincoln,  Nebraska,  the  said  witnesses  can  be  obtained  in 
this  court  on  behalf  of  the  defendant.^  (^Grounds  for  belief.)^  Where- 
fore affiant  asks  that  this  case  be  postponed  until  the  trial  of  the  case 
now  pending  in  the  United  States  Court  is  concluded,  which  will  not 
exceed,  in  affiant's  opinion  and  belief,  ten  days,  and  that  affiant's 
witnesses  will  be  present  at  said  time,  and  that  the  case  now  being 
tried  by  Mr.  Van  Cise  will  be  concluded  by  that  time,  and  he  and  all 
the  witnesses  for  the  defendants  will  be  ready  to  proceed  with  the 
trial  of  this  case;  that  this  application  is  not  made  for  the  purpose  of 


&  Brother  between  Edgemont  and 
Deadwood  during  1890;  that  said  case 
was  originally  brought  in  the  Circuit 
Court  of  the  Seventh  Judicial  Circuit 
of  the  State  of  South  Dakota,  subse- 
quently removed  to  the  United  States 
Circuit  Court  of  the  District  of  South 
Dakota,  and  thereafter,  and  after  all 
the  testimony  on  part  of  the  plaintiff 
was  taken,  dismissed  by  the  plaintiff; 
that  affiant  was  engaged  as  counsel  for 
John  Fitzgerald  &  Brother,  therein  and 
during  the  taking  of  plaintiff's  testi- 
mony in  the  case,  and  that  the  wit- 
nesses, F.  C.  Tucker,  I.  S.  P.  Weeks, 
David  Fitzgerald  were  present  thereat; 
that  affiant  knows  that  the  said  defend- 
ants herein  and  for  whom  this  affidavit 
is  made  do  not  desire  a  postponement 
of  this  case  and  that  the  witnesses  on 
their  behalf  would  now  be  present  if 
they  had  not  unavoidably  been  de- 
tained; that  E.  O.  Bailey's  mother  died 
since  this  case  was  set  for  trial,  as  affi- 
ant is  informed  and  believes;  that  the 
case  now  pending  in  the  United  States 
Court  was  set  for  trial,  as  affiant  was 
informed,  by  N.  K.  Griggs,  on  the  4th 
day  of  February,  1894,  unexpectedly, 
and  that  it  was  a  great  surprise  to  the 
defendants  in  said  case;  that  the  reason 
said  Fitzgerald,  McGlave,  Cagney  and 
Bailey's  testimony  was  not  taken  was 
because  they  had  agreed  to  be  here  per- 
sonally and  had  in  several  cases  here- 
tofore tried,  testified  in  Deadwood  in 
like  cases;  that  if  F.  C.  Tucker  and  I. 
S.  P.  Weeks's  testimony  was  not  taken 
for  the  reason  that  since  said  case  was 
set  for  trial  they  each  said  they  would 
be  here  personally  and  have  personally 
attended  the  trial  of  lien  cases  involv- 
ing the  same  propositions  in  this  city." 

1.  Expectation  of  Obtaining  the  Testi- 
mony.—  Se^  supra,  note  8,  p.  345. 

2.  Oronnda  for  Belief.  —  The  affidavit 
must  state  "facts  showing  reasonable 
grounds  for  the  belief  that  the  attend- 
ance of  the   witness   or  his  testimony 


can  be  procured  at  the  next  term  or  at 
the  time  to  which  the  continuance  is 
asked."  Rule  No.  XXIX,  subd.  4,  of 
the  circuit  court  (6th  Jud.  Clr.).  See 
also  supra,  note  3,  p.  347. 

The  affidavit  continued  as  follows: 
"  Affiant  further  says,  that  McGlave, 
Fitzgerald,  Weeks  and  Tucker  are  now 
each  personally  attending  the  United 
States  court  at  Omaha  as  witnesses  in 
the  aforesaid  case,  and  affiant  from  his 
knowledge  of  said  case  believes  the 
same  will  occupy  in  the  trial  thereof 
about  two  weeks,  and  that  inasmuch 
as  all  said  witnesses  have  agreed  to  at- 
tend the  trial  in  this  court  and  affiant 
knows  that  all  the  books,  final  estimates 
and  vouchers  used  and  growing  out  of 
the  construction  of  said  railroad  are  now 
in  the  custody  of  the  said  McGlave  and 
Cagney,  Weeks  and  Tucker  for  t'.ie 
purpose  of  being  used  as  evidence  in 
the  case  now  being  tried  in  said  United 
States  court,  and  for  that  reason  are 
unable  to  be  used  at  this  time  in  the 
trial  of  this  case.  Affiant  further  says: 
that  the  said  Bailey  has  not  yet  re- 
turned from  his  trip  east  occasioned  by 
the  death  of  his  mother,  who  died  since 
this  case  was  set  for  trial  and  is  un- 
avoidably detained  thereat,  and  unable 
to  be  here  at  this  time,  but  from 
affiant's  information  and  knowledge, 
inasmuch  as  he  resides  in  Lincoln, 
affiant  believes  he  can  be  obtained  and 
will  be  here  personally  to  testify  in  this 
case  as  soon  as  the  case  now  pending  in 
Omaha  is  determined.  Affiant  further 
says,  that  Edwin  Van  Cise,  attor- 
ney for  the  defendant  railroad  com- 
panies, is  now  unavoidably  detained  at 
Hot  Springs,  South  Dakota,  in  the  trial 
of  an  important  case  thereat,  and  that 
said  case  and  the  trial  thereof  was  set 
since  this  case  was  called  and  regularly 
set  for  trial.  That  this  action  is  an 
action  to  foreclose  a  lien  upon  the  rail- 
road claimed  or  owned  by  the  clients  of 
the  said  Van  Cise." 


397 


Volume  5. 


6295. 


CONTINUANCES  AND 


6295. 


delay,^  but  that  justice  may  be  done  in  the  premises.^ 

Henry  Frawley^ 
Subscribed  and  sworn  to  before  me  \.\\\'s,  eighth  Adiy  oi  February^  i8P^. 
(seal)  /.  P.  Laffey,  Notary  Public. 


TEXAS CIVIL    CASE FIRST    APPLICATION. 

Form  No.  6295.* 


1.  Application  Not  Made   for  Delay.  — 

See  supra,  note  7,  p.  347. 

2.  Excose  for  Delay  in  Making  Applica- 
tion—  In  Civil  Cases.  —  "All  motions  for 
a  continuance  must  be  filed  on  or  be- 
fore the  first  day  of  the  term  and  called 
up  for  hearing  upon  the  preliminary 
call  of  the  calendar,  unless  the  cause 
of  such  continuance  shall  have  arisen 
or  come  to  the  knowledge  of  the  party 
subsequent  thereto,  in  which  case  the 
motion  shall  be  made  as  soon  as  prac- 
ticable, and  the  affidavit  must  state  the 
facts  showing  reasonable  diligence  and 
constituting  an  excuse  for  delay." 
Rule  No.  XXVII  of  the  circuit  court 
(6th  Jud.  Cir.). 

"  In  criminal  actions  the  motion  for  a 
continuance  must  be  made  as  soon  as 
practicable  after  issue  of  fact  joined, 
and  the  affidavit  must  show  that  it  is  so 
made."  Rule  No.  XXVIII  of  the  cir- 
cuit court  (6th  Jud.  Cir.). 

For  a  form  of  averment  under  a 
statutory  provision  similar  to  the  fore- 
going rules,  see  the  concluding  part  of 
Form  No.  6289. 

3.  Defendant's  Affidavit.  —  There  was 
also  filed  a  separate  affidavit  by  the 
defendant,  as  follows: 

"  State  of  Nebraska,     ) 
County  of   Douglas,  f 
Affidavit  of  David  Fitzgerald  for  con- 
tinuance. 

David  Fitzgerald,  being  duly  sworn 
on  oath,  deposes  and  says  he  is  one  of 
the  defendants  in  the  above  entitled 
action;  that  one  Edward  O.  Bailey  is  a 
material  witness  for  the  defendant  in 
the  trial  of  the  above  entitled  action; 
that  the  defendants  have  not  taken  the 
deposition  of  the  said  Bailey  for  the 
reason  that  the  aforesaid  Bailey  had 
agreed  with  defendants,  and  particu- 
larly with  this  affiant,  to  go  to  Dead- 
wood,  South  Dakota,  to  attend  court 
and  testify  in  this  case  whenever  the 
said  case  would  be  reached;  that  de- 
fendant relied  upon  his  promise,  and 
that  Bailey  would  go  to  Deadwood  and 
testify  in  the  case  were  it  not  for  the 
reason  that  said  Bailey's  mother  died 
at   Dayton,  Ohio,    last   week,  and   the 


said  Bailey  was  obliged  to  go  on  to 
Dayton,  Ohio,  to  attend  the  funeral 
and  look  after  his  mother's  estate;  that 
the  said  Bailey  was  not  aware  until 
just  before  he  left  here  that  he  would 
have  to  go  on,  and  these  defendants 
did  not  know  until  just  before  he 
started  that  he  was  going  away;  and 
that  when  he  left  here  he  promised 
these  defendants  to  return  just  as  soon 
as  possible;  and  that  he  would  in  all 
probability  be  back  within  a  week,  but 
that  these  defendants,  and  particularly 
this  affiant,  have  written  and  tele- 
graphed said  Bailey  asking  him  to  re- 
turn at  once,  and  since  he  went  away 
the  above  entitled  cause  has  been  set 
for  trial,  but  have  received  no  reply 
from  the  said  Bailey;  that  the  said 
Bailey  is  the  only  witness  who  can 
testify  as  to  the  amount  of  time  that 
plaintiff  worked  for  Mr.  Fitch;  and 
that  the  testimony  of  the  witness 
Bailey  with  reference  to  this  point  is 
vital  and  material  to  this  case;  that 
this  affiant,  one  of  the  defendants,  who 
is  a  material  witness  for  the  defendants 
in  the  above  entitled  action,  will  be  un- 
able to  be  present  at  the  time  the  case 
is  set  for  trial,  for  the  reason  that  he  is 
a  party  to  a  case  now  being  tried  in  the 
United  States  court  for  the  district  of 
Nebraska;  and  that  said  case  will  last 
for  some  considerable  time,  just  how 
long  this  affiant  is  unable  to  say,  but 
probably  for  two  or  three  weeks;  and 
that  defendants  cannot  go  to  trial  in 
Deadwood  without  the  testimony  of  this 
affiant;  that  this  affidavit  for  a  continu- 
ance is  not  made  for  the  purpose  of 
delay,  but  that  the  defendants  may  be 
able  to  present  testimony  vital  to  their 
interests,  and  that  their  rights  may  be 
protected. 

David  Fitzgerald. 
Subscribed  in  my  presence  and  sworn 
to  before  me  this  sixth  day  of  February, 
1894.  W.  L.  Learned, 

(seal)  Notary  Public." 

4.  The  statutory  provision  regulating 
first  applications  for  continuance  in  civil 
cases  in  the  district  and  county  courts  is 
Tex.  Rev.  Stat.  (1895),  art.  1277. 


398 


Volume  5. 


6295. 


AD  JO  URN  MEN  TS. 


6295. 


(Precedent  in  Doll  v.  Mundine,  84  Tex.  317.) 

fcou'n'ro'  "U."""'  \  ^"'-'  Court, Term.  x.  x..  .8*6. 

W.  W.  Mundine,  plaintiff, 

against 

Eliza  Doll  et  al.,  defendants. 

The  State  of  Texas,  \      -, 

County  of  Lee.  ]  ^^  J 

Now  come  the  defendants  in  the  above  cause  by  their  attorney, 


Other  Approved  Forms.  —  In  Bailey  v. 
State.  26  Tex.  App.  341,  a  proceeding 
for  forfeiture  of  a  bail  bond,  the  follow- 
ing affidavit,  omitting  the  caption,  sig- 
nature and  jurat,  was  held  suflScient: 

"  Now  come  the  defendants,  S.  M. 
Millhollan  in  person,  andy.  D.  Lindley 
by  attorney,  and  say  they  cannot  safely 
go  to  trial  in  this  case  at  this  term  of 
the  court,  for  the  want  of  the  testimony 
of  the  defendant,  J.  D.  Lindley,  Eli 
Lindley  and  Batt  Millhollan,  all  of 
whom  reside  in  Hopkins  county,  Texas, 
and  each  of  whom  is  and  are  material 
witnesses  for  the  defendants  in  this 
case;  and  defendants  say  they  have 
used  due  diligence  to  procure  the  tes- 
timony of  each  of  said  witnesses,  Eli 
Undley  and  Millhollan;  that  both  of 
said  witnesses  have  been  in  attend- 
ance upon  this  court  during  the  pres- 
ent term  thereof,  and  the  witness 
Batt  Millhollan  was  in  attendance  upon 
this  court  on  yesterday  or  the  day  be- 
fore. Defendants  say  that,  since  the 
last  term  of  this  court  and  before  the 
present  term  of  this  court,  and  a  few 
days  after  the  service  of  the  writ  of 
scire  facias  upon  these  defendants, 
they  caused  to  be  issued  a  subpoena  by 
the  clerk  of  this  court  for  said  wit- 
nesses, Eli  Lindley  and  Batt  Millhollan, 
indue  form  of  law;  that  said  subpoenas 
were  served  on  each  of  said  witnesses 
by  the  sheriff  and  deputy  sheriff  of  this 
county  before  the  present  term  of  this 
court.  They  say  that  said  subpoena 
has  not  been  returned  into  court,  or,  if 
so,  has  not  been  found  by  the  defend- 
ants at  all.  The  defendant  S.  M. 
Millhollan  says  that  he  saw  defend- 
ant J.  D.  Lindley  on  last  night,  and 
that  said  J.  D.  Lindley  was  sick  in 
bed,  and  is  not  able  to  be  in  attendance 
upon  this  court  today;  that  he,  _/.  D. 
Lindley,  lives  about  ten  miles  from  the 
court-house  of  this  county,  and  is  a 
material  witness  in  this  case  for  this 
defendant,  S.  M.  Millhollan.     Premises 


considered,  this  defendant  asks  for 
himself,  and  for  and  in  behalf  of  the 
defendanty.  D.  Lindley,  that  this  cause 
be  continued  until  the  next  term  of 
this  court.  This  defendant  herewith 
annexes  and  makes  a  part  of  this  show- 
ing the  certificate  of  the  physician. 
Doctor  B.  Worcham,  showing  the  sick- 
ness of  y.  D.  Lindley." 

The  following  is  the  body  of  an  affi- 
davit which  was  held  sufficient  in 
Cleveland  v.  Cole,  65  Tex.  403: 

"  Now  come  the  defendants  in  the 
above  cause,  and  say  that  they  cannot 
safely  go  to  trial  at  this  term  of  the 
court,  for  want  of  the  testimony  of  ^. 
Tidwell,  who  resides  in  San  Jacinto 
county,  Texas;  that  the  testimony  of 
that  witness  is  material  for  their  de- 
fense; that  they  have  used  due  dili- 
gence to  procure  the  same  in  that 
they  caused  a  subpoena  to  be  issued 
by  the  clerk  of  the  district  court  cf 
San  Jacinto  county,  on  October  j, 
1^8^,  and  executed  by  serving,  by 
the  proper  officer,  to  wit,  the  sheriff 
of  San  Jacinto  county,  upon  that  wit- 
ness, on  October  ji,  i%8j,  which  sub- 
pcena,  with  the  officer's  return  thereon, 
is  hereto  attached,  marked  Exhibit  A 
and  made  part  hereof;  that  they  expect 
to  procure  the  testimony  of  the  witness 
by  the  next  term  of  the  court;  that 
there  are  no  other  witnesses  known  to 
defendants  by  whom  the  same  facts 
can  now  be  proved  on  this  trial." 

In  Texas  Transp.  Co.  v.  Hyatt,  54 
Tex.  214,  the  affidavit,  omitting  formal 
parts,  was  as  follows: 

"  Now  comes  the  defendant,  and  says 
it  cannot  go  safely  to  trial  at  this  term 
of  the  court,  because  of  the  absence  of 
testimony  material  to  its  cause,  to  wit, 
the  absence  of  the  witnesses  J.  W. 
Goodwin  and  S.  IV.  Allen.  Affiant 
states  that  it  has  used  due  diligence  to 
procure  the  testimony  of  these  wit- 
nesses, in  that  it  caused  a  subpcena  to 
be  issued  for  said  witnesses  out  of  the 
19  Volume  5. 


6295. 


CONTINUANCES  AND 


6295. 


Charles  J.  Stubbs,  and  show  to  the  court,  that  they  cannot  go  safely 
to  trial  at  the  present  term  of  this  honorable  court  for  the  want  of 
testimony  material^  to  their  defense,  viz.,  that  of  JohnH.  Mundine, 
I.  Douglass,  R.  M.  Dickson,  Dr.  H.  Bain,  Thomas  Douglass,  Mr.  Hard- 
castle,  Dr.  IV.  S.  Johnson,  A.  H.  Gladdish,  John  Caplen,  R.  H.  Flanni- 
gan,  Mrs.  W.  Rowland,  Mrs.  Wilson,  George  Guthrie,  Mrs.  J.  W. 
Schive,  and  Robert  V.  Guthrie,  all  of  whom  reside  in  Lee  County, 
except  A.  H.  Gladdish  and  John  Caplen;  and  also  D.  C.  Cunningham, 
a  resident  of  Galveston  County,  Texas.  That  defendants  have  used 
due  diligence  2  to  procure  the  testimony  of  said  witnesses  (except 
Cunningham^,  by  causing  a  subpoena  to  be  issued  out  of  this  court 
on  \.\\tJfih  day  oi November,  i889,  summoning  all  said  persons  except 
the  said  Cunningham,  which  subpoena  went  into  the  hands  of  the 
sheriff  of  Lee  County  on  the  I^th  day  of  November,  iS89,  and  was 
executed  as  to  John  Mundine,  I.  Douglass,  R.  M.  Dickson,  Dr.  H. 
Bain,  Thomas  H.  Douglass,  Mr.  Hardcastle,  R.  H.  Flannigan,  Mrs. 
W.  Rowland,  Mrs.  Wilson,  George  Guthrie,  Mrs.  J.  W.  Schive,  Robert 


district  court  of  Harris  county,  on  the 
iitk  day  of  October,  1877,  and  the  same 
was  placed  in  the  hands  of  the  sheriff 
of  Harris  county,  'J'exas,  by  whom  it 
is  returned  on  the  2gth  day  of  October, 
1877,  '  served  on  all  said  witnesses  ex- 
cept Charles  Pearce'  to  which  subpcena 
now  on  file  among  the  papers  of  this 
cause  reference  is  had  for  greater  cer- 
tainty. That  said  witnesses  reside  in 
Harris  county,  Texas,  and  that  this  de- 
fendant expects  to  procure  their  testi- 
mony by  the  next  term  of  this  court; 
that  they  are  not  absent  by  the  pro- 
curement or  consent  of  this  defendant, 
and  this  application  is  not  made  for 
delay,  but  that  justice  may  be  done, 
and  that  their  testimony  is  material  to 
the  defense  of  this  cause. 

E.  IV.  Cave,  Agent. 

Sworn  to  and  subscribed  before  me, 
this  /.^M  day  of  November,  1877. 

/.  Burke,  Jr.,  Clerk  D.  C.  H.  Co." 

In  reversing  the  judgment  for  re- 
fusal to  grant  a  continuance  on  the  fore- 
going affidavit  the  court  said:  "The 
further  question  is  presented  whether 
defendant,  seeking  a  first  continuance, 
failed  to  show  diligence  in  that  it  failed 
to  show  a  tender  of  their  fees  to  the 
absent  witnesses.  The  court  in  sign- 
ing the  bill  of  exceptions  refers  to  the 
case  of  Bryce  v.  Jones,  38  Tex.  205.  In 
that  case  it  was  made  to  appear  by 
counter  affidavits  that  the  case  had  been 
regularly  reached  on  the  preceding 
day,  when  the  absence  of  the  wit- 
nesses b6came  known,  and  at  the  re- 
quest of  plaintiffs  the  case  was  put  off 
until  the  next  day.  The  court  held 
that     the    plaintiffs    should    have    re- 


sorted to  an  attachment,  and  not  hav- 
ing placed  themselves  in  a  condition  to 
do  so  by  tendering  the  witnesses  their 
fees,  they  were  wanting  in  diligence. 
The  facts  of  that  case  were  peculiar, 
and  the  decision  does  not  necessarily 
involve  the  rule  that  in  ordinary  cases 
a  first  application  for  a  continuance 
must  show  that  the  witness  fees  were 
tendered.  It  is  not  believed  that  such 
a  rule  has  heretofore  prevailed  in  prac- 
tice, and  in  our  opinion  the  court 
erred  in  enforcing  it.  The  application 
for  a  continuance  was  sufficient  and  it 
was  error  to  refuse  it." 

Forms  of  Affidavits  Held  Instifficient.  — 
See  Missouri  Pac.  R.  Co.  v.  Aiken,  71 
Tex.  373;  Bryce  v.  Jones,  38  Tex.  205; 
Texas,  etc.,  R.  Co.  v.  Hall,  83  Tex. 
675;  Falls  Land,  etc.,  Co.  v.  Chisholm, 
71  Tex.  523. 

1.  Materiality  of  Testimony.  —  The 
affidavit  must  state  that  the  absent  tes- 
timony is  "material."  Tex.  Rev.  Stat. 
(1895),  §  1277.  For  want  of  that  aver- 
ment in  McGehee  v.  Minter,  (Tex.  Civ. 
App.  1894)  25  S.  W.  Rep.  718,  it  was 
held  that  the  motion  was  properly  over- 
ruled.    See  also  supra,  note  on  p.  338. 

2.  Due  Diligence.  —  The  affidavit  must 
state  that  "  due  diligence  has  been  used 
to  procure"  the  absent  testimony. 
Tex.  Rev.  Stat.  (1895),  §  1277.  See 
also  supra,  note  5,  p.  339. 

"  It  is  not  sufficient  to  state  the  dili- 
gence without  also  stating  that  it  was 
due  or  sufficient  diligence."  St.  Louis, 
etc.,  R.  Co.  V.  Woolum,  84  Tex.  570, 
holding  that  it  is  not  obligatory  on 
the  court  to  grant  a  continuance  if  the 
averment  is  omitted. 


400 


Volume  5. 


6296. 


AD  JO  URNMENTS. 


6296. 


V.  Guthrie,  and  Dr.  W.  Johnson,  duly  served,  and  not  executed  as  to 
A.  H.  Gladdish  and  Caplen,  all  of  which  will  appear  from  the  said 
process,  which  is  hereby  referred  to,  together  with  the  returns  thereon, 
as  a  part  hereof.  ^ 

That  said  Cunningham  is  also  an  important  and  material  witness  ^ 
and  a  party  to  this  suit,  whose  deposition  has  not  been  taken,  because 
he  expected  and  intended  to  be  present  at  the  trial  ofthe  cause;  but 
since  the  service  of  the  citation  herein  he  has  been  taken  sick,  and 
is  still  sick  and  unable  either  to  travel  or  submit  to  having  his  depo- 
sition taken;  and  he  is  affected  with  partial  paralysis,  and  was  so 
taken  ill  about  NoT>ember  2,  iSS9.     *  *  * 

Wherefore  defendants  ask  the  court  that  the  cause  is  continued  to 
the  next  term  of  this  honorable  court. 

Charles  J.  Stubbs, 
Attorney  in  fact  for  Elizabeth  Doll  et  al."^ 

Sworn  to  and  subscribed  to  before  me  this  the  6th  day  of  November, 
iS86. 

(seal)  J.  J.  Dardin,  District  Clerk. 


TEXAS  —  CIVIL  CASE  —  SECOND  OR  SUBSEQUENT  APPLICATION.* 
Form  No.  6296." 

(  Title  of  court  and  cause,  and  venue  as  in  Form  No.  6295.^ 


1.  Statement  of  Diligence.  —  The  affi- 
davit must  state  the  diligence  used  to 
procure  the  testimony.  Tex.  Rev.  Stat. 
(i8q5),  §  1277;  Missouri  Pac.  R.  Co.  v. 
Aiken,  71  Tex.  373,  giving  the  full  form 
of  an  affidavit  pronounced  insufficient 
and  holding  that  facts  must  be  stated, 
and  not  mere  legal  conclusions.  See 
also  supra,  note  5,  p.  339. 

In  Tittle  v.  Vanleer,  (Tex.  Civ.  App. 
1894)  27  S.  W.  Rep.  736,  the  affidavit 
alleged  that  a  subpoena  had  been 
issued  and  placed  in  the  hands  of  the 
sheriff  on  the  day  preceding  the  appli- 
cation, but  did  not  show  when  and  by 
whom  the  subpoena  had  been  served, 
stating  only  "  which  subpoena  has  been 
served."  It  was  held  that  the  affidavit 
should  have  stated  the  date  of  the  serv- 
ice in  order  that  it  might  appear  that 
the  witness  had  been  subpoenaed  in  time 
to  enable  him  to  be  in  attendance  upon 
the  trial.  To  the  same  effect  see 
Brown  v.  Abilene  Nat.  Bank,  70  Tex. 
750,  and  the  same  principle  was  ap- 
plied in  Gulf,  etc.,  R.  Co.  v.  Wheat.  68 
Tex.  133. 

In  the  following  cases  the  statement 
of  diligence  was  held  not  to  disclose 
sufficient  diligence:  East  Dallas  v. 
Barksdale,  83  Tex.  117;  Texas,  etc.,  R. 
Co.  V.  Hall,  83  Tex.  675;  Falls  Land, 
etc.,  Co.  V.  Chisholm,  71  Tex.  523; 
Missouri    Pac.   R.  Co.  v.  Shuford,    72 


Tex.  165;  Campbell  v.  McCoy,  3  Tex. 
Civ.  App.  298;  International,  etc.,  R. 
Co.  V.  Ragsdale,  67  Tex.  24;  Texas, 
etc.,  R.  Co.  V.  Hardin,  62  Tex.  367.  In 
Blum  V.  Bassett,  67  Tex.  194,  the  affi- 
davit was  held  sufficient. 

2.  See  supra,  note  r,  p.  400. 

3.  Affidavit  by  Attorney  in  Fact.  —  Tex. 
Rev.  Stat.  (1895),  art.  5,  provides  that 
"  whenever  at  the  commencement  or 
during  the  progress  of  any  civil  suit  or 
judicial  proceeding  it  may  be  necessary 
or  proper  for  any  party  thereto  to  make 
an  affidavit,  such  affidavit  may  be  made 
by  either  the  party  or  his  agent  or 
attorney."  "  The  clear  meaning  of  this 
provision  of  the  law,"  said  the  court  in 
this  case,  "  is  to  confer  upon  the  at- 
torney the  same  right  to  make  an  affi- 
davit during  the  progress  of  a  cause 
that  the  law  confers  upon    his  client," 

4.  The  code  provisions  governing  sec- 
ond or  subsequent  applications  for 
continuance  are  to  be  found  in  Tex. 
Rev.  Stat.  (1895),  art.  1278. 

5.  This  form  slightly  modifies  the 
precedent  in  Prewitt  t/.  Everett,  10  Tex. 
283,  to  make  it  conform  more  accu- 
rately to  the  code  provisions  now  in 
force. 

In  Dillingham  v.  Ellis,  86  Tex.  447, 
the  affidavit  was  held  to  be  in  strict 
compliance  with  the  statute  and  the  re- 
fusal of  a  continuance  reversible  error. 


5  E.  of  F.  P.  — 26. 


401 


Volume  5. 


6297.  CONTINUANCES  AND  6297. 

Now  comes  the  defendant  and  says  that  he  cannot  safely  go  to  trial 
without  the  evidence  of  Joel  Hughes^  ^  which  is  material  to  his  defense  ;2 
that  he  expects  to  prove  by  said  witness  that  plaintiff  only  charged 
defendant  one  hundred  dollars  for  services  in  favor  of  defendant 
against  y.  P.  Hughes;  defendant  also  expects  to  prove  by  said  witness 
the  indebtedness  of  the  plaintiff  to  the  defendant  as  charged  in  his 
answer. 

The  defendant  has  used  due  diligence^  to  procure  the  testimony  of 
said  witness  in  that  he  (^Here  state  the  diligence  used^^  Defendant 
knows  not  the  cause  of  the  absence  of  the  said  witness,  unless  it  is 
the  sickness  of  his  family.  Defendant  knows  the  wife  of  said  witness 
was  sick  and  unable  to  sit  up  last  Tuesday  vaoxmvi^.'^  Defendant  says 
that  he  expects  to  procure  the  testimony  of  the  said  witness  at  the 
next  term  of  this  court,*  that  the  same  testimony  cannot  be  obtained 
from  any  other  source,*  that  the  said  Hughes  xt^=\^t.s  in  Ca^j  county, 
Texas,^  and  that  this  continuance  is  not  sought  for  delay  only,  but 
that  justice  may  be  done. ''     (^Signature  and  Jurat  as  in  Form  No.  6295.) 

TEXAS  —  CRIMINAL    CASE FIRST    APPLICATION.® 

Form  No.   6297. 

(Precedent  in  Dinkens  v.  State,  42  Tex.  250.)* 

The  State  of  Texas  )      Now  comes  the  accused  in  the  above  styled 

v.  >      cause,  and  moves  the  court  for  a  continuance, 

Louis  Dinkens.      )      because  he  says  that   he  cannot  go  safely  to 

1.  The  name  of  the  witness  must  be  4.  Expectation  of  Procnring  Testimony, 
stated.    Tex.  Rev.  Stat.  (1895),  art.  1278.     — See  supra,  note  8,  p.  345. 

See  also  supra,  note  i,  p.  334.  5.  Same   Testimony  Not  Elsewhere  Ob- 

2.  Statement  of  Expected  Testimony  and  tainable.  —  The  affidavit  must  state  that 
Materiality  Thereof. —  The  affidavit  must  the  absent  testimony  "cannot  be  ob- 
state  that  the  absent  testimony  "is  tained  from  any  other  source."  Tex. 
material,  showing  the  materiality  Rev.  Stat.  (1895),  art.  1278.  See  also 
thereof  "  and  what  the  applicant  expects  supra,  note  2,  p.  343. 

to  prove  by  the  absent  witness.     Tex.  For  want  of   that  averment   an  affi- 

Rev.  Stat.  (1895),  art.   1278.      See   also  davit  for  a  third  continuance  was  held 

supra,  note  7,  p.  335  et  seq.  insufficient    in    Rowland   v.  Wright,  64 

In  Owen  v.  Cibolo  Creek  Mill,  etc.,  Tex.  261. 

Co.,  (Tex.  Civ.  App.  1897)43  S.  W.  Rep.  6.  The  residence  of  the  witness  must  be 

297,  it  was  not  sufficiently  shown   that  stated.       Tex.     Rev.    Stat.    (1895),    art. 

the   testimony   was  material.     And  in  1278.     See  also  supra,  note  i,  p.  334. 

Merchant  v.  Bowyer,  3  Tex.  Civ.  App.  7.  Application  Not  Made  for  Delay  Only. 

367,  the  affidavit  was  held  insufficient  — The  affidavit  must   "state  that  the 

because  it  did  not  set  forth  the  evidence  continuance   is  not    sought   for    delay 

of  the  witness.  only,  but  that   justice    may  be  done." 

3.  Diligence  to  Procure  the  Testimony.  Tex.  Rev.  Stat.  (1895),  art,  1278.  See 
—  The  affidavit  must  state  that  the  ap-  also  supra,  note  7,  p.  347. 

plicant  "  has  used  due  diligence  to  pro-  8.  The  Statutory  Provisions.  —  First  ap- 

cure   [the   absent]    testimony,    stating  plications  for  a  continuance  on  behalf 

such  diligence,  and  the  cause  of  failure  of  the  defendant  in  a  criminal  case  are 

if  known."     Excepting  the  last  clause  governed   by    Tex.   Code  Crim.   Proc. 

of  the  foregoing  quotation,  it  is  identi-  (1895),  art.  597,  cited  in  the  following 

cal  with  the  showing  required  for  a  first  notes. 

continuance  as  exemplified  in  Form  9.  The  defendant  had  been  committed 
No.  6295,  supra.  In  Little  v.  State,  75  by  a  magistrate  on  a  charge  of  horse- 
Tex.  616,  the  diligence  shown  was  stealing.  He  was  subsequently  in- 
held  insufficient.  dieted,  and  it  was  held  reversible  error 

402  Volume  5. 


6297. 


AD  JO  URNMENTS. 


6297. 


trial  at  this  term  of  the  court  for  the  want  of  the  evidence  oi  Fayeit 
GibbSy  who  resides  in  Walker  county,  in  the  state  of  Texas^^  and  who 
is  a  material  witness  for  him;  that  on  the  same  day  that  the  indict- 
ment was  filed  ^  in  said  cause,  to  wit,  the  ISth  of  October,  i87-i,  he 
made,  by  his  counsel,  application  for  an  attachment  to  Walker 
county  for  said  witness,  and  placed  the  same  in  the  hands  of  M.  M. 
Cone,  Deputy  Sheriff  of  Grimes  county,  with  request  to  serve  the 
same  immediately;  that  said  attachment  has  not  been  returned  to 
this  court  ;3  that  said  defendant  expects  to  prove  by  said  witness, 


when  the  case  was  called  for  trial  to 
refuse  an  application  for  continuance 
on  this  affidavit. 

Forms  Held  Insufficient.  —  See  Shanks 
V.  State,  25  Tex.  Supp.  328;  Murry  v. 
State,  1  Tex.  App.  175. 

Another  precedent  of  the  first  applica- 
tion by  defendant  may  be  found  in 
Beach  v.  State,  32  Tex.  Crim.  Rep.  241, 
which,  omitting  the  formal  parts,  was 
as  follows:  "Now  at  this  term  of  the 
court  comes  the  defendant,  Lute  Beach, 
in  the  above  styled  and  numbered 
cause,  and  says  he  cannot  go  safely  to 
trial  at  this  term  of  the  court,  for  the 
want  of  the  testimony  oi  John  Thomp- 
son. That  said  witness  resides  in  Erath 
county,  Texas,  in  the  neighborhood  of 
the  town  of  Duffan,  in  said  county. 
That  the  defendant  expects  to  prove  by 
said  witness,  John  Thompson,  that  he, 
Thompson,  was  with  the  defendant  on 
the  night  of  the  jist  day  of  October, 
A.  D.  l8<fi?,  in  the  town  of  Stephenville, 
the  time  and  place  where  the  defendant 
is  charged  with  having  carried  a  pistol 
in  the  indictment  in  this  case,  and  that 
he  will  prove  by  said  witness  that  he, 
the  witness,  was  with  defendant  just  a 
few  minutes  before  the  defendant  was 
supposed  to  have  been  seen  with  the 
pistol;  and  that  said  witness  will  testify 
that  the  defendant  had  no  pistol,  but 
had  a  bottle  of  whiskey  in  his  pocket, 
and  that  the  witness  saw  the  defendant 
drop  the  bottle  of  whiskey  out  of  his 
pocket,  and  that  afterward  the  witness 
picked  said  bottle  up,  and  knows  and 
will  testify  that  it  was  not  a  pistol,  but 
was  a  bottle  of  whiskey.  That  these 
facts  have  come  to  the  knowledge  of 
the  defendant  since  the  commencing  of 
this  court.  The  diligence  used  to  pro- 
cure the  attendance  of  said  witness  is 
this:  That  on  thejM  Aai^  ol  December, 
A.  n.  i8<f<P,  the  defendant  caused  to  be 
issued,  out  of  the  county  court  of  Erath 
county,  a  subpoena  for  the  said  Thomp- 
son, and  placed  said  subpoena  in  the 
hands  of  N.  J.  Shand,  sherifT  of  Erath 


county,  on  said  last  named  date;  that 
said  subpoena  is  hereto  attached  and 
made  apart  hereof;  that  said  subpoena 
has  not  been  served  by  reason  of  the 
inclemency  of  the  weather  That  the 
witness  is  not  absent  by  the  procure- 
ment or  consent  of  the  defendant. 
That  the  application  is  not  made  for 
delay.  That  there  is  no  reasonable  ex- 
pectation that  the  attendance  of  said 
witness  can  be  procured  during  the 
present  term  of  the  court,  by  a  post- 
ponement of  the  trial  to  some  future 
day  of  said  term." 

Another  approved  form  in  Austin  v. 
State,  42  Tex.  346,  would  not  now  be 
available  without  amendment,  as  it 
fails  to  conform  to  the  requirements  of 
the  statutory  provisions  now  in  force. 

1.  Sesidence  of  Witness.  —  Tex.  Code 
Crim.  Proc. (1895),  art.  597,  subd.  i,  re- 
quires that  the  affidavit  shall  state  "  the 
name  of  the  witness  and  his  residence 
if  known,  or  that  his  residence  is  not 
known."     See  also  jM/)-a, note  i,  p.  334. 

2.  The  defendant  had  employed  coun- 
sel before  indictment  found,  and  the 
trial  court  erroneously  held  that  he 
should  have  prepared  for  trial  before 
the  presentation  of  an  indictment. 

3.  Diligence  to  Procnre  the  Testimony.  — 
"  The  affidavit  must  state  the  diligence 
which  has  been  used  to  procure  his  at- 
tendance, and  it  shall  not  be  considered 
sufficient  diligence  to  have  caused  to  be 
issued  or  to  have  applied  for  a  sub- 
poena, in  cases  where  the  law  authorizes 
the  issuance  of  an  attachment."  Tex. 
Code  Crim.  Proc.  (1895),  art.  597, 
subd.  2.  In  this  case  the  trial  was 
in  Grimes  county  and  the  witness  re- 
sided in  Walker  county.  In  such  cases, 
viz.,  where  the  witness  resides  in 
another  county,  an  attachment  may  be 
issued  for  him  without  previously  serv- 
ing him  with  a  subpoena.  Tex.  Code 
Crim.  Proc.  (1895),  art.  525.  Where  the 
witness  resides  in  the  county  in  which 
the  trial  is  had,  there  must  be  disobedi- 
ence of  a  subpoena  before  an  attach- 


403 


Volume  5. 


6297.  CONTINUANCES  AND  6297. 

that  one  Phil.  Blue  had  the  horse  charged  to  have  been  stolen  by  the 
accused,  in  the  possession  of  the  said  Blue,  and  that  Blue  invited  the 
accused  to  ride  behind  him,  and  told  the  accused  that  the  horse 
belonged  to  him,  and  that  the  said  Phil.  Blue  placed  said  horse  in  the 
possession  of  the  accused,  and  directed  the  accused  to  ride  the  horse 
up  to  the  house  of  y.  T.  Wilkinson,  who  resides  in  IValker  county ,  and 
ask  if  they  might  stay  all  night,  which  he  did;  that  said  witness  had 
been  with  the  accused  all  the  day  preceding  this  occurrence,  and  the 
part  of  the  night  that  had  elapsed  before  he  met  the  said  Blue,  and 
that  up  to  that  time  the  accused  had  nothing  to  do  with  said  horse; 
that  the  horse  was  taken  out  of  the  possession  of  the  accused  by  the 
aforesaid  y.  T.  Wilkinson  at  his  house,  and  was  not  in  the  possession 
of  the  accused  more  than  ten  minutes;  that  the  accused  had  been 
pulling  fodder  for  Mr.  Estien  in  Grimes  county,  near  the  line  of 
Grimes  and  Walker  counties,  and  was  on  his  way  home  to  his  father's 
home,  who  resides  near  Huntsville,  in  Walker  county,  when  he  accepted 
the  invitation  of  the  said  Phil.  Blue  to  ride  behind  him,  the  said  Blue 
going  in  the  direction  oiHuntsville.^  Affiant  further  says  that  the 
above  facts  are  true.* 

The  said  witness  is  not  absent  by  the  procurement  or  consent  of 
the  accused,^  and  this  application  for  a  continuance  is  not  made  for 
delay.3  [Affiant  further  says  that  there  is  no  reasonable  expectation 
that  attendance  of  the  said  Fayett  Gibbs  can  be  secured  during  the 
present  term  of  the  court  by  a  postponement  of  the  trial  to  some 
future  day  of  said  terra.]  * 


{Jurat  as  in  Form  No.  6295.)  * 


his 

Zouis  X  Dinkens. 

mark 


ment    can     issue,    and    no    averment  Tex.  Code  Crim.  Proc.  (1895).  art.  597, 

relative  to  an  attachment  is  necessary,  subd.  4.     See  also  j«/ra,  note  5,  p.  345. 

Tex.  Code  Crim.  Proc.  (1895),  art,  524.  An    affidavit    stating    that    the    wit- 

A   precedent  of  this  kind  is  exhibited  ness  was  not  absent  by  the  "  fraud  of 

supra,    note  on  p.  403,  in   the  case  of  the   defendant"   was   held   an   insuffi- 

Beach  v.  State,  32  Tex.  Crim.  Rep.  241.  cient   compliance   with    the    foregoing 

It  is  not  sufficient  to  state  in  general  provision.     Bresnan   v.    People,  (Tex. 

terms  that  the  applicant  has  used  due  Crim.  App.  1897)  43  S.  W.  Rep.  in. 

diligence;  he  must  state  what  acts  of  3.  Application  Not  Made  for  Delay. — 

diligence  he  has  done.   Tanner  7/.  State,  The  affidavit  must  state  "  that  the  ap- 

(Tex.  Crim.  App.  1898)   44  S.  W.  Rep.  plication  is  not  made  for  delay."     Tex. 

489.     See  also  supra,  note  5,  p.  339.  Code    Crim.    Proc.     (1895),    art.     597, 

1.  Statement  of  Expected  Testimony  and  subd.  5.  See  also  j«/ra,  note  7,  p.  347. 
MaterialityThereof.  — The  affidavit  must  4.  Necesaity  for  Contintiance  Over  the 
state  "the  facts  which  are  expected  to  Term.  —  The  averment  in  brackets  is 
be  proved  by  the  witness,  and  it  must  required  by  Tex.  Code  Crim.  Proc. 
appear  to  the  court  that  they  are  mate-  (1S95),  art.  597,  subd.   6. 

rial."     Tex.   Code  Crim.   Proc.   (1895),  5.  Jtirat.  — There  was  no  jurat  in  the 

art.   597,  subd.  3.     See  also  supra,  note  report   of    the    case,    but    Tex.    Code 

7,  p.  335.                                       *  Crim.   Proc.   (1895),   art.   599,  provides 

2.  Witness  Wot  Absent  by  Procurement,  that  "all  applications  for  continuance 
etc.  —  The  affidavit  must  state  "that  on  the  part  of  the  defendant  must  be 
the  witness  is  not  absent  by  the  pro-  sworn  to  by  himself." 

curement  or  consent  of  the  defendant." 

404  Volume  5. 


6298.  ADJOURNMENTS.  6299. 

TEXAS — CRIMINAL   CASE  —  SECOND   OR   SUBSEQUENT  APPLICATION. 

Form  No.  6298.' 

{Commencing  as  in  Form  No.  6297,  and  continuing  down  to  *).  That 
the  same  testimony  cannot  be  procured  from  any  other  source  known 
to  the  affiant,^  and  that  the  affiant  has  reasonable  expectation  of  pro- 
curing the  same  at  the  next  term  of  the  court  ^  (concluding  as  in  Form 
No.  6297). 

6.  For  Absence  of  Documents.^ 

Form  No.  6299. 

(  Title  of  court  and  cause,  and  venue  and  commencement. )  *  That  cer- 
tain papers  and  documents,  material  to  their  defense  in  this  cause, 
are  now  in  the  hands  of  Antonio  M.  Mico,  who  resides  at  and  whose 
post-office  address  is  San  Blais,  Mexico,  and  among  the  said  papers  and 
documents  the  defendants  specify  the  following:  (i)  The  original  de- 
nouncement of  the  mine  of  New  Almaden  and  the  judicial  possession 
given  of  the  same  in  the  year  18^.  (2)  The  confirmation  of  said 
denouncement  and  possession  by  the  supreme  government  of 
Mexico  in  the  year  18^6,  and  prior  to  the  late  declaration  of  war  by 
the  United  States  against  the  republic  of  Mexico.  (3)  The  original 
grant  of  land,  including  said  mining  possession,  made  by  the  supreme 
government  of  Mexico  (prior  to  the  declaration  of  war  as  aforesaid) 
to  the  owners  of  said  mine.  (4)  The  original  documents  showing 
the  ownership  of  said  mine  and  land  in  the  parties  from  whom  the 
defendants  derive  title;  and  the  defendants  verily  believe  that  the  land 
ferred  to  in  said  papers  and  documents  is  the  same  land  as  that  upon 
which  the  pretended  trespass  is  alleged  in  plaintiff's  complaint  to 
have  been  committed.  And  the  defendants  further  ^ay  that  they 
have  exercised  all  due  diligence  to  procure  the  said  papers  and  docu- 
ments at  the  present  term  of  this  court,  by  writing  on  the  twentieth 
day  of  November,  i850,  to  the  said  Antonio  M.  Mico  at  San  Blais, 
Mexico,  who  holds  them,  but  to  this  date  the  defendants  have  not 

1.  Applications  for  continuance  on  (1895),  art.  598,  subd.  2.  See  also  j'«/ra, 
the  part  of  the  defendant  subsequent  to     note  8,  p.  345,  note  3.  p.  347. 

the  first  must  be  supported  by  an  aflB-  In  Tanner  v.  State,  (Tex.  Crim.  App. 

davit  stating  in  addition  to  what  is  re-  1898)  44  S.  W.  Rep.  489,  the   affidavit 

quired  in   first  applications,  as  shown  stated  that  the    applicant  expected  to 

in  Form  No.  6298,  the  facts  specified  in  procure  the  attendance  of  the  witness 

the  following  notes.     Tex.  Code  Crim.  at  a  subsequent  term   because  the  wit- 

Proc.  (1895),  art.  598.  ness  was  under  indictment  in  the  same 

2.  Testimony  Not  Elsewhere  Obtainable,  county  in  a  local  option  case.     "It  is 

—  The  affidavit  must  state  "that  the  questionable,"  said  the  court,  "  whether 
testimony  cannot  be  procured  from  any  this  fact  would  justify  the  assertion  in 
other  source  known  to  the  defendant."  his  application  of  his  expectation.  It 
Tex.  Code  Crim.  Proc.  (1895),  art.  598,  might  suggest  the  contrary." 

subd.  I.    See  also  supra,  note  2,  p.  343.        4.  As  a  Ground  for  Continuance.  —  See, 

3.  Expectation  of  Frocoring  Testimony,    generally,    article     Continuances,     4 

—  The  affidavit    must  state  "that    the  Encycl.  of  PI.  and  Pr.    849,  880. 
defendant  has   reasonable  expectation  6.  For  title  of  court  and  cause,   and 
of  procuring  the  same  at  the  next  term  venue  and  commencement  of  affidavits 
of  the  court."     Tex.  Code  Crim.  Proc.  for  continuances,  generally,  see  Forms 

Nos.  6272  to  6297,  supra. 
4a5  Volume  5. 


6300.  CONTINUANCES  AND  6300. 

received  them,  this  delay  having  been  caused,  as  defendants  verily 
believe,  by  the  failure  of  the  mail  steamers  running  from  Panama 
to  San  Francisco  to  touch,  as  heretofore  has  been  their  custom,  at  the 
port  of  San  Blais  in  Mexico,  from  which  place  the  defendants  have 
expected,  and  still  expect,  to  receive  said  papers.^ 

And  the  defendants  further  aver  that  the  said  papers  and  docu- 
ments for  which  they  have  sent  as  aforesaid,  and  which  they  are 
daily  expecting  to  receive,  are  absolutely  necessary  to  them  in  the 
above  entitled  cause,  and  that  they  cannot  proceed  with  the  trial  of 
the  cause  without  said  papers  and  documents;  that  they  expect  and 
believe  they  can  procure  the  same  by  the  next  term  of  this  court; 
and  that  this  application  is  not  made  for  delay,  but  that  justice  may 
be  done. 

{Signature  and  jurat. )  ^ 

7.  On  Account  of  Another  Suit  Pending. 

GARNISHMENT    PROCEEDINGS   PENDING    IN    ANOTHER   ST  AXE.  ^ 

Form  No.  6300. 

{Title  of  court  and  cause,  and  venue  ana  commencement^^  that 
heretofore,  to  wit,  on  the  third  day  of  January,  in  the  year  i8P<?, 
John  Jones  commenced  an  action  of  debt  against  the  said  John 
Doe,  the  plaintiff  herein,  for  the  sum  of  one  thousand  dollars  and 
damages,  in  the  District  Court,  in  the  state  of  Nevada,  and  duly  prose- 
cuted his  said  claim  to  final  judgment,  which  sum  is  largely  in 
excess  of  the  amount  sought  to  be  recovered  by  said  plaintiff  herein, 
to  wit,  five  hundred  dollars  in  excess  thereof;  that  on  the  tenth  day 
of  March,  in  the  year  \W8,  and  before  the  commencement  of  this 
action,  a  writ  of  garnishment  was,  at  the  instance  and  in  the  name  of 
the  said  John  Jorus,  duly  issued,  according  to  the  laws  of  the  said 

1.  This  form  is  a  slight  modification  supposed  reason  for  failure  to  obtain  it, 

of  an   affidavit  used   in   an   ejectment  (5)  Reasonable  expectation  that  it  will 

case  in   California,  which  is  quoted  in  be    procured    by    the    next    term,     (6) 

U.  S.  V.  Castillero,  2  Black  (U.  S.)  37.  That  the  application   is  not  made  for 

In  some   of   the   states   there   is   no  delay, 

express  statutory  provision  or  rule  of  The  forms  of  affidavits  for  continu- 

court  concerning  affidavits  for  continu-  ance  on  account  of  an  absent  witness 

ance  on   account    of    the    absence    of  (Forms   Nos.   6272    to   6298),    and    the 

documentary  evidence.     In  other  states  notes  thereto,  should  also  be  consulted 

affidavits  for  continuance  on  this  ground  for  local  statutory  provisions,    if  any 

are  regulated   in   the  same  section   of  there  be,  which  apply  to  all  affidavits 

the  statute  which  prescribes  the  requi-  for  continuance;  as,  for  instance,  that 

sites  of   affidavits   for  continuance   on  the  affidavit  must  state   an  excuse  for 

account  of   an   absent   witness.     It   is  not  making  an  earlier  application, 

believed  that  this  form  not  only  meets  2.  Signatare   and  jurat    of    affidavits 

the  requirements  of  any  local  unwrit-  for  continuances,  generally,  see  Forms 

ten  rule  of  practice,  but  also  complies  Nos.  6292  to  6297,  supra. 

with   any  of    the  statutory   provisions  3.  As  a  Oroond  for  Contintiance.  —  See  i 

just  mentioned.     The  practitioner  will  Encyc.  of  PI.  and  Pr.    767. 

observe  that  it  shows:  (i)  The  materi-  4.  For  title  of    court    and    canso  and 

ality  of  the  evidence,  describing  it,  (2)  venue  and  commencement  of  affidavits 

Where  the  evidence  is  believed  to  be,  for  continuances,  generally,  see  Forms 

(3)  Diligent  efforts  to  obtain  it,  (4)  The  Nos.  6272  to  6297,  supra. 

406  Volume' 5. 


630 1 .  ADJOURNMENTS.  630 1 . 

state  of  Nevada,  to  wit  {^Here plead  the  statute  authorizing  the  proceeding), 

commanding  this   defendant   to  appear  in  said-court  on  the 

day  oi  March,  in  the  year  \%98,  and  answer  under  oath  what  he 
was  at  that  time  indebted  to  the  said  John  Doe,  the  defendant  in  said 
proceedings  and  the  plaintiff  herein;  that  this  defendant  did  so 
appear  as  he  was  commanded  to  do  in  and  by  said  writ  of  garnish- 
ment, and  did  make  statement  under  oath  in  said  court  as  by  said 
writ  he  was  required  to  do,  that  he  was  indebted  to  the  sa\d  John  Doe 
in  the  sum  oi  Jive  hundred  doWars,  which  is  the  same  debt  sought  to 
be  recovered  by  the  sa.\d  John  Doe  in  this  action,  and  no  other;  that 
said  writ  of  garnishment  was  duly  issued  according  to  the  laws  of  said 
state,  providing  that  (/fere  state  the  due  performance  of  the  conditions 
precedent  to  the  issuance  of  the  writ),  and  was  duly  served  on  this 
defendant  before  the  leturn  day  thereof,  and  was  duly  returned  to 
said  court,  and  that  said  debt,  due  from  this  defendant  to  the  said 
John  Doe  as  aforesaid,  was  then  and  there  placed  in  the  custody  of 
the  law;  that  said  garnishment  and  attachment  proceedings  are  still 
pending  and  undetermined  in  the  said  court  of  the  said  state;  and 
that  this  application  is  not  made  for  delay,  but  that  justice  may  be 
done.      {Signature  and  Jurat.)  ^ 

8.  Fop  Surprise  at  Trial.* 

a.  By  Amendment  of  Pleadingrs.* 

Form  No.  6301 . 
(  Title  of  court,  cause  and  venue  as  in  Form  No.  6285.) 

1.  Signstore  and  jurat  of  affidavits  for        Kansas.  —  Gen.   Stat.   (1897),    c.   95, 
continuances,    generally,     see    Forms    §  142. 

Nos.  6272  to  6297,  ^w/rrt.  Kentucky.  —  Code  Civ.   Proc.  (i888), 

2.  For  Surprise  at  Trial.  —  The  motion     §  136. 

should    be   made   promptly   and    sup-  Missouri. —  Burns*  Anno.    Pr.   Code 

ported  by  affidavit.     4   Encycl.  of  PI.  (1896),  §  503. 

and  Pr.  863  et  seq.  Nebraska.  —  Comp.    Stat.    (1897),    § 

3.  At  common  Law,  it  was  conclusively  5738. 

presumed   that   the  defendant   in  any  Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 

suit  was  surprised  and  unprepared  for  5117. 

trial    whenever    the    declaration    was  In  Georgia,  '^  When  any  amendment 

amended   in   any  material   particular,  shall  be  made  to  pleadings  or  other  pro- 

and   the  cause  had  to  be  continued,  if  ceedings  in  the  cause,  if  the  opposite 

the  defendant  desired   it,  without  any  party    will   make   oath,   or    his    coun- 

affidavit  therefor.    Chicago,  etc.,  R.  Co.  sel  state  in  his  place,  that  he  is  sur- 

V.  Goyette,   32   111.   App.   576;    Illinois  prised  by  such  amendment,  and  that  he 

Mut.  F.  Ins.  Co.  V.  Marseilles  Mfg.  Co.,  is  less  prepared  for  trial,  and  how,  than 

6  111.  236;  Hawks  V.  Lands,  8  111.  227;  he  would    have  been   if  such  amend- 

Schnertzel  v.  Purcell,  i  Cranch  (C.  C.)  ment  had  not  been  made,  and  that  such 

246!  surprise  is  not  claimed  for  the  purpose 

By  statuto,  in  many  of  the  states,  the  of  delay,  the  case  may  be  continued  in 

amendment  of  pleadings  does  not  war-  the  discretion  of  the  judge,  and  charged 

rant  a  continuance,  unless  the  court  is  to  the  amending  party."     Code  (1895), 

satisfied  by  affidavit,  or  otherwise,  that  §   5128.     See  for  a  case  of   reversible 

the  adverse  party  cannot  be  ready  for  error  in   refusing  to  allow  a  continu- 

trial  in  consequence  of  the  amendment,  ance  Central  R.,  etc.,  Co.   z/.  Jackson, 

Arkansas.  —  Sand.  &  H.  Dig.  (1894),  94  Ga.  640. 

§  5774.  In  Indiana,  "No  cause  shall  be  de- 

lotua.  — Anno.  Code  (1897),  ^  3602.  layed  by  reason  of  an  amendment  ex- 

407  Volume  5. 


6301. 


CONTINUANCES  AND 


6301. 


Richard  Wolfe,^  being  first  duly  sworn,  on  oath  says  that  he  is  the 
defendant  in  the  above  entitled  cause;  that  on  the  trial  the  plaintiff, 


ceptingonly  the  time  to  make  up  issues, 
but  upon  good  cause  shown  by  affidavit 
of  the  party  or  his  agent  asking  such 
delay;"  and  "the  affidavit  shall  show 
distinctly  in  what  respect  the  party 
asking  the  delay  has  been  prejudiced 
ir  his  preparation  for  trial  by  the 
amendment."      Horner's    Stat.    (i8g6), 

§§  394.  395. 

In  Danley  v.  Scanlan,  ii6  Ind.  lo,  the 
substance  of  an  affidavit  for  a  continu- 
ance by  the  defendant  is  set  forth, 
which  was  held  a  sufficient  showing  of 
surprise  on  account  of  an  amendment 
of  the  complaint  on  the  trial,  and  judg- 
ment was  reversed  for  refusal  to  allow 
a  continuance. 

Necessity  for  Affidavit.  —  When  the 
statute  positively  requires  an  affidavit, 
a  motion  for  continuance  without  an 
affidavit  will  be  overruled.  Chicago, 
etc.,  R.  Co.  V.  Stein,  75  111.  41;  Lindsey 
V.  Lindsey,  40  111.  App.  389;  Clause  v. 
Bullock  Printing  Press  Co.,  20  111.  App. 
113.  And  an  offer  to  make  and  file  an 
affidavit,  without  actually  doing  so,  is 
not  enough.  Ryan  v.  People,  62  111. 
App.  355. 

Discretion  of  Court.  —  Even  if  the  affi- 
davit is  formally  sufficient,  the  refusal 
of  a  continuance  will  not  constitute 
error  where  it  appears  that  there  was 
no  abuse  of  discretion.  Chicago,  etc., 
R.  Co.  V.  Goyette,  32  111.  App.  577. 

For  numerous  cases  where  the  re- 
fusal of  a  continuance  was  sustained, 
and  others  where  it  caused  a  reversal 
of  the  judgment  on  appeal,  see  4 
Encycl.  of  PI.  and  Pr.  836  et  seq. 

Surprise.  —  The  affidavit  must  show 
that  the  party  was  taken  by  surprise  by 
the  amendment.  Keltenbaugh  v.  St. 
Louis,  etc.,  R.  Co.,  34  Mo.  App.  151; 
Ledbetter  v.  McWilliams,  90  Ga.  44; 
Atlanta  Cotton-Seed  Oil  Mills  v.  Coffey, 
80  Ga.  145;  Peters  v.  West,  70  Ga.  343. 
And  that  the  amendment  makes  it 
necessary  to  produce  evidence  which 
would  not  have  been  required  if  the 
amendment  had  not  been  made.  Fisk 
V.  Miller,  13  Tex.  225. 

Hence  an  amended  pleading  which 
states  only  facts  which  could  reason- 
ably have  been  anticipated  from  the 
pleadings  as  they  before  stood  is  not 
a  ground  for  continuance.  Lamb  v. 
Beaumont  Temperance  Hall  Co.,  2 
Tex.  Civ.  App.  289;  Texas,  etc.,  R.  Co. 
V.  Neal,  (Tex.  Civ.  App.  1895)  33  S.  W. 


Rep.  693;  Wilcox  V.  American  Sav. 
Bank,  21  Colo.  348;  Jones  v.  Hender- 
son, 49  Ga.  170;  Wilson  Coal,  etc.,  Co.  v. 
Hall,  etc..  Woodworking  Mach.  Co.,  97 
Ga.  330;  Constitution  Pub.  Co.  v.  Way, 
94  Ga.  120;  Lewis  v.  Bracken,  97  Ga. 
337;  Pifer  V.  Stanley,  57  Mo.  App.  516; 
Cozzens  v.  Chicago  Hydraulic  Press 
Brick  Co.,  166  111.  213. 

And  if  there  are  several  allegations 
in  the  amendment  the  affidavit  must 
point  out  which  allegation  the  appli- 
cant regards  as  introducing  new  mat- 
ter. Lamb  v.  Beaumont  Temperance 
Hall  Co.,  2  Tex.  Civ.  App.  289. 

On  the  other  hand,  justifiable  igno- 
rance of  an  important  amendment  until 
the  trial  demands  a  continuance  on 
proper  application.  Central  R.,  etc.,  Co. 
V.  Jackson,  94  Ga.  640.  Or  new  matter 
pleaded  on  the  eve  of  trial.  Galveston, 
etc.,  R.  Co.  V.  Smith,  9  Tex.  Civ.  App. 
450.  Or  on  the  trial.  Vale  v.  Trader,  5 
Kan.  App.  307. 

Meritorioas  Defense.  —  The  defendant's 
affidavit  for  continuance  must  show 
that  he  has  a  meritorious  defense. 
Though  the  statutes  are  silent  on  this 
point,  the  courts  enforce  the  rule.  Kel- 
tenbaugh V.  St.  Louis,  etc.,  R.  Co.,  34 
Mo.  App.  151;  Mills  V.  Bland,  76  111. 
381;  Cummings  w.  Rice,  9Tex.  527.  And 
if  the  affidavit  is  evasive  on  this  point  it 
will  not  sustain  the  motion.  Ravens-' 
wood  Bank  v.  Hamilton,  (W.  Va.  1897) 
27  S.  E.  Rep.  296,  where  the  insufficient 
affidavit  is  set  forth  verbatim.  And  it 
must  appear  that  he  has  a  meritorious 
defense  to  the  claim  shown  by  the 
amendment  as  well  as  by  the  original 
pleading.  Colhoun  v.  Crawford,  50 
Mo.  458. 

Materiality  of  Expected  Evidence. —  In 
Storch  V.  McCain,  85  Cal.  307,  it  was 
held  that  upon  a  motion  for  continuance 
on  the  ground  of  absence  of  evidence 
to  meet  the  issues  raised  by  the  amend- 
ment the  affidavit  must  show  the  ma- 
teriality of  the  evidence  expected  to 
be  obtained  and  that  due  diligence  has 
been  used  to  obtain  it. 

1.  The  form  in  the  text  is  suggested  by 
the  affidavit  set  forth  in  Wolfe  v. 
Johnson,  152  111.  283,  which  was  held 
insufficient,  but  is  herein  modified  and 
expanded  in  some  essential  particulars. 
It  is  here  assumed  that  the  action  is 
trespass  on  the  case  to  recover  dam- 
ages under  section  9  of  the  Dram-shop 


408 


Volume  5. 


6301. 


AD  JO  URNMENTS. 


6301. 


by'leave  of  court,  amended  the  declaration  filed  herein  by  filing  an 
additional  count  which  the  defendant  believes  and  is  advised  by  his 
counsel  makes  a  substantially  different  case  from  that  made  by  the 
original  declaration,  and  that  in  consequence  thereof  the  defendant 
is  unprepared  to  proceed  to  and  with  the  trial  of  the  cause  at  this 
term;  that  it  is  alleged  in  the  additional  count  \.\\z.t  James  IVo/fe  kept 
a  dram-shop  with  the  knowledge  of  this  defendant  onju/y  Isty  i890, 
and  then  sold  intoxicating  liquors  to  the  plaintiff's  husband;  that  until 
such  additional  count  was  filed  the  defendant  supposed  that  the 
plaintiff  intended  to  produce  testimony  only  to  prove  that  the  defend- 
ant was  the  keeper  of  the  dram-shop  and  sold  said  liquors  to  her 
husband,  all  of  which  the  defendant  denies;  that  if  the  fact  alleged 
in  the  additional  count  had  been  alleged  in  the  original  declaration 
the  defendant  could  and  would  produce  James  Wolfe,  who  would 
testify  that  he  did  not  sell  or  give  any  kind  of  intoxicating  liquors 
whatsoever  to  the  plaintiff's  husband  on  July  Isl,  i890,  nor  at  any 
other  time  before  or  since  that  date;^  and  the  defendant  believes  that 


act  (Rev.  Stat.  111.,  c.  43),  the 
plaintiff's  declaration  alleging  that  on 
July  1st,  1890,  the  defendant,  Richard 
Wolfe,  was  the  keeper  of  a  dram-shop, 
and  being  sucii  keeper,  sold  intoxi- 
cating liquors  to  the  plaintiff's  husband 
and  caused  him  to  become  intoxicated, 
whereby,  etc.  The  defendant  files  a 
general  denial.  On  the  trial  the  plain- 
tiff is  allowed  to  amend  his  declaration 
by  filing  an  additional  count  charging 
that  one  James  Wolfe  was  the  keeper 
of  a  dram-shop,  and  being  such  keeper 
sold  intoxicating  liquors  to  the  plain- 
tiffs husband  on  July  ist,  1890,  thereby 
causing  him  to  become  intoxicated; 
that  the  defendant  was  then  the  owner 
of  the  building  in  which  such  dram- 
shop was  kept;  that  he  had  knowledge 
that  a  dram-shop  was  kept  in  said 
building  and  that  intoxicating  liquors 
were  sold  therein;  and  that  he  per- 
mitted the  said  James  Wolfe  to  keep 
said  dram-shop  and  sell  intoxicating 
liquors  therein;  and  that  in  conse- 
quence of  such  intoxication  so  as  above 
produced  in  her  husband  the  latter 
assaulted,  beat  and  bruised  her,  etc., 
and  that  the  defendant  was  liable  to 
her  as  such  owner.  Whereupon  the 
defendant  moves  for  a  continuance  and 
files  his  affidavit  as  herein  set  forth. 

In  niinoia,  in  common-law  actions, 
"  no  amendment  shall  be  cause  for 
continuance  unless  the  party  affected 
thereby  or  his  agent  or  attorney  shall 
make  affidavit  that  in  consequence 
thereof  he  is  unprepared  to  proceed  to 
or  with  the  trial  of  the  cause  at  that 
term,  stating  in  such  affidavit  what 
particular  fact  or  facts  the   party  ex- 


pects to  prove  by  such  evidence  and 
that  he  verily  believes  that  if  the  cause 
is  continued  he  will  be  able  to  procure 
the  same  by  the  next  term  of  the 
court."  Starr  &  C.  Anno.  Stat.  111. 
(1896),  p.  3001,  par.  26.  See  also  as  to 
affidavit  for  continuance  on  account 
of  amendment  of  pleadings  in  chancery 
Starr  &  C.  Anno.  Stat.  111.  (1896),  p.  589, 
par   37. 

1.  The  particular  facts  which  the  ap- 
plicant expects  to  prove  must  be  set 
forth.  Cassem  v.  Galvin,  158  111.  34; 
Evans  v.  Marden,  154  111.  446. 

Instifficient  Form,  and  Comments  of 
Coort.— In  Mills  v.  Bl^nd,  76  111.  381, 
upon  amendment  of  the  declaration 
the  defendant  moved  for  a  continuance 
upon  an  affidavit  as  follows:  "  Erastus 
W.  Mills,  being  duly  sworn,  upon  his 
oath  says  he  is  one  of  the  defendants 
in  the  above  entitled  cause  and  that 
he  is  not  prepared  to  proceed  to  trial 
on  account  of  the  amendments  at  this 
term  and  believes  he  will  be  ready 
at  the  next  term."  The  court  said: 
"The  affidavit  fails  to  show  that  the 
defendants  had  any  defense  whatever 
upon  the  merits  to  the  action  or  that 
they  were  taken  by  surprise  by  the 
amendment  made  to  the  declaration. 
The  affidavit  in  order  to  authorize  a 
continuance  of  the  cause  should  have 
contained  facts  from  which  the  court 
could  have  seen  that  by  reason  of  the 
amendment  made  the  defendants  were 
not  then  ready  for  trial  and  that  at 
another  term  of  court  a  meritorious 
defense  could  have  been  interposed  to 
the  plaintiff's  cause  of  action." 

^  Volume  5. 


6302.  CONTINUANCES  AND  6302. 

said  facts  are  true.  The  defendartt  says  that  said  James  Wolfe  is  now 
in  the  city  of  Nnv  York,  and  was  not  present  at  the  trial  because  the 
defendant  did  not  know  that  his  testimony  would  become  material 
under  the  issues  made  by  the  pleadings;  and  the  defendant  verily 
believes  that  if  this  cause  is  continued  he  will  be  able  to  procure  the 
testimony  of  said  Wolfe  to  the  facts  as  above  stated  by  the  next  term 
of  this  court.     (^Signature  and  mrat  as  in  Form  No.  6285.) 

b.  By  Suppression  of  Deposition. 

Form  No.  6302. 

(Precedent  in  Grigsby  v.  May,  57  Tex.  256.) 

D.  B.  Grigsby  et  at.., ' 
No.  2262. 

vs. 
W.  H.  Bo7vles  et  al. 

Now  come  the  plaintiffs  in  the  above  entitled  cause  and  move  the 
court  to  [permit  them  to  withdraw  their  announcement  of  ready,  and 
to]  ^  grant  them  a  continuance  of  this  cause  as  to  the  defendant  M. 
A.  May,  because  the  court  has,  upon  the  verbal  motion  of  defendant, 
excluded  the  depositions  of  Lucinda  Madden  and  D.  H.  Edens,  for 
the  reason  that  plaintiffs  are  unable  to  make  proof  of  service  upon 
said  defendant  of  notice  of  filing  interrogatories  upon  which  said  depo- 
sitions were  taken;  plaintiffs  aver  that  they  cannot  go  to  trial 
without  the  said  depositions;  that  plaintiffs  claim  the  land  in  con- 
troversy herein  as  the  heirs  of  their  mother,  Louisa  Edens,  formerly 
Louisa  Grigsby;  that  in  order  to  establish  their  title  to  said  land  it  is 
necessary  for  them  to  show  that  said  land  was  a  part  of  the  community 
estate  of  their  said  mother  and  her  former  husband,  John  Grigsby, 
and  also  to  show  that  they  are  the  children  of  their  said  mother,  and 
the  number  of  children  that  their  said  mother  had;  that  by  said  depo- 
sitions they  have  fully  proved  how  many  children  their  said  mother 
had;  that  they  are  the  children  of  said  Louisa  Edens,  formerly 
Grigsby;  that  she  is  dead,  and  that  the  land  in  controversy  was  a 
part  of  the  community  estate  of  their  said  mother;  that  they  know 
of  no  other  witnesses  by  whom  they  can  prove  these  facts;  that  they 
caused  these  said  depositions  to  be  taken  for  the  purpose  of  proving 
these  facts;  that  after  filing  the  interrogatories  upon  which  said  depo- 
sitions were  taken,  and  long  before  the  issuance  of  the  commission 
to  take  said  depositions,  plaintiffs  had  a  precept  regularly  prepared 
and  issued  by  the  clerk  of  this  court  and  directed  to  the  sheriff  or 
any  constable  of  Dallas  county,  commanding  him  to  notify  the  said 
defendant,  who  is,  and  was  then,  a  resident  of  Dallas  county,  Texas, 
that  said  interrogatories  had  been  filed  and  that  said  depositions 
would  be  taken;  that  immediately  upon  its  issuance  said  precept  was 
placed  in  the  hands  of  some  proper  officer  to  be  by  him  served,  but 
what  officer  plaintiffs  do  not  now  remember;  that  plaintiffs  had  made 
diligent  search  for  said  precept,  but  the  same  cannot  now  be  found; 

1.  Where  the  statute  does  not,  as  in  for  trial,  the  words  in  brackets  should 
Texas,  require  announcement  of  ready     be  omitted. 

410  Volume  5. 


6303.  ADJOURNMENTS.  6303. 

that  plaintiffs  do  not  know  of  any  one  by  whom  they  can  prove  the 
fact  of  the  service  of  said  precept;  that  no  motion  has  ever  been 
filed  by  said  defendant  to  suppress  said  depositions  for  want  of  such 
notice,  although  said  depositions  have  been  on  file  among  the  papers 
of  this  cause  since  the^rj/  day  of  November^  a.  d.  i87P;  that  plaintiff 
had  no  notice  before  the  commencement  of  this  trial  that  defendant 
would  object  to  said  depositions  on  account  of  a  want  of  such  notice, 
and  plaintiffs  have  been  surprised  by  the  ruling  of  the  court  in  re- 
quiring plaintiffs  to  make  proof  of  such  notice,  and  in  sustaining  the 
verbal  motion  of  defendant  to  exclude  said  depositions  for  want  of 
said  proof  of  said  notice.  Plaintiffs  aver  that  the  said  Lucinda 
Madden  and  D.  H.  Edens  are  now,  and  have  been  since  the  institu- 
tion of  this  suit,  residents  of  Houston  county,  Texas,  and  are  not 
now  in  Dallas  county;  that  plaintiffs  will  have  the  testimony  of  said 
witnesses  by  the  next  term  of  this  court;  that  this  application  for  a 
continuance  is  not  made  for  delay,  but  that  justice  may  be  done. 
This  application  is  made  and  sworn  to  by  Jeff.  Word,  Jr.,  and 
Richard  Morgan,  attorneys  for  plaintiffs,  because  the  said  plaintiffs 
are  not  present.  They  do  not  reside  in  Dallas  county,  and  are  not 
now  in  Dallas  county. ^ 

Jeff.  Word,  Jr. 
Richard  Morgan. 
Sworn  to  and  subscribed  before  me, 

H.  W.  Jones,  Clerk  District  Court,  Dallas  Co. 

e.  By  Forged  Written  Evidence. 
Form  No.  6303. 

(Precedent  in  Hastings  v.  Hastings,  31  Cal.  96.)' 
[In  the  Superior  Court  of  the  county  of  Solano^  state  of  California.^ 
S.  C.  Hastings,  plaintiff,       )  ^ 

against  >•  Affidavit  for  Continuance. 

D.  N.  Hastings,  defendant.  ) 
State  of  California,  ]       -.3 
County  of  Solano.     [      "J 

L.  B.  Mizner,  being  duly  sworn,  says  that  he  is  the  attorney  for  the 
plaintiff  in  the  above  entitled  action,  and   that  since  trial  of  said 

1.  The  supreme  court  said:     "There  ance    showed    the    materiality   of  the 

was  error  in  the  action  of  the  court  in  evidence  and  was  otherwise  sufficient 

sustaining  an  oral  objection  to  the  depo-  the    motion    should    have    been    sus- 

sitions,  for  which   the  judgment   must  tained." 

be  reversed.     The  court  also  erred  in  For   another  case  of  surprise  by  the 

overruling  the  motion  of  plaintiffs  to  suppression  of  depositions  see   Moore 

withdraw  the  announcement  of  readi-  v.  Smith,  88  Ky.  151. 

ness  for   trial   and  continue   the  case  2.    The   case    was   tried    before    the 

based  upon  the  erroneous  ruling  above  court,  a  jury  having  been  waived.     It 

stated.     The  depositions  had  been  on  was   held  that  a  continuance  on  this 

file  over  two  years  and  no   objection  affidavit  was  a  proper  exercise  of  dis- 

was  made  to  the  same  until  offered  in  cretion. 

evidence  on  the  trial.     Under  the  cir-  8.  The  words  to  be  supplied  in  [  ] 

cumstances    the    plaintiff    could    well  are  not  found  in  the  reported  case,  but 

claim  that  they  had  been  taken  by  sur-  have  been  added  to  render  the    form 

prise,  and  as  the  affidavit  for  continu-  complete. 

411  Volume  5. 


6304.  CONTINUANCES  AND  6304. 

action  ^  he  has  discovered  that  the  pretended  receipt  offered  in  evi- 
dence in  said  case,  purporting  to  have  been  signed  by  said  S.  C. 
Hastings  in  favor  of  said  D.  N.  Hastings  for  one  thousand  and  eighty 
dollars,  was  in  fact  signed  by  said  S.  C.  Hastings  for  Lloyd  Tevis,  and 
that  the  name  "  Lloyd  Tevis  "  has  been  removed  from  said  receipt 
without,  as  this  deponent  believes,  the  consent  of  said  6".  C.  Hastings 
or  Tevis,  and  that  said  fact,  or  at  least  some  word  or  words,  or  name, 
has  or  have  been  removed  from  said  receipt  in  fraud  of  and  to  the 
prejudice  of  said  Hastings  in  this  action,  and  that  the  same  appears 
upon  the  face  of  said  receipt;  that  this  deponent  had  never  seen  said 
receipt  until  it  was  produced  in  the  trial  of  this  case  yesterday,  and 
that  no  copy  of  said  receipt  appears  in  the  pleadings  or  was  ever 
served  upon  the  deponent  or  the  said  plaintiff,  to  the  best  of  depo- 
nent's information  and  belief;  that  deponent  objected  to  the  intro- 
duction of  said  receipt  on  the  ground  that  the  same  had  been  altered. 
Whereupon  deponent  asks  that  this  case  be  reserved  for  further 
consideration  until  the  next  regular  term  of  the  court;  that  this 
application  is  not  made  for  delay  but  that  justice  may  be  done. 

Z.  B.  Mizner. 
Subscribed  and  sworn  to  before  me  this  19th  day  of  May,  iS65. 

W.  J.  Costigan, 

Deputy  Clerk. 

9.  Additional  or  Amended  Affidavit.^ 

Form  No.  6304. 

(Precedent  in  Bryce  v.  Jones,  38  Tex.  206.)' 

[(^Jttle  of  court,  cause  and  venue  as  in  Form  No.  6295. y\'^ 
With  leave  of  court,  now  come  plaintiffs  and  say,  that  on  yesterday, 
since  12  o'clock,  one  of  the  plaintiffs,  W.  M.  Bryce,  went  to  the  resi- 
dence of  the  said  witness,  A.  P.  Swisher,  for  the  purpose  of  securing 
his  attendance,  so  that  there  might  not  be  a  failure  of  trial  in  con- 
sequence of  his  absence,  and  for  the  purpose  of  tendering  said  wit- 
ness his  fees,  and  requesting  said  witness  to  be  present  upon  the 

1.  The  court  held,  however,  that  al-  attachment  after  obtaining  the  post- 
though  the  judge  had  orally  announced  ponement  on  the  preceding  day.  But 
his  decision,  the  case  had  not  been  the  precedent  is  instructive  in  that  it 
tried  to  a  legal  intent,  since  the  de-  illustrates  the  possible  utility  of  an  ad- 
cision  itself  had  not  been  entered  in  the  ditional  or  amended  affidavit  in  supply- 
minutes,  or  reduced  to  writing  by  the  ing  details  relating  to  diligence  used 
judge,  and  signed  by  him  and  filed  which  may  not  have  been  stated  with 
with  the  clerk,  as  the  statute  required,  sufficient   fullness  in   the  original  affi- 

2.  When  Allowable.  — See  4  Encycl.  davit.  See  also  State  v.  Evans,  i  Overt, 
of  PI.  and  Pr.  875.  (Tenn.)  216;  Lucas  v.  Sevier,  i  Overt. 

3.  The  original  and  counter  affidavits  (Tenn.)  105;  McNealley  v.  State,  (Wy- 
are  set  forth  in  Form  No.  6308,  and  the  oming,  1894)  36  Pac.  Rep.  824;  Petty  z/. 
note  to  that  form.  State,  4    Lea    (Tenn.)    326;    Com.    v. 

The  showing   for  a  continuance  by     Hourigan,  89  Ky.  305. 
the    original    and   amended   affidavits        4.  The  words   and    figures   enclosed 
was    held    to    be    insufficient    for   the     by  [  ]  are  not  found   in    the   reported 
reason  that  the  plaintiff  who  demanded     case,  but  have  been  added  to  complete 
the  witness  should  have  resorted  to  an     the  form. 

412  Volume  5. 


6305.  ADJOURNMENTS.  6305. 

trial  of  this  cause  when  called  this  morning.  Plaintiff  further  states, 
that  the  said  Swisher  was  not  at  home  when  the  said  Bryce  went  to 
see  him  yesterday,  and  could  not  be  found.  Plaintiff  further  states, 
that  the  said  Swisher  did,  on  Friday  last,  the  thirty-first  ^y  oi  March, 
i87i,  during  the  term  of  this  court,  and  before  this  case  was  ever 
reached  or  called,  promise  plaintiff  that  he  would  not  fail  to  be 
present  and  testify  as  commanded  to  do  by  the  subpoenas  served 
upon  him  as  aforesaid.  Plaintiffs  state  that  the  said  Bryce  remained 
at  the  residence  of  the  said  Swisher  until  after  dark  on  yesterday, 
waiting  for  him  to  return  home,  but  said  Swisher  did  not  come. 
Plaintiff  would  further  state,  that  he  left  word  with  the  said  Swisher's 
wife  to  tell  the  said  Swisher  to  be  certain  to  be  in  attendance  upon 
the  court  by  9  o'clock  a.  m.  of  today.  Plaintiffs  would  further 
represent  that  the  said  Swisher  resides  about  ten  miles  from  this 
place.  Plaintiffs  deny  that  they  ever  agreed  to  try  this  case  absolutely 
on  today;  but  the  postponement  was  merely  for  the  purpose  of  hav- 
ing their  attorney  present  to  attend  to  the  case  when  called.  [(^Jurat 
as  in  Form  No.  6295. )Y 

W.M.  Bryce. 

IV.  CERTIFICATE  OF  PHYSICIAN.^ 

Form  No.  6305. 

(Precedent  in  State  v.  Maddox,  117  Mo.  680.)* 

Ely,  Mo.,  September  5,  iS92. 
This  is  to  certify  that  I  waited  upon  the  wife  oi  Morgan  Maddox 
the  night  of  August  25,  i8P^,  and  that  abortion  took  place  about /a'<f/zr 
o'clock  of  said  night.     She  had  a  severe  chill  and  temperature  rose 

1.  The  words  and  figures  enclosed  in  the  opinion  the  court  said:  "  It 
by  []  are  not  found  in  the  reported  was  admitted  and  conceded  by  the 
case,  but  have  been  added  to  complete  prosecuting  attorney  that  the  certificate 
the  form.  was  in  the  genuine  and  proper  hand- 

2.  The  court  is  not  bound  to  grant  a  writing  of  Dr.  Mattox,  and  that  at  the 
continuance  on  the  certificate  of  a  phy-  date  it  was  given  Dr.  Mattox  was  a 
sician.  Waarich  v.  Winter,  33  111.  regularly  practicing  physician  in  good 
App.  36.  And  in  Randall  ».  United  L.,  standing  near  Ely,  Marion  county, 
etc.,  Ins.  Assoc,  (Super.  Ct.)  14  N.  Y.  Missouri." 

Supp.    631,    the  certificate    was    disre-         In  commenting  upon  the  certificate 

garded  because  it  was  not  verified.  and    affidavit  the  court   said:      "  Her 

Hot  a  Substitnte  for  AfBldavit.  —  An  un-  [the  wife's]  condition  was  fully  corrobo- 

verified  certificate  of  a  physician  cannot  rated    by    her    physician's    certificate, 

be  accepted  in  lieu  of  an  affidavit  which  The  only  possible  suggestion  that  can 

is  required  in  ordinary  cases.     Harlow  be  made  against  the  sufficiency  of  this 

V.  Warren,  38    Kan.   4S0,   where   it   is  affidavit  is  that  the  physician's  certifi- 

suggested  that  the  affidavit  of  the  phy-  cate  does  not  say  she  was  too  ill  to  have 

sician  would  have  been  sufficient.  her  deposition  taken,  but  the  affidavit 

8.  This  certificate  was  presented  in  does,  and  the  physician's  certificate  dis- 
connection with  the  affidavit  for  a  con-  closes  a  condition  in  which  the  court  as 
tinuance  by  the  defendant  in  a  criminal  well  as  an  expert  could  see  the  defend- 
case  on  account  of  the  absence  of  a  ant's  wife  ordinarily  would  be  in  no 
material  witness,  the  affidavit  alleging  condition  to  stand  the  excitement  of  the 
that  she  was  too  sick  to  attend  court,  examination  and  cross-examination  in 
The  affidavit  is  in  Form  No.  6291.  a  trial  involving  the  liberty  of  her  hus- 

Preceding  the  certificate  as  set  forth  band." 

418  Volume  5. 


6306.  CONTINUANCES  AND  6308. 

to  one  hundred  and  five  degrees,  pulse  one  hundred  and  fifty,  with 
delirium,  showing  all  the  symptoms  of  septicaemia,  resulting  from 
the  absorption  of  putrid  foetus  and  its  membranes,  and  I  should  not 
think  it  would  be  safe  for  her,  under  the  most  favorable  circum- 
stances, to  leave  her  room  under  six  weeks  from  the  time  the  abor- 
tion took  place. 

S.  Mattox,  M.  D. 

V.  Stipulation  for  Continuance. 
1.  In  General. 

Form  No.  6306. 

(Precedent  in  Alton  v.  &Jlmanton,  2  N.  H,  520.)' 

Town  of  Alton       ) 

V.  V  February  Term,  \^Z2. 

Town  of  Gilmanton.  ) 

The  parties  agree  that  this  action  shall  stand  continued.  The 
plaintiff  agrees  to  abandon  the  first  and  last  articles  in  the  account, 
and  the  defendant  agrees  to  waive  all  objections  to  the  notice^  and 
service  of  the  notice  and  form  of  the  plaintiff's  writ. 

Neh.  Eastman,  for  Plaintiff. 
Stephen  Moody,  for  Defendant. 

2.  In  Justice's  Court. 

Form  No.  6307. 
(Precedent  in  DeMott  v.  Taylor,  51  N.  J.  L.  308.)' 

To  Justice  Schor. 

It  is  hereby  stipulated  between  the  said  plaintiff  and  the  said 
defendant  that  this  case  stands  adjourned  to  Friday,  December  16th, 
iS87,  at  2  P.  M.,  at  Justice  Schor  s  office,  in  Leonia,  and  without  preju- 
dice to  either  party. 

William  Taylor,  plaintiff. 
Henry  J.  DeMott,  defendant. 
Dated  December ,  \Z81. 

VI.  Counter  affidavits.^ 

1.  The  action  was  assnmpeit  for  relief  action  be  adjourned  from  April  tenth 
furnished  to  a  pauper,  and  the  notice  to  April  fourteenth,  i8qi,  at  two  o'clock 
referred  to  in  the  stipulation  was  the  p.  m.,  with  consent  to  both  parties  to 
statutory  notice  of  supplies  furnished,  file  their  pleadings  on  said  last  men- 
which  is  a  condition  precedent  to  lia-  tioned  day. 

bility.     The  stipulation  was  executed  Dated  April  yth,i8Sf. 

in   court,    and    it   was    held    that   the  T.  F.  O'Hair,  Plff's  Atty. 

waiver  contained  therein  was   binding.  J.  Bohmbach,  Deft's  Atty." 

2.  Another  Precedent.  —  In  Johnson  v.  8.  Admissibility  of  Counter  Affidavits  — 
Hagberg,  48  Minn.  221,  will  be  found  In  the  Absence  of  Statutes  or  Joules  of 
the  following  stipulation  for  a  continu-  Court.  —  In  the  case  furnishing  this 
ance  in  a  justice's  court:  precedent    the    court    said:       "In    the 

{Title.)  "  The  parties  to  this  action  case  of  Hyde  v.  State,  16  Tex.  453,  Mr. 
hereby   stipulate   and   agree   that  this     Justice  Wheeler   elaborately  reviewed 

414  Volume  5. 


6308. 


AD  JO  URN  MEN  TS. 


6308. 


Form  No.  6308. 


(Precedent  in  Bryce  v.  Jones,  38  Tex.  205.)' 


the  authorities  and  laid  down  the  rule 
that  counter  affidavits  are  admissible 
to  disprove  due  diligence.  We  have 
long  fell  the  necessity  of  the  applica- 
tion of  this  rule  in  second  and  subse- 
quervt  applications  under  our  statute. 
If  the  affidavit  for  continuance  re- 
mains uncontradicted,  it  forces  the 
court  to  a  continuance  of  the  cause 
where  the  suspicion  of  bad  faith  and 
want  of  diligence  is  irresistible." 

To  the  extent  indicated  in  the  fore- 
going quotation  it  is  believed  that  the 
weight  of  authority  favors  the  admis- 
sion of  counter  affidavits.  State  v. 
Murdy,  81  Iowa  603;  State  v.  McCoy, 
III  Mo.  517. 

Other  cases  go  further  and  hold  that 
"although  it  is  not  in  general  admissi- 
ble to  file  counter  affidavits  controvert- 
ing the  truth  of  the  application  for  a 
continuance,  *  *  *  yet  where  the  coun- 
ter affidavit  is  made  by  the  witness 
mentioned  in  the  application,  then  the 
counter  affidavit  may  be  received  to 
controvert  the  truth  of  allegations  made 
in  the  application  respecting  the  affiant 
witness."  State  v.  Hilsabeck,  35  Tex. 
Crim.  Rep.  525.  See  also  Wilkins  v. 
State,  (Tex.  Crim.  App.  1896)  132  Mo. 
348. 

In  Slate  v.  Good,  132  Mo.  114,  it  was 
said  that  counter  affidavits  "  are  not 
permitted  to  controvert  the  truth  of  the 
allegations  made  by  the  applicant  for 
a  continuance  as  to  what  the  testimony 
of  the  witnesses  would  be,  and  this 
seems  to  be  the  general  rule  where 
counter  affidavits  are  allowed,  except 
where  fraud  or  imposition  is  suggested, 
or  there  is  good  reason  to  believe  the 
object  is  delay."  See  also  Cunneen  v. 
State,  95  Ga.  330;  Wells  v.  Com.,  (Ky. 
1890)  13  S.  W.  Rep.  915;  Bowling  v. 
Whatley,  53  Ga.  24. 

In  McClurg  v.  Inglehart,  (Ky.  1895) 
33  S.  W.  Rep.  80,  the  court  said:  "  The 
rule  of  practice  seems  to  be  that,  where 
the  affidavit  is  in  reference  to  absent 
witnesses,  setting  forth  fully  and  with 
certainty  what  he  expects  to  prove  by 
them,  giving  their  names  and  showing 
diligence,  that  then  this  cannot  be  con- 
troverted by  counter  affidavits;  and  this 
rule  is  stated  because,  it  is  said,  the 
code  has  specifically  pointed  out  the 
particular  manner  by  which  one  desir- 


ing a  trial  can  obtain  the  same  against 
such  affidavit,  and  that  is  by  admitting 
that  the  witnesses,- if  present,  would 
testify  as  stated  by  the  applicant;  and 
that,  the  code  having  specifically  done 
this,  it  means  that  the  matter  as  to  the 
ground  of  continuance  is  no  longer  in 
the  discretion  of  the  court." 

Some  cases  seem  to  discountenance 
the  use  of  counter  affidavits  altogether. 
Petit  V.  State,  135  Ind.  393;  Eslinger  v. 
East,  100  Ind.  434;  State  v.  Simien,  30 
La.  Ann.  296;  State  v.  Abshire,  47  La. 
Ann.  542;  Price  v.  People,  131  111.  231. 
But,  as  was  said  in  Waarich  v.  Winter, 
33  111.  App.  36,  after  holding  that  the 
trial  court  erred  in  allowing  counter 
affidavits  to  be  read:  "  Such  error  will 
not  constitute  ground  for  reversal 
where  the  affidavits  for  continuance  are 
not  sufficient.  In  such  case  the  counter 
affidavits  will  not  be  regarded  as 
inducing  the  refusal  of  the  continu- 
ance." 

Where  Continuance  is  Sought  for 
Absence  of  Party.  —  See  supra,  note  on 

P-  329- 

The  allowance  of  counter  affidavits  or  a 
counter  showing  to  an  application  for 
continuance  is  regulated  by  statute  or 
rule  of  court  in  some  jurisdictions. 

Arkansas. — Sand.   &    H.  Dig.  (1894), 

§  5797- 

Georgia.  —  2  Code  (1895),  ^  966. 

Iowa.  —  Anno.  Code  (1897),  §  3668. 

Maine. —  Rules  Supreme  Jud.  Ct., 
No.  15. 

Massachusetts.  —  Rules  of  Pr.  at  Com. 
L.,  No.  II  (104  Mass.  558). 

Montana.  —  Rules  Dist.  Ct.  (4th  Jud. 
Dist.),  No.  12. 

New  Mexico.  —  Comp.  Laws  (1884), 
§  2052. 

North  Carolina.  —  Code  Civ.  Proc., 
§402;  as  amended  Acis  (1885),  c.  394. 

Ohio.  —  Rules  Ct.  Com.  PI.,  No.  19a, 
adopted  Oct.  i,  1891. 

South  Dakota.  —  Rules  Cir.  Ct.  (6lh 
Jud.  Cir.),  No.  30. 

Texas.  —  Code  Crim.  Proc.  (1895), 
arts.  601,  602. 

1.  In  this  case  there  was  filed  the 
original  affidavit  set  forth  in  the  next 
note  but  one,  this  counter  affidavit  (the 
precedent  set  out  in  the  text.  Form  No. 
6308),  and  the  additional  or  amended 
affidavit  set  out  in  Form  No.  6304. 


415 


Volume  5. 


6309. 


CONTINUANCES  AND 


6309. 


[  (  Title  of  court  and  cause ^  and  venue  as  in  Form  No.  6295.  )]^ 
And  now  comes  the  defendant  Moore,  who  resists  the  application  for 
continuance  made  by  plaintiffs^  on  account  of  the  absence  of  the 
witness,  Swisher,  and  says  that  this  cause  was  regularly  reached  in  its 
call  upon  the  docket  yesterday  at  i^  o'clock;  this  witness  was  then 
absent  and  in  contempt  of  the  court,  and  this  within  the  knowledge 
of  the  plaintiff,  ^rK<?,  and  his  dAXomty,  J.D.  Sayers;  that  said  case 
was  postponed  upon  request  by  plaintiff  tillP  o'clock  this  morning; 
that  it  was  the  duty  of  plaintiff  to  take  other  and  different  modes 
of  compelling  the  attendance  of  said  witness,  instead  of  relying  upon 
said  subpoena  or  order  to  continue  said  cause.  That  said  witness  re- 
sides about  ten  miles  from  the  court-house,  so  this  defendant  is 
informed  and  believes.   [(^Signature  and  Jurat  as  in  Form  No.  6295.)]^ 

VII.  Order  of  Continuance.^ 


ORDER  FOR  CONTINUANCF  IN  CRIMINAL  CASE,  AND  REMAND  OF  PRISONER. 

Form  No.  6309.  ' 

(Precedent  in  McKay  v.  State,  12  Mo.  493.) 

State  of  Missouri^ 

n     s  ]if  f^  ,>  Indictment  ior  Grand  Larceny. 

Hugh  Gillespie.    J 
And  now  upon  the  motion  of  the  attorney  for  the   State,  this 


1.  The  matter  enclosed  by  [  ]  is  not 
found  in  the  reported  case,  but  added 
to  complete  the  form. 

2.  The  application  alluded  to  was  made 
upon  an  atBdavit  which,  omitting  the 
formal  parts,  was  as  follows:  "  Now 
come  plaintiffs  and  say,  that  they  can- 
not go  safely  to  trial  of  this  cause  for 
the  want  of  the  testimony  of  A.  P. 
Swisher,  a  witness  for  plaintiffs,  who 
resides  in  the  said  county  of  Bastrop 
and  State  of  Texas.  Plaintiffs  would 
further  represent  that  the  testimony  of 
said  Swisher  is  material  to  the  case  to 
aid  plaintiffs  in  the  maintenance  of 
their  suit.  Plaintiffs  would  further 
represent  that  they  have  used  due  dili- 
gence to  procure  the  attendance  and 
testimony  of  the  said  Swisher,  in  this, 
that  they  caused  subpoenas  to  be  issued 
for  the  said  Swisher,  and  served  upon 
him  at  the  following  dates,  to  wit: 
April 2j,  i%6q\  December  i^,  i%6g;  March 
22,  187/;  said  subpoenas  being  on  file 
and  made  a  part  of  this  affidavit  and 
hereto  attached;  and  that  the  said  wit- 
ness has  been  in  attendance  at  every 
term  of  said  court  up  to  the  present 
term  of  the  same.  Plaintiffs  would  fur- 
ther state  that  the  said  Swisher  is  not 
absent  with  the  consent  or  at  the  con- 


trivance of  plaintiffs,  and  that  they  ex- 
pect to  procure  his  attendance  at  the 
next  term  of  this  court.  Plaintiffs 
would  further  state  that  they  do  not 
know  why  the  said  Sxvisher  is  not  in 
attendance;  that  this  their  first  applica- 
tion for  a  continuance  is  not  made  for 
delay;  wherefore  plaintiffs  pray  that 
this  cause  be  continued  until  the  next 
term  of  this  court." 

3.  Order  Continuing  Catise  by  Consent. 
—  In  Tucker  v.  St.  Louis,  etc.,  R.  Co.,  54 
Mo.  179,  the  order,  omitting  the  formal 
parts,  was  as  follows:  "  Now  at  this  day 
appear  the  parties  by  their  respective 
attorneys,  and  by  consent  this  cause  is 
continued  to  the  December  adjourned 
term  {4th  day.  No.  162.)" 

Order  for  Continuance  in  Civil  Case,  and 
for  Payment  of  Costs.  —  In  Connett  v. 
Hamilton,  16  Mo.  445,  the  order,  omit- 
ting the  formal  parts,  was  as  follows: 

"And  now  here  come  the  said  parties 
by  their  attorneys,  and  on  motion  of 
the  said  plaintiff  it  is  ordered  that  this 
cause  be  continued  until  the  next  term 
of  this  court  and  that  the  said  plaintiff 
pay  the  costs  of  the  present  term  of 
this  court." 

Order  Continuing  Cause  to  Perfect  Ser- 
vice.—  In  Baker  z*.  Thompson,  75    Ga. 


416 


Volume  5. 


6310. 


AD  JO  URNMENTS. 


6310. 


cause  is  continued  to  the  next  term  of  this  court,  and  upon  the 
motion  of  the  attorney  for  said  defendants,  it  is  ordered  by  the 
court,  that  said  defendants,  Burt  McKay  and  Hugh  Gillespie,  be 
remanded  to  the  common  jail  ol  St.  Louis  County,  and  that  the  Sheriff 
of  Jefferson  County  convey  the  bodies  of  the  said  defendants  to  the 
said  county  of  St.  Louis,  and  there  deliver  them  to  the  Jceeper  of  said 
common  jail  of  said  county  of  St.  Louis. 


VIII.  Order  Setting  Aside  order  for  Continuance.^ 

Form  No.  6310. 

(Precedent  in  McKay  v.  State,  12  Mo.  494.)* 
State 

V. 

McKay  and  Gillespie. 

And  now  it  is  here  considered  by  the  court  that  the  order  of  con- 


165,  the  order,  omitting  the  formal 
parts,  was  as  follows:  "  There  having 
been  no  service  of  defendant  in  this  case, 
or  waiver  of  service,  upon  motion  of 
plaintiff's  counsel,  it  is  ordered  that  said 
case  be  continued  until  the  next  term  of 
this  court." 

Order  for  Contintiance  After  Sabmission 
to  Jtiry.  —  In  Jackson  v.  State,  51  Ga. 
403,  the  order,  omitting  the  formal 
parts,  was  as  follows: 

"  It  appearing  to  the  court  that/ames 
Bass,  who  was  qualified  as  a  juror  in 
this  case,  served  upon  the  grand  jury 
which  found  the  true  bill,  it  is,  upon 
motion  of  the  solicitor-general,  ordered 
by  the  court  that  the  case  be  withheld 
from  consideration  by  the  jury,  and 
continued  for  trial." 

Order  for  Continuance  in  Criminal  Case. 
—  In  Jumpertz  v.  People,  21  111.  375, 
the  order,  omitting  the  formal  parts, 
was  as  follows: 

"  And  now  on  this  day  came  the  said 
People  by  Carlos  Haven,  their  artorney, 
and  on  his  motion  it  is  ordered  that 
this  cause  be  continued  to  next  term." 

In  Kibler  v.  Com.,  (Va.  1897)  26  S.  E. 
Rep.  859,  the  order,  omitting  the  formal 
parts,  was  as  follows:  "  This  cause  is 
continued  until  the  ^th  day  of  May, 
i%q6  (it  being  the  eighth  day  of  next 
term  of  the  court  for  the  common- 
wealth), the  attorney  for  the  common- 
wealth being  physically  unable  to 
proceed  with  the  case,  and  six  witnesses 
who  have  been  summoned  for  the 
prosecution  failing  to  appear,  and  the 
importance  of  five  of  them  being 
known  to  the  commonwealth's  attor- 
ney, as  stated  by  him  in  open  court." 

Order  Continuing  Criminal  Case  on  Stipti- 


lation. —  In  Kibler  v.  Com.,(Va.  1897) 
26  S.  E.  Rep.  859,  the  order,  omitting 
the  formal  parts,  was  as  follows:  "  By 
agreement  of  counsel  this  case  is  con- 
tinued to  the  March  term,  1896,  of  this 
court,  the  commonwealth's  attorney  of 
Page  county  being  absent  and  engaged 
in  public  service  in  the  General  As- 
sembly of  Virginia,  now  in  session." 

1.  A^davit  resisting  motion  to  set  aside 
continuance  as  given  in  McKay  v. 
State,  12  .Njo.  494,  omitting  the  formal 
parts,  was  as  follows: 

"This  day  personally  appeared  in 
open  court,  A.  P.  Field,  who  being  duly 
sworn,  deposes  and  says  that  he  is  the 
only  counsel  employed  to  defend  the 
above  persons,  that  he  is  in  possession 
of  the  facts  of  their  case;  that  their 
cases  have  been  continued  until  the 
next  term;  that  they  were  set  for  trial 
on  Tuesday;  he  further  states  that  he  is 
employed  in  several  important  criminal 
cases  in  the  St.  Louis  Criminal  Court, 
some  of  them  where  he  is  the  only 
counsel,  several  of  them  set  for  trial  on 
tomorrow,  which  compels  him  to  leave 
this  morning  for  St.  Louis\\i^  further 
states  that  for  the  last  two  days  he  has 
been  laboring  under  severe  indisposi- 
tion, so  much  so  that  he  is  entirely 
unable  by  reason  of  said  indisposition 
to  attend  to  the  defense  of  said  McKay 
and  Gillespie,  and  that  for  the  reasons 
aforesaid,  as  well  as  others,  he  objects 
to  the  setting  aside  the  continuance. 
A.  P.  Field. 

Sworn  to  and  subscribed  in  open 
court,  November  joth,  i8^S. 

T.  H.  Alford,  Clerk." 

2.  On  the  second  day  of  the  regular 
term  this  case  had  been  continued  until 


5  E.  of  F.  P.  — 27. 


417 


Volume 


6311. 


CONTINUANCES  AND 


6311. 


tinuance  [and  the  order  of  transmission  of  said  defendants  to  the 
common  jail  of  St.  Louis  county]  ^  made  herein,  be  set  aside,^  and 
said  cause  is  set  for  trial  on  the  18th  day  of  December  next,  and  it  is 
ordered  that  said  defendants  and  their  counsel  be  notified  thereof.^ 

IX.  ADJOURNMENTS. 
1.  In  General. 


ORDER  OF  ADJOURNMENT  OF  TERM  AND   CONTINUANCE    OF    UNFINISHED 

BUSINESS. 

Form  No.  6  3  1 1 . 


the  next  regular  term,  upon  the  appli- 
cation of  the  state.  Three  days  there- 
after, upon  application  of  the  state, 
resisted  by  counsel  for  the  prisoner,  the 
order  of  continuance  was  set  aside  and 
the  cause  set  for  the  i8th  of  December 
as  stated  in  the  text,  that  date  being 
the  commencement  of  an  adjourned 
term.  For  this  "unsound  exercise  of 
judicial  discretion,"  a  judgment  of  con- 
viction was  reversed  and  a  new  trial 
granted. 

Notice  of  the  Motion.  —  In  Marsh  v. 
Morse,  18  Mo.  477,  as  also  in  the  case 
cited  in  the  text,  the  party  moving  to 
set  aside  the  order  of  continuance  gave 
the  opposite  party  notice  of  the  motion. 
And  in  Newell  v.  Clodfelter,  3  111.  App. 
259,  reasonable  notice  to  the  opposite 
party  or  his  solicitor  of  an  intended  ap- 
plication to  set  aside  an  order  of  con- 
tinuance was  held  to  be  indispensable. 
To  the  same  point  see  Papin  v.  Buck- 
ingham, 33  Mo.  456. 

1.  If  the  order  be  made  in  a  civil  case, 
omit  the  words  in  brackets. 

2.  Power  to  Set  Aside  Order. —  There 
is  no  doubt  that  during  the  term  of 
court  at  which  an  application  for  con- 
tinuance is  granted  the  court  may  for 
sufficient  cause  vacate  or  set  aside  the 
order  at  the  instance  of  either  party. 
Marsh  v.  Morse,  18  Mo.  477;  Lament  v. 
Williams,  43  Kan.  558;  State  v.  Plow- 
man, 28  Kan.  569;  Chase  v.  People,  2 
Colo.  513;  Hunt  V.  Listenberger,  (Ind. 
1895)  42  N.  E.  Rep.  240.  Even  where 
the  continuance  was  granted  by  consent 
of  the  parties.  Gray  v.  Ulrich,  8  Kan. 
112.  And  unless  the  record  on  appeal 
shows  the  grounds  upon  which  the  ac- 
tion of  the  court  was  based,  it  will  be 
presumed  that  they  were  sufficient. 
Amory  v.  Reilly,  9  Ind.  490. 

As  an  Exercise  of  Discretion.  —  Al- 
though the  action  of  the  court  in  the 


matter  is  largely  discretionary.  Grid- 
ley  V.  Capen,  72  111.  12,  and  will  not 
be  disturbed  by  the  appellate  court 
where  the  record  does  not  show  that 
the  party  complaining  was  in  any  way 
injured.  Earner  v.  Bayless,  134  Ind. 
605;  Callahan  v.  State,  30  Tex,  488,  it 
is  "ordinarily  *  *  *  improper  after  a 
case  has  been  continued  to  set  aside  the 
continuance  and  dispose  of  the  case  in 
the  absence  of  one  party  and  on  the 
application  and  in  favor  of  the  other." 
Gray  v.  Ulrich,  8  Kan.  112,  where, 
however,  it  was  said  that  the  appellate 
court  would  probably  be  constrained  to 
let  a  judgment  rendered  under  such 
circumstances  stand  until  at  least  ap- 
plication had  been  made  to  the  court  in 
which  it  was  rendered  to  vacate  it. 
Mattoon  v.  Hinkley,  33  111.  209;  McKee 
V.  Ludwig,  30  111.  28;  Taff  I/.  Westerman, 
39  Mo.  413. 

Objection  and  Exception.  —  A  party 
claiming  to  be  prejudiced  by  an  order 
vacating  a  continuance  should  object 
to  the  same  and  take  an  exception  to 
the  action  of  the  court,  else  the  objec- 
tion will  be  considered  as  waived. 
Gridley  v.  Capen,  72  111.  11.  See  also 
Callahan  v.  State,  30  Tex.  488. 

3.  Notice  of  Order  Vacating  Oontinn- 
ance.  —  When  a  party  procures  a  con- 
tinuance, and  at  his  instance  the  court 
enters  an  order  vacating  the  same,  the 
opposite  party  "should  be  served  with 
an  authentic  copy  of  the  order.  It 
would  be  dangerous  to  trust  to  rumor, 
or  any  other  source  of  information  than 
a  service  of  a  copy  of  the  order,  to  affect 
a  party  with  notice  that  the  continuance 
has  been  set  aside.  He  then  could  ap- 
pear and  show  cause  why  a  trial  should 
not  be  held  at  that  time."  Marsh  v. 
Morse,  18  Mo.  478,  granting  a  new  trial 
because  the  party  complaining  had  no 
formal  notice. 


418 


Volume  5. 


6312.  AD  JO  URNMENTS.  63 1 3. 

(Precedent  in  Slate  v.  Ross.  iiS  Mo.  41.)' 

Ordered  by  the  court  that  all  business*  pending  and  undisposed 
of  be,  and  the  same  is  hereby,  continued  until  the  next  regular  term 
of  this  court,  and  the  court  adjourned  until  court  in  course. 

George  Houck^ 
Special  Judge  for  Manch  Term,  \WS. 

2.  Directing  Clerk  to  A(]journ. 

a.  Generally. 

Form  No.  6312. 

(Precedent  in  Smith  v.  State,  4  Neb.  284.)* 

Fremont,  Sept.  8,  1^75, 
At  the  request  of  the  attorneys  of  Buffalo  county,  I  hereby  adjourn 
the  district  court  of  Buffalo  county  until    the  2d  Monday  of  next 
December. 

Samuel  Mctxwell^  Judge. 

b.  By  Hail. 

Form  No.  6313.  j 

(Precedent  in  State  v.  Holmes,  56  Iowa  589.)* 

Owing  to  the  inability  of  the  undersigned  to  reach  the  county- 
seat  in  time  to  open  court  today,  it  is  therefore  hereby  ordered 
that  the  District  Court  for  Winneshiek  county  be  and  the  same  is  hereby 
adjourned  until  Thursday^  the  10th  day  of  March^  1S8I,  at  9  o'clock 

A.  M. 

D&ted  March  9,  1S8I. 

E.  E.  Cooley,  Judge  District  Court, 

10th  Judicial  District,  Iowa. 

1.  Order  Continmng  Unfinithed  Bnsi-  better  form  if  it  had  specially  desig- 
nan. —  In  Lamb  v.  State,  73  Ga.  5SS,  is  nated  the  September  term  as  the  one 
found  the  following  order:  "There  which  the  order  was  intended  to  affect, 
being  a  number  of  cases  on  the  com-  The  statute  relating  to  adjournments 
mon  law,  equity,  motion,  certiorari,  in  vacation  provided  that  "  If  the  judge 
claim  and  criminal  dockets  of  Tayhr  is  sick,  or  for  any  other  sufficient  cause 
Superior  Court  that  have  not  been  is  unable  to  attend  court,  at  the  regu- 
reached  and  disposed  of  during  the  larly  appointed  time,  he  may  by  a 
present  term  for  want  of  time,  it  is  written  order  direct  an  adjournment  to 
ordered  that  all  cases  on  any  of  the  a  particular  day  therein  specified,  and 
dockets  of  said  court  that  have  not  been  the  clerk  shall  on  the  first  day  of  the 
reached  and  disposed  of  be  continued  term,  or  as  soon  thereafter  as  he  re- 
until  the  next  term  of  this  court."  ceives  the  order,  adjourn  the  court  as 

2.  This  order  was  sent  to  the  clerk  therein  directed."  It  was  furthermore 
five  days  before  the  time  appointed  by  held  that  the  order  need  not  disclose 
law  for  the  court  to  be  held.  It  was  the  cause  for  adjournment,  and  this 
held  that  the  adjournment  by  the  clerk  view  is  supported  by  State  v.  Pate,  40 
pursuant  to  the  order  was  effectual,  al-  La.  Ann.  74S,  a  case  exactly  in  point, 
though  the  order  would  have  been   in         3.  See  infra,  note  i,  p.  420. 

419  Volume  5. 


6814.    CONTINUANCES  AND  ADJOURNMENTS.    6315. 

c.  By  Telegram. 

Form  No.  6314. 

(Precedent  in  State  v.  Holmes,  56  Iowa  589.)' 

Calmar,  Iowa,  March  9th,  188 1. 
To  M.  M.  Harden,  Clerk  —  I  have  made  and  sent  you  a  written 
order    adjourning    court    until    tomorrow    morning,    nine    o'clock. 
Adjourn  it  accordingly. 

E.  E.  Cooley,  Judge. 

3.  Justice's  Docket  Entry. 

Form  No.  6315. 

(Precedent  in  Anderson  v.  Southern  Minnesota  R.  Co.,  21  Minn.  30.)* 

By  consent  of  the  parties,  the  case  is  adjourned  until  Monday, 
September  23,  iS73,  at  one  o'clock  in  the  afternoon. 

1.  This  telegram  was  received  by  the  the  court  shall  stand  adjourned  till  the 
clerk  at  half  past  three  o'clock  p.  m.  next  regular  term.  If  the  judge  is 
on  March  9th,  which  was  the  third  day  sick,  or  for  any  other  suflScient  cause  is 
of  the  term,  and  a  few  minutes  before  unable  to  attend  court  at  the  regularly 
five  o'clock  p.  m.  of  the  same  day  he  appointed  time,  he  may,  by  a  written 
adjourned  the  court  until  March  loth  at  order,  direct  an  adjournment  to  a  par- 
nine  o'clock  a.  m.  At  a  quarter  past  ticular  day  therein  specified,  and  the 
six  o'clock  p.  m.  of  March  9th  the  clerk  shall,  on  the  first  day  of  the  term, 
clerk  received  by  mail  the  order  set  or  as  soon  thereafter  as  he  receives  the 
forth  in  Form  No.  6313,  supra.  It  was  order,  adjourn  the  court  as  therein 
held    that  the   adjournment   upon    re-  directed." 

ceipt   of    the    telegram   was   a   lawful        2.  This   was   held   a   sufficient   com- 

adjournment   on    a    "written    order"  pliance  with  the  statute  requiring  an 

under     the    following    statutory    pro-  entry  on  the  docket  of  "  every  adjourn- 

vision:  "If  the  judge  does  not  appear  ment,  stating  to  what  time  and  place." 
by  five  o'clock  of  the  third  day  *  *  * 

420  Volume  5. 


CONTRACT  LABOR   LAW. 

By  Charles  E.  Harris. 

I.  ACTION  FOR  PENALTY,  421. 
II.  CRIMINAL  PROSECUTION,  424. 

CROSS-REFERENCES. 

For  Forms  relating  to  Exclusion  of  Chinese  Laborers^  see  the  title 
EXCLUSION  OF  CHINESE  LABORERS. 

For  matters  of  Substantive  Law,  see  the  title  CONTRACT  LABOR 
LA  IV,  7  American  and  English  Encyclopedia  of  Law 
(2d  ed.),  p.  83. 

I.  ACTION  FOR  PENALTY.! 

Form  No.  6316.' 

The  Circuit  Court  of  the  United  States  of  America  for  the  District 
of  Massachusetts. 
The  United  States  of  America  )  ^^  ^^^      j^^   ^^^ 

/-i     7      z?    c         J  \  Plaintiff's  Declaration. 

Charles  E.  Symonds.  ) 

First  count:  And  the  plaintiff  says  that  during  the  month  oi  July, 

in  the  year  i8P<?,  in  a  foreign  country,  to  wit,  in  the  city  of  Sheffield, 

in  England,  the  defendant  did  make  and  enter  into  a  contract^  with 

one  William  Henry  Boivnes,  said  Bownes  being  then  and  there  an 

alien  and  a  foreigner*  and  said  contract  being  substantially  in  the 

terms  following,*  to  wit,  that  if  the  said  Bo^vnes  would  agree  to  migrate 

and  come  to  Salem,  in  the  United  States  of  America  and  common- 

1.  For  the  formal  parts  of  a  complaint  490;  U.  S.  v.  Craig,  28  Fed.  Rep.  795. 
or  petition  in  a  particular  jurisdiction  And  the  contract  or  agreement  must  be 
consult  the  title  Complaints,  vol.  4,  p.  an  enforceable  contract,  either  express 
1019.  For  the  formal  parts  of  a  decla-  or  implied.  U.  S.  v.  Edgar,  45  Fed. 
ration  consult  the  title  Declarations.  Rep.  44. 

2.  United  States.  — 23  Stat,  at  Large,  4.  Immigrant  an  Alien.  —  The  statute 
p.  332,  c.  164,  §§  I,  3;  Rev.  Stat.  (Supp.  is  directed  only  against  alien  im- 
1891),  p.  479,  c.  164,  §S  I.  3-  migrants,     and,     consequently,    alien 

See  insufficient  declarations  for  pen-  residents  when  returning  after  a  tem- 

alties   under   this   statute  in   U.   S.  v.  porary  absence  in   a   foreign   country 

Gay,  80  Fed.  Rep.  255;  Moller  v.  U.  S.,  are  not  within  its  purview.     In  re  Mai- 

57  Fed.  Rep.  491.  ola,  67  Fed.  Rep.  114;  In  re  Martorelli, 

3.  Contract  Before  Immigration. —  The  63  Fed.  Rep.  437;  In  re  Panzara,  51 
declaration   must  allege  that  previous  Fed.  Rep.  275. 

to  the  immigrant's  becoming  a  resident  6.  Terma  of  Contract.  —  In  an  action 
of  the  United  States  he  entered  into  a  under  this  statute,  a  declaration  is  in- 
contract  to  perform  labor  or  service  sufficient  which  fails  to  show,  at  least  in 
here.      Moller  v.  U.  S.,  57  Fed.   Rep.     substance,  the   terms  of  the  contract. 

421  Volume  5. 


6316.  CONTRACT  LABOR  LAW.  6316. 

wealth  of  Massachusetts^  and  to  perform  manual  work  and  labor,  to 
wit,  the  work  of  a  blacks?nith,^  in  said  Salem,  for  said  defendant,  he, 
the  said  defendant,  would  pay  the  said  Bournes  for  said  work  and 
labor  the  sum  of  twelve  dollars  per  7iieek,  and  would  also  prepay  the 
transportation  or  passage  money  of  said  Bownes  from  said  England 
to  said  United  States.  And  said  Bownes  did,  at  said  Sheffield,  at  the 
time  aforesaid,  accept  said  offer  of  said  defendant,  and  did  then  and 
there  promise  said  defendant  to  come  to  said  Salem  and  there  to 
perform  work  and  labor  for  said  defendant  in  accordance  with  the 
said  defendant's  said  offer  to  him,  said  Bownes. 

And  the  plaintiff  further  says  that  thereafter,  to  wit,  in  the  month 
of  August  in  said  year,  said  Boivnes  did,  in  pursuance  and  performance 
of  said  contract,  actually  migrate^  and  come  from  said  England  into 
said  United  States,  to  wit,  to  said  Salem,  and  did,  at  said  Salem,  per- 
form work  and  labor  for  the  defendant  in  accordance  with  the  terms 
of  said  contract. 

And  the  plaintiff  further  says  that  before,  by  and  after  the  making 
of  said  contract  as  aforesaid  the  defendant  did  knowingly  encourage 
and  solicit  the  said  Bownes  to  migrate  and  come  into  the  said  United 
States,  and  did  knowingly  encourage  and  solicit  the  importation  and 
migration  of  said  Bownes  into  said  United  States,  both  in  the  manner 
aforesaid  and  also  by  prepaying,  after  the  making  of  said  contract, 
and  knowing  said  contract  to  have  been  made,^  the  transportation  oif 
said  Bo7vnes  from  said  England  to  said  United  States.  And  the 
plaintiff  further  says  that,  at  the  time  of  the  making  of  said  con- 
tract, and  at  the  time  of  said  encouragement  and  solicitation  by  the 
said  defendant,  and  at  the  time  of  his,  said  Bownes' s,  migration  and 
coming  into  said  United  States,  he,  said  Boiunes,  was  a  foreigner, 
whose  migration  and  coming  into  said  United  States  under  contract 
as  aforesaid  it  was  unlawful  for  the  defendant  to  assist  and  encourage 
as  aforesaid,  all  of  which  the  defendant,  at  the  time  of  the  making 
of  said  contract  and  of  said  encouragement  and  solicitation,  well 
knew.  Whereby  and  by  force  of  the  statute  in  such  cases  made  and 
provided,  said  defendant  has  forfeited  to  the  plaintiff  the  sum  of  one 
thousand  dollars,  and  by  force  of  said  statute  an  action  has  accrued 
to  the  plaintiff  to  recover  of  said  defendant  the  sum  of  07ie  thousand 
dollars,  to  be  paid  into  the  treasury  of  the  United  States. 

under  which  the  laborer  came  to  this  case  within  the  terms  of  the  statute  as 

country.     U.   S.  z/.  Gay,  80  Fed.   Rep.  construed  by  the  supreme  court.     U.S. 

254.  V.  Gay,  80  Fed.  Rep.  254. 

1.  Manual  Labor  or  Service.  —  It  is  set-        2.  Averment  of  Actual  Immigration.  — 

tied  that  the  statute  must  be  considered  The  declaration  is  fatally  defective  if  it 

as  limited  to  cases   where  the  assisted  fails  to  allege  that  the  foreign  laborer 

immigrant  was  brought  into  this  coun-  did  actually  emigrate  to  this  country, 

try  under  a  contract  to  perform  "man-  U.  S.  v.  Borneman,  41  Fed.   Rep.  751; 

ual  labor  or  service."     U.  S.  v.  Laws,  U.  S.  v.  Craig,  28  Fed.  Rep.  795. 
163  U.  S.  258;  Holy  Trinity  Church  v.        3.  Defendant's  Knowledge  of  Contract. — 

U.  S.,  143   U.   S.  457,  reversing  2,^)  Fed.  The  declaration  is  fatally  defective  if  it 

Rep.    303.      And   a  declaration    is   in-  fails  to  allege  that  the  defendant,  when 

sufficient    which   does    not    state    the  he  assisted  the  foreign  laborer  to  emi- 

character  of  the  labor  or  service  which  grate,   knew   that   he  was   under  con- 

the  immigrant  was  under  contract   to  tract.    U.  S.  v.  Borneman,  41  Fed.  Rep. 

perform,  and  hence  fails  to  bring  the  751;  U.S.  v.  Craig,  28  Fed.  Rep.  795. 

422  Volume  5. 


6316.  CONTRACT  LABOR  LAW.  6318. 

Second  count:  And  the  plaintiff  says  that  during  the  month  of 
June,  in  the  year  \W3,  the  defendant  caused  to  be  printed  and  pub- 
lished in  a  foreign  country,  to  wit,  in  England,  'in  a  newspaper  called 
the  Sheffield  Telegraph,  published  in  the  city  of  Sheffield,  in  said 
England,  an  advertisement  containing  a  promise  or  offer  of  employ- 
ment substantially  in  the  terms  ^  following,  to  wit,  that  a  competent 
olacksmith  could  obtain  employment  as  a  blacksmith  ^  4n  the  city  of 
Salem,  in  the  United  States  of  America  and  commonwealth  of  Massa- 
chusetts, at  good  wages,  and  requesting  any  person  who  was  a  black- 
smith and  who  desired  to  obtain  said  opportunity  of  employment  in 
said  Salem  to  call  upon  one  Richard  Toon,  at  216  Fitzwilliam  street,  in 
said  Sheffield,  to  obtain  from  said  Toon  further  particulars  relative 
to  said  offer  of  employment  at  said  Salem. 

And  the  plaintiff  further  says  that  one  William  Henry  Bownes  saw 
said  advertisement  in  said  Sheffield  Telegraph  during  said  month  of 
June,  and  in  consequence  of  said  advertisement  did  thereafter,  to 
wit,  during  the  month  of  August  in  said  year  iS93,  migrate ^  and 
come  to  the  United  States,  to  wit,  to  said  Salem,  and  did  then  and 
there  perform  work  and  labor  for  said  defendant  in  pursuance  of 
said  defendant's  offer,  solicitation  and  inducement  contained  in  said 
advertisement. 

And  the  plaintiff  further  says  that  by  the  printing  and  publishing  of 
said  advertisement  as  aforesaid,  the  defendant  did  knowingly  encour- 
age and  solicit  the  said  Bo^vnes  to  migrate  and  come  into  said  United 
States,  there  to  perform  labor. 

And  the  plaintiff  further  says  that  the  defendant,  after  the  printing 
and  publishing  of  said  advertisement  as  aforesaid,  and  after  the  read- 
ing of  said  advertisement  by  Bo^vnes  as  aforesaid,  did  prepay  the 
transportation  of  said  Boivnes  from  said  England  to  said  United 
States,  said  Bownes  being  at  the  time  of  said  prepayment  of  his  said 
transportation  an  alien  under  contract  to  perform  work  and  labor  in 
said  United  States,  all  of  which  the  defendant  at  the  time  of  his  said 
prepaying  of  said  transportation  well  knew.* 

And  the  plaintiff  further  says  that  at  the  time  of  the  printing  and 
publication  of  the  said  advertisement  and  at  the  time  of  said  encour- 
agement and  solicitation  and  at  the  time  of  said  prepayment  of  said 
Bo^vnes's  transportation,  he,  said  Bownes,  was  an  alien  and  a  foreigner,* 
whose  migration  and  coming  into  said  United  States  under  contract 
as  aforesaid  it  was  unlawful  for  the  defendant  to  assist  and  encourage 
as  aforesaid. 

Whereby  and  by  force  of  the  statute  in  such  cases  made  and  pro- 
vided, said  defendant  has  forfeited  to  the  plaintiff  the  sum  of  one 
thousand  dollars,  and  by  force  of  said  statute  an  action  has  accrued 
to  the  plaintiff  to  recover  of  said  defendant  the  sum  of  one  thousand 
dollars,  to  be  paid  into  the  treasury  of  the  United  States. 

And  the  plaintiff  further  says  that  the  two  counts  of  said  declara- 
tion are  for  one  and  the  same  cause  of  action. 

By  its  Assistant  Attorney, 

W.  G.  Thompson. 

1.  See  supra,  note  5,  p.  421.  4.  See  supra,  note  3,  p.  422. 

2.  See  supra,  note  i,  p.  422.  6.  See  supra,  note  4,  p.  421. 


3.  See  supra,  note  2,  p.  422. 


428  Volume  5. 


6317.  CONTRACT  LABOR  LAW.  6317. 

II.  CRIMINAL  PROSECUTION.! 

Form  No.  6317,' 

In  the  District  Court  of  the  United  States  of  America  for  the  District 
of  Massachusetts. 

Of  the  October  Term  in  the  year  of 
our    Lord    one    thousand    eight 
hundred  and  ninety -seven. 
United  States  of  America,  )  0  ^^ 
District  of  Massachusetts.     [ 

The  grand  jurors  of  the  United  States  of  America,  chosen,  selected 
and  sworn  in  and  for  the  district  of  Massachusetts,  in  the  name  and  by 
the  authority  of  the  said  United  States,  upon  their  oaths  present  that 
John  Doe,  late  oi  Boston,  in  the  said  district,  on  th.t  fourth  day  of 
September,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-seven,  within  the  district  aforesaid,  was  the  master  of  the 
steamship  "  Columbia,'"  a  vessel  plying  between  the  port  of  Boston,  in 
said  district,  and  the  city  ol  Liverpool,  in  England,  and  on  sdiid  fourth 
day  of  September,  in  the  year  aforesaid,  did  knowingly,  wilfully  and 
unlawfully  land  and  permit  to  be  landed  from  said  Liverpool  at  the 
city  oi  Boston  aforesaid,  oxit  Richard  Roe,  an  alien  laborer,  mechanic 
and  artisan,  to  wit,  a  blacksmith,  he,  the  said  ^/M^r^-^^^,  previous  to 
his  embai'kation  on  the  said  steamship  "  Colutnbia,"  to  wit,  on  the 
fifteenth  day  of  August  in  the  year  aforesaid,  having  entered  into  a 
contract  and  agreement  with  one  Leonard  A.  Ford,  a  citizen  of  the  city 
of  Boston,  in  the  district  aforesaid,  whereby  it  was  agreed  that  the 
said  Richard  Roe  would  migrate  and  come  to  the  city  oi  Boston  afore- 
said, and  there  perform  manual  work  and  labor,  to  wit,  the  work  of  a 
blacksmith,  in  said  city  of  Boston  for  said  Leonard  A.  Ford,  and  that 
said  Leonard  A.  Ford  would  pay  him,  the  sdcid.  Richard  Roe,  for  such 
services,  the  sum  of  twelve  dollars  per  week,  and  would  also  prepay 
the  transportation  and  passage  money  of  the  said  Richard  Roe 
from  Liverpool  aforesaid  to  said  city  of  Boston,  he  the  said  John  Doe, 
then  and  there  knowing  of  the  existence  of  the  said  contract,  against 
the  peace  and  dignity  of  the  said  United  States,  and  contrary  to  the 
form  of  the  statute  of  the  same  in  such  case  made  and  provided. 

Daniel  Webster,  United  States  Attorney. 

1.  For  the  requisites  of  an  indict-  2.  United  States.  —  23  Stat,  at  Large, 
ment,  generally,    consult  the  title  In-    p.    332,  c.    164,  §  4;  Rev.  Stat.  (Supp, 

DlCTMENTS.  1891).  p.  479,  C,  164,  §  4. 

424  Volume  5. 


CONTRACTS. 

See  the  titles  ARBITRATION  AND  AWARD^ vo\.  2,  p.  33; 
ASSUMPSIT,vo\.  2,  p.  294;  ATTORNEYS,  vol.  2,  p.  969; 
AUCTIONEERS,  vol.  2,  p.  1067;  BASTARDY,  vol.  3,  p. 
153;  BILLS  AND  NOTES,  vol.  3,  p.  260;  BONDS  AND 
■  UNDERTAKINGS,  vol.  3,  p.  526;  BONDS  AND  UN- 
DERTAKINGS (^ACTIONS  ON),  vol.  3,  p.  528;  ^(9C>ir 
DEBT,  vol.  3,  p.  10 18 ;  BREACH  OF  PROMISE  OF  MAR- 
RIAGE, vol.  3,  p.  105 1 ;  BROKERS,  vol.  4,  p.  90;  BUILD- 
ERS AND  ARCHITECTS,  vol.  4,  P-  121 ;  CARRIERS,  vol. 
4,  p.  192;  CATTLE  AND  DOMESTIC  ANIMALS,  vol. 
4,  p.  376;  CHARTER-PARTIES,  vol.  4,  p.  759;  COMPRO- 
MISE; CONTRACTS  OF  HIRE;  CONTRIBUTION; 
CORPORA  TIONS;  CO  VENANTS;  DEB T;  DENTISTS; 
DRUGGISTS;  EXECUTORS  AND  ADMINISTRA- 
TORS; GOODS  SOLD  AND  DELIVERED;  GOOD- 
WILL; LANDLORD  AND  TENANT;  MASTER  AND 
SER  VANT;  MONE  Y HAD  AND  RECEIVED;  MONE  Y 
LENT;  MONEY  PAID;  PARTNERSHIP;  PRINCI- 
PAL AND  AGENT;  PRINCIPAL  AND  SURETY; 
SALES;  WORK  AND  LABOR;  also  the  GENERAL  IN- 
DEX to  this  work. 


CONTRACTS  OF  HIRE. 

By  W.  R.  Buckminster. 

I.  ACTIONS  Ex  CONTRACTU,  426. 
1,  By  Bailor,  426. 

a.  For  Hire,  426. 

b.  For  Failure  to  Return  Chattel,  427, 

c.  For  Misuse  of  Chattel,  428. 

8.  By  Bailee  for  Defect  in  Chattel  Let,  430. 

II.  ACTIONS  EX  DEUCTO,  431. 

1.   By  Bailor  for  Improper  Use  of  Chattel,  431. 

8.  By  Bailee  for  Damages  Due  to  Defect  in  Chattel  Let^  43a. 

CROSS-REFERENCE. 

For  matters  of  Substantive  Law,  see  the  title  CONTRACTS  OF  HIRE 
(LA  W  OF  BAILMENTS),  7  American  and  English  En- 
cyclopaedia OF  Law  (2d  ed.),  p.  299. 

425  Volume  5. 


6318.  CONTRACTS  OF  HIRE.  '    6319. 

I.  ACTIONS  EX  CONTRACTU.! 

1.  By  Bailor. 

a.  For  Hire. 


In  the  Common  Pleas. 


Form  No.  6318, 

(2  Chit.  PI.  55.) 


Saturday  next  after  the  Morrow  of  All  Souls 
in  Michaelmas  Term,  1  Wm.  IV. 
Middlesex,  to  wit.  Richard  Roe  was  attached  to  answer  John  Doe 
of  a  plea  of  trespass  on  the  case  upon  promises,  and  thereupon  the 
S2dd  John  Doe,  hy  Jeremiah  Mason,  his  attorney,  complains.  For 
that  whereas  the  said  Richard  Roe  heretofore,  to  wit,  on  th.t  first  day 
oi  January,  in  the  year  of  our  Lord  i?>30,  in  the  county  of  Middlesex 
aforesaid,*  was  indebted  to  the  said  John  Doe  in  the  sum  of  J^20  for 
the  use  and  hire  of  divers  horses,  mares,  and  geldings,  bridles, 
saddles,  and  harness,  and  of  divers  chaises  and  other  carriages,  by 
the  said  John  Doe  before  that  time  let  to  hire  and  delivered  to  the 
said  Richard  Roe,  and  at  his  special  instance  and  request,  and  by 
the  said  Richard  Roe,  under  and  by  virtue  of  that  letting  to  hire 
before  then,  had  and  used.  And  being  so  indebted,  he,  the  said 
Richard  Roe,  in  consideration  thereof,  afterwards,  to  wit,  on  the  day 
and  year  last  aforesaid,  in  the  county  of  Middlesex  aforesaid,  under- 
took, and  then  and  there  faithfully  promised  the  said  John  Doe  to 
pay  him  the  said  last  mentioned  sum  of  money,  when  he,  the  said 
Richard  Roe,  should  be  thereunto  afterwards  requested.  Neverthe- 
less, the  said  Richard  Roe,  not  regarding  his  said  promise  and  under- 
taking, but  contriving  and  fraudulently  intending  craftily  and  subtly 
to  deceive  and  defraud  the  said  John  Doe  in  this  behalf,  hath  not  as 
yet  paid  the  said  sum  of  J^20,  or  any  part  thereof,  to  the  said  John  Doe, 
although  often  requested  so  to  do,  but  the  said  Richard  Roe  to  pay 
him  the  same  hath  hitherto  wholly  neglected  and  refused,  and  still 
doth  neglect  and  refuse,  to  the  damage  of  the  said  John  Doe  of  j[^5, 
and,  therefore  he  brings  his  suit,  etc. 

r  John  Den 
Pledges  to  Prosecute  \        and 

(  Richard  Fen. 

Form  No.  6319. 

(Md.  Pub.  Gen.  Laws  (1888),  art.  75,  §  23.)" 
John  Doe     ) 
against       >-  In  the  Circuit  Court  of  Baltimore  City. 
Richard  Roe.  ) 

John  Doe,  by  Jeremiah  Mason,  his  attorney,  sues  Richard  Roe  for  * 
the  hire  of  certain  household  furniture,  linen  and  other  necessaries 

1.  For  the  formal  parts  of  a  declara-     parts  of  complaints  or  petitions  consult 
tion  in  a  particular  jurisdiction  consult     the  title  Complaints,  vol.  4,  p.  1019. 
the  title  Declarations.    For  the  formal        2.  The  same  form  is  set  out  in  Fla. 

Rev.  Stat.  (1892),  §  1058. 
426  Volume  5. 


6820.  CONTRACTS  OF  HIRE.  6322. 

by  the  plaintiff  let  to  hire  to  the  defendant,  and  the  plaintiff  claims 
therefor  the  sum  of  two  hundred  dollars. 

Jeremiah  Masotij  Plaintiff's  Attorney. 

Form  No.  6320. 

(Mass.  Pub,  Stat.  (1892),  c.  167,  §  94.) 

■^  /  Middlesex  Sup.  Ct. 

R' h     dR      \  Plaintiff's  Declaration. 

And  the  plaintiff  says  the  defendant  owes  him  one  hundred  doWsLTS 
for  the  use  of  a  certain  horse  and  carriage  hired  of  the  plaintiff  by 
the  defendant. 

Jeremiah  Mason^  Attorney  for  Plaintiff. 

Form  No.  6321. 
John  Doe,  plaintiff,       ]  j^  ^^^  j^.^^^.^^  ^^^^^  ^^ 


Richard  X!Tefendant.  )      ^^^^^''  ^°""^y'  ^'^^^'k^- 

The  plaintiff  for  cause  of  action  herein  alleges,  and  shows  to  the 
court  that  on  the  first  day  of  May,  iS96,  the  defendant  hired  from 
the  plaintiff  y?z'^  mowing  machines,  the  property  of  the  plaintiff,  for 
the  space  of  two  months  then  next  ensuing,  for  the  use  of  which  he 
promised  to  pay  to  plaintiff  the  sum  of  thirty  dollars  per  month, 
amounting  in  the  whole  to  the  sum  of  three  hundred  doWars,  which 
sum  became  due  on  the  first  day  oi  July,  iS96,  but  no  part  of  the 
same  has  been  paid. 

Wherefore  plaintiff  demands  judgment  against  defendant  for  said 
sum  of  three  hundred  dollars,  and  the  costs  and  disbursements  of 
this  action 

Jeremiah  Mason^  Plaintiff's  Attorney. 

b.  For  Failure  to  Return  Chattel. 

Form  No.  6322. 

(Precedent   in  Field  v.  Brackett,  56  Me.  X2i.)' 

\{Commencement.y^  For  that  the  said  defendants,  at  Lewiston,  to 
wit,  at  said  Auburn,  on  the  eighteenth  day  oi  June,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  sixty-seven,  had  and  received 

1.  The  defendant  admitted  the  agree-  as  matter  of  law  that  plaintiff  was  enti- 

ment  set  out  in  the  declaration  and  al-  tied  to  recover,  to  which  ruling  defend- 

leged  that  the  wagon  was  stolen  during  ants    excepted,    and   their    exceptions 

the  month  for  which  it  was  hired  while  were  sustained,  the  court  holding  that 

defendants  were  in  the  exercise  of  or-  a  promise  to  "return  in  good  order" 

dinary  and  proper  care,  and  that  they  does  not   make  the   bailee  an  insurer 

had  never  been  able  to  find  and  recover  against  all  casualties  and  contingencies 

the  wagon.     Whereupon  the  question  whatsoever.     No   special  obligation  is 

was  submitted  to  the  presiding  judge,  incurred   beyond    that  which   the    law 

with  the  right  to  except,   whether   as  implies  in  the  ordinary  transaction  of 

matter  of  law  the  plaintiff  was  entitled  letting  a  vehicle  for  hire, 
to  recover.     The  presiding  judge  ruled        2.  See  note  i,  p.  428. 

437  Volume  5. 


6323.  CONTRACTS  OF  HIRE.  6325. 

of  the  plaintiff  the  plaintiff's  single  wagon,  of  the  value  of  one  hun- 
dred ana  fifty  dollars,  the  same  to  be  kept  and  used  by  the  said  de- 
fendants for  the  period  of  one  month  from  the  said  eighteenth  day  of 
June  aforesaid  and  the  said  defendants,  in  consideration  that  the 
plaintiff  would  so  let  to  them,  the  said  defendants,  said  wagon  as  afore- 
said, then  and  there  promised  the  plaintiff  to  return  the  said  wagon 
to  him  at  the  expiration  of  the  month  aforesaid  in  good  order;  yet 
the  said  defendants,  not  regarding  their  promise  aforesaid,  did  not 
return  the  said  wagon  according  to  their  promise,  but  though  the 
month  has  long  since  elapsed,  and  though  often  thereto  requested, 
the  said  defendants  have  neglected  and  refused  and  still  neglect  and 
refuse  so  to  do.      \{Conclusion^^ 

Form  No.  6323. 

Supreme  Court,  Suffolk  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

The  complaint  of  the  above  named  plaintiff  respectfully  shows  to 
the  court,  that  on  the  first  day  oi  January,  i896,  the  defendant  hired 
from  the  plaintiff  one  Steinway  baby-grand  piano,  of  the  value  of  seven 
hundred  dollars,  to  be  used  by  the  defendant  from  \.\it  first  day  of 
January,  iS96,  to  the  first  day  oi  July,  iS96,  and  that  defendant  agreed 
to  take  due  care  of  said  piano,  and  to  return  the  same  to  plaintiff 
at  the  expiration  of  said  term  in  good  condition,  reasonable  wear 
excepted.  That  the  term  for  which  said  piano  was  hired  has  elapsed, 
and  that  defendant  has  not  returned  the  same,  although  on  the  tht'rd 
day  of  July,  i896,  he  was  by  plaintiff  requested  so  to  do. 

Wherefore  plaintiff  demands  judgment  against  the  said  defendant 
for  the  sum  of  seven  hundred do\\a.vs,  with  interest  from  the  second  day 
oi  July^  18P6,  and  all  costs  and  expenses  of  this  action. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

Form  No.  6324. 
(Tenn.  Code  (1896),  §  4660.) 

John  Doe     )      The  plaintiff  sues  the  defendant  for  the  following 

V.  V      horses,  the  property  of  the  plaintiff  (or  other  personal 

Richard  Roe.  )      property,  describing  it  succinctly^  with  the  value  of  the 

hire  or  use  thereof,  during  the  detention,  viz.:  from  the  tenth  day  of 

August.,  i8P^,  to  the  first  day  of  September,  iS96. 

Jeremiah  Mason,  Attorney  for  the  Plaintiff. 

c.  For  Misuse  of  Chattel. 

Form  No.  6325. 

(2  Chit.  PI.  146.)' 
{Commencing  as  in  Form  No.  6318,  and  continuing  down  to  *)  in  con- 

1.  For  the  commencement  and  con-  2.  See  also  substance  of  a  similar 
elusion  of  the  declaration  in  Maine  declaration  in  Frye  v.  Burdick,  67  Me, 
consult  the  title  Declarations.  408. 

438  Volume  5. 


6326.  CONTRACTS  OF  HIRE.  6326. 

sideration  that  the  said  John  Doe,  at  the  special  instance  and  request 
of  the  said  Richard  Roe,  had  let  to  hire  and  delivered  to  the  said  Rich- 
ard Roe  a  certain  horse  of  the  said  John  Doe  of  great  value,  to  wit,  of 
the  value  of  J[^20,  to  be  ridden  and  used  by  the  said  Richard  Roe,  he 
the  said  Richard  Roe  undertook,  and  then  and  there  faithfully  prom- 
ised the  said  John  Doe,  to  ride  and  use  the  said  horse  in  a  moderate, 
careful  and  proper  manner.  And  although  the  said  Richard  Roe  then 
and  there  had  and  received  the  said  horse  of  and  from  the  said  John 
Doe  for  the  purpose  aforesaid ;  yet  the  said  Richard  Roe,  not  regarding 
his  said  promise  and  undertaking,  but  contriving  and  intending  to 
injure  the  said  John  Doe  in  this  behalf,  did  not  nor  would  ride  or  use 
the  said  horse  in  a  moderate,  careful  or  proper  manner,  but  wholly 
neglected  and  refused  so  to  do.  And  on  the  contrary  thereof  he  the 
said  Richard  Roe,  after  the  making  of  his  said  promise  and  undertaking, 
to  wit,  on  the  day  and  year  aforesaid,  at  Middlesex  aforesaid,  so  care- 
lessly and  improperly  rode  and  used  the  said  horse,  that  by  means 
thereof  the  said  horse  became  and  was  greatly  lamed  and  hurt,  and  so 
remained  and  continued  for  a  long  space  of  time,  to  wit,  hitherto,  dur- 
ing all  which  time  he  the  said  John  Doe  thereby  lost  and  was  deprived 
of  the  use  and  benefit  of  the  said  horse,  and  also  thereby  the  said 
horse,  being  of  the  value  aforesaid,  became  and  was  greatly  damaged, 
lessened  in  value,  and  spoiled,  to  wit,  at  Middlesex  aforesaid. 

Wherefore  the  said  yi?,^«  Z>^^  saith  that  he  is  injured  and  hath  sus- 
tained damage  in  the  amount  oi  j£15,  and  therefore  (^concluding  as  in 
Form  No.  6318). 

Form  No.  6326. 

In  the  Superior  Court  of  the  City  and  County  of  San  Francisco,  State 
of  California. 

John  Doe,  plaintiff,      ^ 

against  >■  Complaint  —  Breach  of  Contract  of  Hire. 

Richard  Roe,  defendant.  ) 

John  Doe,  the  plaintiff  in  the  above  entitled  action,  complaining  of 
Richard  Roe,  the  defendant  in  said  action,  alleges: 

I.  That  on  \ht,  first  day  of  January,  iS96,  the  defendant  hired  from 
the  plaintiff  one  Miller  upright  piano  to  be  used  by  the  defendant 
from  the  said  first  day  of  January,  i896,  to  the  first  day  o{  January, 
1 897. 

II.  That  defendant  promised  to  take  due  care  of  said  piano  and  to 
return  the  same  to  plaintiff  at  the  expiration  of  said  term  in  good 
condition,  reasonable  wear  excepted. 

III.  That  the  said  term  for  which  the  said  piano  was  hired  has 
expired. 

IV.  That  defendant  so  negligently  and  improperly  cared  for  said 
piano  that  the  same  was  wholly  lost  to  plaintiff. 

V.  That  the  said  piano  was  of  the  reasonable  value  of  five  hundred 
dollars. 

Wherefore  plaintiff  prays  judgment  against  the  defendant  for  the 
said  sum  of  five  hundred  dollars,  and  costs  of  suit. 

Jeremiah  Mason,  Attorney  for  Plaintifif. 
429  Volume  5. 


6827.  CONTRACTS  OF  HIRE.  6328. 

2.  By  Bailee  for  Defect  in  Chattel  Let. 

Form  No.  6327. 

(2  Wentw.  PI.  155.) 

Markham  and  LeBlanc. 

Trin.  Term,  7  Geo.  II. 

Middlesex^  ss.  William  Fletcher  complains  of  Daniel  Dean,  in  the 
custody  of  the  marshal  of  the  marshalsea  of  our  lord  the  now  king 
before  the  king  himself  of  a  plea  of  trespass  on  the  case  upon  prom- 
ises; for  that  whereas  the  said  William.,  at  the  special  instance  and 
request  of  the  said  Daniel.,  on  the  third  day  of  October  in  the  year  of 
our  Lord  1132.,  at  the  parish  of  St.  Botolph  v^ithowt  Aldgate,  in  the  said 
county,  hired  of  the  said  Daniel  one  gelding,  for  a  journey  with  him 
the  said  William.,  from  thence  to  Chester.,  in  the  county  of  Chester.,  and 
from  Chester  aforesaid  back  to  the  parish  aforesaid,  for  a  certain  price 
or  hire,  to  wit,  for  the  price  of  one  hundred  shillings  of  lawful  money 
of  Great  Britain,  he  the  said  Z>d;«zV/ assumed  upon  himself  and  under- 
took that  the  said  gelding  was  fit  and  able  to  perform  the  said  journey; 
and  although  the  said  William  afterwards,  to  wit,  on  the  said  third 
day  of  October.,  set  forward  on  his  said  journey  to  Chester  on  the  said 
gelding  so  hired  as  aforesaid;  yet,  notwithstanding  the  assumption 
and  undertaking  of  the  said  Daniel  as  aforesaid,  the  said  gelding  was 
not  fit  and  able  to  perform  the  said  journey,  but  tired  on  the  road  in 
the  said  journey,  and  became  entirely  unfit  and  unable  to  perform  the 
residue  of  the  said  journey;  by  reason  of  which  he  the  said  William 
was  put  unto  and  sustained  great  expenses  in  and  about  providing 
himself  with  horses  for  the  residue  of  the  said  journey,  to  the  damage 
of  the  said  William  of  nine  pounds  nineteen  shillings,  and  therefore  he 
brings  suit,  etc. 

Form  No.  6328. 

(Precedent  in  Windle  v.  Jordan,  75  Me.  149.) 

\{Commencement^)Y  In  a  plea  of  the  case,  for  that  the  said  defend- 
ant, at  said  Lisbon,  on  the  second  day  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-nine,  in  consideration 
that  the  plaintiff  at  the  special  instance  and  request  of  the  defend- 
ant, had  hired  of  him  one  horse  and  wagon  for  the  purpose  of  riding 
irom.  Lisbon,  aforesaid,  to  Lewiston  in  said  county,  and  in  return  from 
said  Lewiston  to  said  Lisbon,  for  the  price  and  hire  of  a  reasonable  sum 
of  money,  to  wit:  two  dollars,  and  for  other  good  and  valuable  con- 
siderations, then  and  there  promised  the  plaintiff  that  the  said  horse 
was  sound,  kind,  safe,  and  serviceable,  and  free  from  the  vice  of  kick- 
ing, and  that  the  same  would  perform  well  when  harnessed  in  said 
wagon,  and  was  suitable  to  perform  said  purpose  and  service. 

And  the  plaintiff  in  fact  saith,  that  he,  confiding  in  said  promise  of 
the  said  defendant,  did,  on  the  second  day  of  September,  aforesaid,  set 
forward  on  said  purpose  and  service  with  said  wagon,  drawn  by  said 
horse  of  the  defendant,  hired  for  the  purpose  aforesaid,  as  aforesaid. 

1.  For  the  commencement  and  conclusion  of  a  declaration  in  Maine  consult 
the  title  Declarations. 

480  Volume  5. 


6329.  CONTRACTS  OF  HIRE.  6329. 

Yet  the  said  defendant  did  not  regard  his  promise,  aforesaid,  but 
then  and  there  craftily  and  subtly  deceived  the  plaintiff  in  this,  that 
the  said  horse  was  then  and  there  unkind,  unsafe,  unsound,  and 
unsuitable  for  said  purpose  and  service,  and  that  said  horse  was  not 
free  from  the  vice  of  kicking,  but  on  the  contrary  said  horse  was  then 
there  in  the  habit  of  viciously  and  violently  kicking,  all  of  which  the 
said  defendant  then  and  there  well  knew. 

And  the  plaintiff  avers  that,  in  the  performance  of  said  service, 
the  said  horse  was  driven  and  managed  by  the  plaintiff  with  due  care. 

Yet,  by  reason  of  the  said  unkindness,  unsoundness  and  unsuitable- 
ness  of  the  said  horse  for  said  purpose  and  service,  the  said  horse 
then  and  there  became  restive,  violent,  furious,  and  uncontrollable, 
and  then  and  there,  while  in  said  service,  to  wit:  at  said  Leiuiston, 
the  said  horse  viciously  and  violently  kicked  the  plaintiff  upon  his 
left  knee  and  broke  the  knee-cap  thereof,  and  then  and  there  kicked 
the  plaintiff  upon  his  right  leg  and  upon  his  thumb  and  finger,  all 
without  the  fault  of  the  plaintiff,  and  the  plaintiff  was  thereby  then 
and  there  greatly  and  permanently  injured  in  his  left  knee,  right  leg 
and  thumb  and  finger,  and  by  reason  of  his  said  wounds  and  injuries, 
then  and  there  received,  as  aforesaid,  the  plaintiff  then  and  there,  for 
a  long  time  afterwards,  suffered  great  pain  and  anxiety,  and  became 
sick,  sore,  lame,  disordered,  and  incapable  of  transacting  his  ordi- 
nary and  necessary  labor,  affairs,  and  business;  and  so  continued  for 
a  long  space  of  time,  to  wit:  ever  since. 

And  the  plaintiff  avers  that  his  said  injuries  are  incurable,  that  by 
reason  of  said  wounds,  injuries,  and  bruises  so  received,  as  aforesaid, 
he  was  obliged  to  expend,  and  did  expend  large  sums  of  money,  to 
wit :  three  hundred  dollars,  in  endeavoring  to  be  cured  of  said  wounds 
and  injuries,  occasioned  as  aforesaid,  and  for  board,  nursing,  medi- 
cine, and  attendance.     \(^Conclusion.)iY' 


II.  ACTIONS  EX  DELICT0.2 
1.  By  Bailor  for  Improper  Use  of  Chattel. 

Form  No.  6329. 

(Md.  Pubf.  Gen.  Laws  (1888),  art.  75,  §  23.) 

{Commencing  as  in  Form  No.  6819,  and  continuing  down  to  *)  that 
the  defendant  hirfed  from  the  plaintiff  a  horse  to  ride  from  Frederick 
to  Hagerstown,  and  thence  back  to  Frederick,  in  a  proper  manner; 
and  the  defendant  rode  said  horse  so  immoderately  that  he  became 
lame  and  injured  in  value.  And  the  plaintiff  claims  {concluding  as  in 
Form  No.  6319). 

1.  For  the  commencement  and  con-  suit  the  title  Declarations.  For  the 
elusion  of  a  declaration  in  Maine  con-  formal  parts  of  complaints  or  peti- 
sult  the  title  Declarations.  tions    consult    the    title    Complaints, 

2.  For  the  formal  parts  of  a  declara-  vol.  4,  p.  1019. 
tion   in   a  particular   jurisdiction    con- 

481  Volume  5. 


6330.  CONTRACTS  OF  HIRE.  6331. 

Form  No.  6330. 

(Precedent  in  Spooner  v.  Manchester,  133  Mass.  270.)' 

[(Caption  as  in  Form  No.  6320.)]^ 

And  the  plaintiff  says  the  defendant  hired  the  plaintiff's  horse 
and  carriage  to  drive  from  Worcester  to  Clinton  and  back  in  a  prudent, 
careful  and  proper  manner,  and  that  the  defendant  drove  the  same 
beyond  Clinton  to  Northborough  wrongfully,  and  managed  and  drove 
said  horse  so  improperly,  unskilfully  and  wrongfully  while  at  said 
Northborough  that  said  horse's  ankle  was  broken  and  otherwise 
injured,  to  the  great  damage  of  the  plaintiff. 

[(Signature  as  in  Form  No.  6320.)Y 

2.  By  Bailee  for  Damages  Due  to  Defect  in  Chattel  Let. 

Form  No.  6331.* 

Suffolk,  ss.     Superior  Court.     April  term,  i875. 
Home  et  al.   ) 

vs.  V  Plaintiffs'  Declaration. 

Meakin  et  al.  ) 

And  the  plaintiffs  say  that  the  defendants  are  livery-stable  keepers 
and  accustomed  to  let  horses  and  carryalls  for  hire,  and  the  plaintiff, 
Jatnes  W.  Home,  hired*  of  the  defendants  a  horse  and  carryall  to 
attend  the  funeral  of  a  brother-in-law  and  take  with  him  his  wife  and 
family,  for  a  certain  sum  to  be  paid  by  him  to  the  defendant  for  the 
use  of  such  horse  and  carryall.  And  the  defendants  were  bound  and 
agreed  *  to  furnish  the  plaintiff  with  a  suitable  and  proper  horse  and 
carryall  to  attend  such  funeral.  Yet  the  defendants,  neglecting  their 
said  obligation  and  duty,  did  not  furnish  the  plaintiffs  with  a  suitable 
and  proper  horse  or  suitable  and  proper  carryall  to  attend  such 
funeral,  but  on  the  contrary  furnished  them  with  a  horse  and  carryall 
both  of  which  were  unsuitable  and  improper,^  the  horse  being  unkind, 
vicious,  and  unsafe,  and  the  carryall  frail  and  unsafe,  whereby,  while 
the  plaintiffs  were  riding  in  said  carryall  in  attending  said  funeral,  and 
the  said  James  W.  was  driving  and  exercising  due  care,  said  horse 
suddenly  started  and  ran  and  kicked,  one  of  the  wheels  of  the  carryall 
broke  down,  and  the  female  plaintiff  was  thrown  out  and  bruised  and 
injured  internally  and  subjected  to  great  pain  and  suffering. 

S.  J.  Thomas,  Attorney  for  Plaintiff. 

1.  This  declaration  is  sufficient  in  the  contract  was  made  by  the  father 
form,  but  it  appeared  in  evidence  that  for  his  son  James  W.,  and  if  the  de- 
the  defendant  unintentionally  took  the  fendants  knew  the  purpose  for  which 
wrong  road  in  returning  to  Worcester,  the  horse  was  to  be  used  by  the  son. 
and  having  traveled  on  such  road  a  Home  v.  Meakin,  115  Mass.  326. 

few  miles  discovered  his  mistake  and  5.  In  letting  a  horse  for  hire,  there  is 

took  what  he  considered  the  best  way  an  obligation   and  implied  agreement 

back  to  the  place  of  hiring;  and  it  was  on  the  part  of   the  letter  to  furnish  a 

held  that  he  was  not  liable  in   trover  horse  that  is  suitable  for  the  purpose 

for  the  conversion  of  the  horse.  for  which  it  is  hired.     Home  v.  Mea- 

2.  The  matter  to  be  supplied  within  kin    115  Mass   326. 

[]  will  not  be  found  in  the  reported  case.  6.  It  is  not  necessary  for  the  plain- 

3.  This  form  is  the  declaration  as  tiffs  to  allege  that  the  defendants  knew 
drawn  in  conformity  with  instructions  that  the  horse  was  unsuitable.  The 
of  the  court  in  Home  v.  Meakin,  115  fact  that  the  defendants  did  not  know 
Mass.  326.     It  is  copied  from  the  record,  that  the  horse   was  unsuitable    would 

4.  This  allegation  is  sufficient  if  (as  not  furnish  them  any  defense.  Home 
the   jury    found   in   the   present    case)  v.  Meakin,  115  Mass.  326. 

433  Volume  5. 


CONTRIBUTION. 

By  R.  G.  Dodge. 

I.  BETWEEN  CO-DEBTORS  IN  GENERAL,  433. 
II.  BETWEEN  CO-SURETIES,  441. 

1.  In  General,  441. 

2.  Where  Some  Co-sureties  are  Insolvent,  446. 

3.  Where  Contribution  is  Sought  from  Estate  of  Deceased  Co- 

surety, 447. 

III.  BETWEEN  PARTNERS,  448. 

IV.  BETWEEN  STOCKHOLDERS,  449- 

V.  BETWEEN  JOINT  OWNERS  OF  PROPERTY,  450. 

1.  Where  Plaintiff  has  Repaired  Property,  450, 

2.  Where  Plaintiff  has  Removed  an  Incumbrance  from  Property^ 

453- 
VI.  BETWEEN  CO-DEVISEES  AND  CO-LEGATEES,  455- 

VII.  BETWEEN  JOINT  TORT-FEASORS,  456. 

CROSS-REFERENCES. 

For  Forms  relating  to  General  Average,  see  the  title  GENERAL 
AVERAGE. 

For  matters  of  Substantive  Law,  see  the  title  CONTRIBUTION 
AND  EXONERATION,  7  American  and  English  Ency- 
clopaedia OF  Law  (2d  ed.),  p.  325. 

I.  BETWEEN  CO-DEBTORS  IN  GENERAL. 

Form  No.  6332. 

(Conn.  Prac.  Act,  p.  65,  No.  92.) 

To  the  sheriff  of  the  county  of  Hartford,  his  deputy,  or  either  con- 
stable of  the  town  of  Hartford  \n  said  county  —  Greeting: 
By  authority  of   the    State  of  Connecticut,  you   are   hereby  com- 
manded to  attach,  to  the  value  oi  fourteen  hundred  dollars,  the  goods 

1.  For  the  formal  parts  of  a  declara-  California. — Civ.  Code  (1897),  §  1432; 

tion,  complaint,  petition  or  bill  in  equity  Code  Civ.  Proc.  (1897),  §  709. 

in  a  particular  jurisdiction  consult  the  Delaware.  —  Rev.  Stat.  (1893),  p.  533, 

titles  Declarations  ;  Complaints,  vol.  §  2. 

4,  p.  1019;  Bills  in  Equity,  vol.  3,  p.  Georgia.  —  2  Code  (1895),  §  3991. 

417.  Kentucky.  —  Barb.  &  C.  Stat.  (1S94), 

For  statutes   relating  to  ihe  right  of  §§  484-488,  4665-4667. 

contribution  between  joint  debtors  see  Michigan.  —  How.  Anno.  Stat.  (1882), 

as  follows:  §§  5906,  6122,  6154-6159. 

5  E.  of  F.  P.  -  28.                         433  Volume  5. 


6333.  CONTRIBUTION.  6333. 

or  estate  of  Richard  Roe,  of  Windsor,  in  said  county,  and  him  sum- 
mon to  appear  before  the  Superior  Court  to  be  held  at  Hartford,  in 
and  for  the  county  of  Hartford,  on  the  first  Monday  of  February, 
188O,  then  and  there  to  answer  unto  fo/in  I)oe,  of  said  Hartford,  in  a 
civil  action,  wherein  the  plaintiff  complains  and  says:* 

1.  On  May  1st,  iS79,  the  plaintiff  and  defendant  made  and  deliv- 
ered to  Henry  Rogers  their  promissory  note,  of  which  a  copy  is 
hereto  annexed,  marked  Exhibit^. 

2.  At  the  maturity  of  said  note,  the  plaintiff  was  compelled  to  pay 
and  did  pay  all  of  said  note.^ 

3.  The  defendant  was  and  is  bound  to  pay  %1,000  to  the  plaintiff, 
as  his  contributive  share  thereof. 

4.  On  November  1st,  i879,  the  plaintiff  demanded  of  the  defendant 
said  sum,  or  contributive  share  of  ^1,000,  which  he  refused  to  pay, 
and  no  part  thereof  has  been  repaid  to  the  plaintiff. 

The  plaintiff  claims  %1,200  damages. 

[Samue/  Short  of  Hartford  is  recognized  in  % to  prosecute, 

etc.] 

Of  this  writ,  with  your  doings  thereon,  make  due  return. 
Dated  2X  Hartford,  this  fifteenth  day  oi  January,  188O. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6333. 

(Precedent  in  Security  F.  &  M.  Ins.  Co.  v.  St.  Paul  Ins.  Co.,  50  Conn.  234.)* 
[{Commencing  as  in  Form  No.  6332,  and  continuing  down  /<?*.)]2 
I.  Prior  to  the  2Jfth  of  April,  i87^,  the  defendant  with  the  plain- 
tiff and  other  insurance  corporations,  had  severally  issued  policies  of 
fire  insurance  to  Messrs.  Taylor,  Randall  &*  Co.,  of  Boston,  Massa- 
chusetts, upon  property  on  Central  Wharf,  in  said  Boston,  the  policies 
of  the  defendant  and  plaintiff  being  each  for  the  sum  of  twenty-five 

Minnesota. — Stat.  (1894),  §  5479.  Smith,  70  N.  Y.   537.     And  an   allega- 

Montana.  —  Civ.  Code  (1895),  §  1942.  tion  that  judgment  has  been  recovered 

New  York.  —  Birds.  Rev.  Stat.  (1896),  against    the    plaintiff    is    insufficient, 

p.  1156,  §  922  et  seq.  Huey  v.  Stewart,  69  Ga.  768. 

North  Dakota.  —  Rev.    Codes   (1895),  Payment  Compulsory. — It  must  further 

§  3767.  be   alleged   that  the    payment   by  the 

Oregon.  —  Hill's  Anno.   Laws  (1892),  plaintiff  was  compulsory,  for  a  volun- 

§  298.  tary  payment  gives  rise  to  no  right  of 

Pennsylvania.  —  Bright.     Pur.     Dig.  contribution.      Bradley   v.    Burwell,  3 

(1894),  p.  1095,  §  II.  Den.  (N.  Y.)  61;  Webster's  Appeal,  86 

Washington.    —   Ballinger's      Anno.  Pa.   St.  409;  Aldrich  v.  Aldrich,  56  Vt. 

Codes  &  Stat.  (1897),  §  5294.  324;  Watson  v.  Wilcox,  39  Wis.  643. 

1.  Allegation  of  Payment — Generally. —  As  to  the  effect  of  payment  to  avoid 
There  must  be  an  allegation  in  the  bill  levy  of  execution  after  judgment  see 
or  complaint,  etc.,  to  the  effect  that  the  infra,  note  3,  p.  441. 
plaintiff  has  made  some  payment  of  2.  This  case  was  reserved,  upon  de- 
money,  for  no  right  to  contribution  murrer,  for  the  advice  of  the  supreme 
arises  until  some  payment  has  been  court,  which  advised  the  superior  court 
made.  Taylor  v.  Means,  73  Ala.  468;  that  the  complaint  was  sufficient. 
Smith  V.  State,  46  Md.  617;  Phillips  v.  3.  The  matter  to  be  supplied  within 
Blatchford,  137  Mass.  510;  Van  Petten  [  ]  will  not  be  found  in  the  reported 
V.  Richardson,  68  Mo.  379;  Morgan  v.  case. 

434  Volume  5. 


6333.  CONTRIBUTION.  6333. 

hundred  dollars,  and,  prior  to  said  date,  said  insured  property  had 
been  destroyed  by  fire,  and,  on  said  date,  cleims  were  being  made 
by  the  insured  on  said  policies  against  the  defendant  and  plaintiff  and 
said  other  insurance  corporations. 

2.  Prior  to  said  April  2^,  i87-^,  the  plaintiff  and  defendant, 
together  with  the  German  Insurance  Company,  of  Erie,  Pennsylvania, 
which  had  a  policy  of  insurance  on  said  property  of  %5,000,  and  the 
Mississippi  Valley  Insurance  Company,  oi  Memphis,  Tennessee,  which  had 
a  policy  of  insurance  on  said  property  of  $5,000,  the  Mechanics  and 
Traders  Insurance  Company,  of  Neiv  York  City,  the  Kings  County  Fire 
Insurance  Company,  of  New  York,  the  Franklin  Insurance  Company,  of 
Indianapolis,  Indiana,  the  Franklin  Insurance  ompany,  of  Wheeling, 
West  Virginia,  the  Lafayette  Fire  Insurance  Company,  of  New  York 
City,  the  Adriatic  Fire  Insurance  Company,  of  New  York  City,  the 
Oswego  ^  Onondaga  Insurance  Company,  of  Baldwinsville,  in  the  state 
of  New  York,  the  Ben  Franklin  Insurance  Company,  of  Allegheny,  Penn- 
sylvania, the  Hibernia  Mutual  Fire  Insurance  Company,  of  Newark, 
New  Jersey,  the  Globe  Insurance  Company,  of  Chicago,  Illinois,  and  the 
Clay  Fire  Insurance  Company,  of  Louisville,  Kentucky,  all  of  which  said 
companies  had  severally  policies  on  said  insured  property,  each  of 
$2,500,  had  determined  that  the  claims  made  on  said  policies  by  the 
insured  were  fradulent  and  invalid,  and  on  said  last  mentioned  date 
the  plaintiff  and  defendant  and  said  other  insurance  corporations 
mentioned  in  this  article,  entered  into  and  signed  the  following 
written  agreement  with  each  other:  {Here  was  inserted  a  copy  of  the 
agreement ^^ 

1,  The  ag^reement  set  out  was  in   the  the  companies  subscribing  to  the  agree- 

words  and  figures  following:     "  In  re  ment;  the  management  and  conduct  of 

Taylor,  Randall  6^  Co.  vs.  St.  Paul  Fire  said  resistance  to   said  claims  and  de- 

«&*  Marine  Ins.  Co.  et  als.     The  under-  fense   of   said    suits    and    proceedings 

signed    insurance    companies    having  shall  be  and  is  fully  entrusted  to  and 

policies  outstanding,  issued  to  Taylor,  devolved  upon  a  committee  to  be  com- 

Randall  ^  Co.,  upon  property  on   Cen-  posed  of  VV,  H.  Brazier,  of  the  city  of 

tral  Wharf,  Boston,  upon  which  claims  New    York,   Charles    W.    Sproat,  of  the 

have    been    made    against   said   com-  city  of  Boston,  fames  R.  Lott,  of  the  city 

panics,  do,  in  consideration  of  one  dol-  of  N^ew  York,  and  L.  S.  fordan,  of  the 

lar    by   each    paid    to   the   other,    and  city  of  Boston;  which  committee  shall 

divers  other  good  and  valuable  consid-  have  full  power  and  authority  to  employ 

erations,  mutually  covenant  and  agree  counsel  and    attorneys   to   appear   for 

to  and  with  each  other  as  follows,  that  said  companies  and  each  thereof  .and 

is  to  say,  the  said  companies  will  unite  defend  said  suits  and  legal  proceedings, 

in  resisting  the  claim  made  upon  said  and  to  employ  other  persons  for  other 

policies,  and  on  each  thereof,  and  in  the  services  relative  thereto,  and  to  assess 

defense  of  any  and  all  suits  and  legal  upon   and   demand   and   receive  from 

proceedings  that  have  been  or  may  be  such    companies   from    time   to    tims. 

instituted  against  any  of  said  compa-  as  such  committee  shall  deem  proper, 

nies  upon  any  of  said  policies,  and  will,  such  sum  or  sums  of  money,   for  the 

when  and  as  required  by  the  committee  compensation  of  such  counsel  and  at- 

hereinafter    mentioned,    contribute    to  torneys,  and  such  other  persons,  and 

and  pay  the  costs,  fees  and  expenses  all  other  expenses  of  such  defense  of 

of  said  suits  and  procedings  pro  rata,  said  suits,  as  said  committee  shall  deem 

that  is  to  say,  each  company  shall  pay  necessary  and  expedient;  such  assess- 

such  proportion  of  said  costs,  fees  and  ment   upon   and    payment   by  each  of 

expenses    as   the    amount   insured  by  said  companies  to  be  pro  rata  as  above 

said   company  shall  bear  to  the  whole  mentioned.      Each  and   every  of  said 

amount  insured  on  said  property  by  all  companies    shall   fully  and    faithfully 

435  Volume  5. 


6333.  CONTRIBUTION.  6333. 

3.  At  tne  time  of  the  execution  of  said  agreement  suits  were  pend- 
ing in  Massachusetts  against  the  Franklin  Insurance  Company^  oi  Indian- 
apolis, and  the  Clay  Insurance  Company,  oi  Kentucky,  and  the  defendant, 
and  the  caption  of  said  agreement  refers  to  such  suits. 

4.  Mr.  Edward  T.  Woodivard,  of  said  Boston,  was  duly  employed, 
under  said  agreement,  on  behalf  of  the  subscribers  thereto,  to  assist 
in  the  defense  of  said  suits  as  an  expert  on  sundry  matters  therein 
involved  and  for  other  purposes,  and  in  pursuance  of  such  employ- 
ment the  said  Woodward  rendered  great  and  valuable  services  in  the 
defense  of  said  suits. 

5.  After  long  and  exhaustive  trials  the  plaintiffs  in  those  suits  were 
beaten  on  the  merits  of  the  controversy,  and  it  was  established  as  the 
results  of  said  suits  that  the  plaintiffs  therein  would  not  be  able  to 
enforce  their  claims  against  the  subscribers  to  said  agreement. 

6.  At  the  close  of  said  suits  said  Woodward  presented  to  the  com- 
mittee mentioned  in  said  agreement  a  bill  for  his  services,  amounting 
to  the  sum  of  %5,000,  which  bill  was  approved  by  said  committee  and 
was  reasonable,  and  was  so  adjudged  by  the  United  States  Circuit 
Court  as  below  stated. 

7.  In  a  reasonable  time  thereafter  said  committee  levied  an  assess- 
ment upon  the  companies  who  were  parties  to  said  agreement,  to 
pay  the  bill  of  said  Woodward  and  other  expenses  incurred  in  said 
suits,  but  no  company  paid  its  assessment;  each  of  said  companies, 
including  the  defendant,  alleging  the  bill  to  be  unreasonable  in 
amount. 

8.  In  the  year  i87P  said  Woodward  sued  this  plaintiff  in  said  Boston, 
to  recover  for  his  said  services,  and  thereafter  such  proceedings 
were  had  as  that  in  the  United  States  Circuit  Court  for  the  First  Cir- 
cuit, held  in  Boston,  in  January,  1S8O,  said  Woodward  recovered 
judgment  against  this  plaintiff  for  the  value  of  his  services  so  ren- 
dered as  aforesaid,  to  the  amount  of  $5,000  and  interest  thereon,  the 
whole  of  said  judgment  being  about  the  sum  of  $,5,J/J/J/..08.  Each  of 
said  defendants  knew  of  the  existence  of  said  suit,  and  during  its 
progress  claimed  that  said  bill  was  unreasonable  in  amount. 

9.  On  an  execution  issued  on  said  judgment,  this  plaintiff,  on 
March  26,  1S8I,  paid  the  whole  amount  thereof,  which  with  interest 
was  the  sum  last  above  stated,  and  this  plaintiff  was  further  sub- 
jected to  the  payment  of  the  additional  sum  of  $9^3,  being  for 
expenses  and  legal  services  incidental  to  the  trial  of  said  cause. ^ 

10.  Since  the  signing  of  said  agreement,  and  before  March  26, 
188 1,  the  said  German  Insurance  Company,  the  Hibernian  Mutual  Fire 
Insurance  Company,  and  the  said  Globe  Insurance,  Company,  represent- 

adhere  to  this  agreement,  and  shall  re-  and  conduct  of  such  resistance  and  de- 

frain   from  any  act  or  proceedings  in  fense,  as  may  be  in  the  possession  or 

reference  to  such  claims  or  suit  or  the  power  of  said  companies  respectively 

defense  thereof  that  can  or  may  in  any-  and  as  may  be  desired  by  said  commit- 

wise  defeat,  obstruct  or  interfere  with  tee.     In  witness  whereof,  the  said  in- 

the  acts  or  proceedings  of  said  commit-  surance    companies    have    subscribed 

tee   relative   thereto,  and   shall  at  all  this  agreement,  the  24th  day  of  April, 

times   furnish  to  said   committee   any  187.^." 

and  all  papers,  information  and  assist-  1.  See  supra,  note  i,  p.  434. 
ance  in  and  about  such  management 

436  Volume  5. 


6334.  CONTRIBUTION.  6334. 

ing  in  all  %10flOO  of  the  insurance  on  said,  property,  had  utterly 
failed  and  there  were  in  existence  no  assets  of  said  companies  or  of 
either  of  them ;  and  the  said  Oswego  6^  Onondaga  Insurance  Company 
had  been  dissolved  under  the  laws  of  the  state  of  New  York  and  could 
not  be  sued  in  law  or  equity  in  that  state  and  is  not  within  the  juris- 
diction of  this  court. 

11.  On  or  about  May  23,  i881,  the  plaintiff  made  demand  upon 
all  the  remaining  signers  to  said  agreement,  including  the  defendant, 
that  they  should  contribute  according  to  the  amount  of  their  several 
policies  to  reimburse  the  plaintiff  what  would  be  legally  and  equi- 
tably due  on  the  facts  aforesaid. 

12.  Some  companies,  other  than  the  defendant  and  other  than  said 
insolvent  companies,  have  responded  to  the  demand  of  the  plaintiff, 
so  that  there  remains  unpaid  of  the  sum  of  ^,444-OS,  the  principal 
sum  of  ^,252.52,  and  of  the  sum  of  $943,  the  principal  sum  of  $^00, 
but  the  defendant  has  refused  to  pay  to  the  plaintiff  any  sum  whatever. 

13.  All  the  other  signers  to  said  agreement,  except  the  defendant, 
are  without  the  jurisdiction  of  this  court. 

The  plaintiff  claims  equitable  relief,  and  that  there  be  an  account- 
ing between  the  plaintiff  and  the  defendant,  and  that  of  the  sums 
paid  by  the  plaintiff  as  aforesaid,  and  remaining  unpaid,  the  defend- 
ant be  decreed  and  ordered  to  pay  the  plaintiff  one-half  thereof,  to 
wit:  the  sum  of  $1,750;  and  such  other  relief  as  shall  be  equitable  in 
the  premises.      \{Concluding  as  in  Form  No.  6332).^ 


Form  No.  6334, 
In  the  Cook  County  Circuit  Court. 


February  Term,  \W8. 


State  of  Illinois,  \ 
County  of  Cook,  f  ^^• 

John  Doe,  plaintiff,  by  Jeremiah  Mason,  his  attorney,  complains  of 
Richard  Roe,  defendant,  in  a  plea  of  trespass  on  the  case  on  promises: 
For  that  whereas  the  said  plaintiff  and  said  defendant,  jointly,  as 
purchasers,  on  the  fourth  day  oi  January,  i896,  entered  into  a  written 
contract,  under  their  joint  seal,  with  Richard  Fen,  of  the  city  of  Chi- 
cago, in  said  county  of  Cook,  as  vendor  for  the  purchase  of  a  certain 
tract  of  land  {describing  it),  whereby  said  Doe  and  said  Roe  promised 
to  pay  therefor  the  sum  of  eighty  thousand  dollars,  in  five  monthly 
instalments  of  sixteen  thousand  dollars  each,  on  the  first  day  of  each 

1.  The  matter  to  be  supplied  within  he  had  "discharged"  the  judgment. 
[  ]  will  not  be  found  in  the  reported  Under  a  declaration  in  that  form,  it  is 
case.  of  course  necessary  to  introduce  evi- 

2.  This  declaration  is  based  on  the  dence  as  to  the  amount  which  was  paid 
facts  in  the  case  of  Harvey  v.  Drew,  82  in  discharging  the  judgment,  for  it  is 
111.  606.  In  the  form  given  in  the  text,  not  the  amount  of  the  judgment,  but 
however,  it  is  alleged  that  the  plaintiff  the  sum  paid  by  the  plaintiff,  which 
had  been  compelled  to  pay  the  entire  determines  the  extent  of  the  defend- 
sixteen    thousand   dollars    with   costs,  ant's  liability. 

while  in  the  case  on  which  the  form  is        See  also  the  substance  of  plaintiff's 
based   the   plaintiff   compromised    the     statement  of  claim  in  a  similar  case  in 
judgment   for  a  smaller   amount  and     Flanagan  v.  Duncan,  133  Pa.  at.  373. 
merely  alleged  in  his  declaration  that 

437  Volume  5. 


6335.  CONTRIBUTION.  6335. 

month,  beginning  with  Xh&  first ddiy  oi  February,  i896.  That  the  first 
/our  instalments  were  duly  paid,  but  that  the  fi/t/i  instalment,  due  the 
firs/  day  oi  June,  iS96,  was  not  paid;  and  that  said  instalment  still 
remaining  unpaid  said  Richard  Fen  began  suit  therefor  in  the  Circuit 
Court  of  Cook  county,  and  on  the  twenty-eighth  day  of  November,  i896, 
recovered  judgment  therein  against  said  Z>oea.nd  Roe  for  sixteen  thou- 
sand dollars,  the  amount  of  said  instalment,  together  with  one  hundred 
and  twenty-four  dollars  and  fifty-two  cents  costs.  That  on  the  thirtieth 
day  of  Noi'ember,  i896,  execution  was  duly  issued  upon  said  judgment 
directed  against  said  i)oe  and  said  Roe,  to  the  sheriff  of  the  county  of 
Cooh  aforesaid;  that  in  order  to  prevent  the  levy  of  such  execution 
upon  his  property,  said  fohn  Doe  paid  to  the  sheriff  of  Cook  county 
aforesaid  the  amount  of  said  judgment,  sixteen  thousand  one  hundred 
and  ttventy-four  dollars  and  fifty-two  cents.  ^ 

Whereby  the  defendant  Richard  Roe,  by  virtue  of  the  facts  herein- 
before alleged,  becomes  indebted  and  liable  to  pay  to  the  plaintiff 
one-half  of  the  amount  of  said  judgment,  to  wit,  the  sum  of  eight  thou- 
safid  and  sixty-two  dollars  and  twelve  cents,  and  being  so  indebted  the 
defendant,  in  consideration  thereof,  then  and  there  promised  the 
plaintiff  to  pay  him  the  said  sum  of  money  on  request. 

Yet  the  said  defendant,  notwithstanding  his  said  promises,  though 
often  requested  thereunto  by  the  plaintiff,  has  not  paid  the  same  or 
any  part  thereof,  but  neglects  and  refuses  wholly  so  to  do,  to  the 
damage  of  the  plaintiff  eighteen  thousand  dollars,  and  therefore  he 
brings  his  suit,  etc. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

Form  No.  6335. 

(Precedent  in  Sexton  v.  Sexton,  35  Ind.  8g.) 

State  of  Indiana, )  In  the  court  of  George  IV.  Beard,  justice  of  the 

Greene  county.      \     '        peace  of  Center  township. 
Lemuel  B.  Sexton 

V. 

John  G.  Sexton. 

Lemuel  B.  .S^;c/<9;z,  plaintiff,  complains  oi  John  G.  Sexton,  defend- 
ant, and  says  that  on  the  10th  day  oi  January,  i860,  the  said  plaintiff 
and  defendant,  by  their  promissory  note,  a  copy  of  which  is  filed 
herein, 2  promised  to  pay  to  the  order  of  IVm.  Stalcup,  Wm.  Haltsdaw, 
James  G.  Stalcup  and  Squire  Graves,  under  the  name  and  style  of 
Hance  Stalcvfs  heirs,  the  sum  of  two  hundred  and  forty-seven  dollars 

1.  See  supra,  note  i,  p.  434.  appraisement,    or    stay  laws,   with  in- 

2.  The  note,  a  copy  of  which  was  filed     terest  from  date. 

with  the  complaint,  was  as  follows:  Lemuel  B.  Sexton. 

''%2^y./8.  fohn  G.  Sexton." 

£  loom f eld  January  loth,  i8<5o.  And  it  was  held  that  in  the  absence 

On  or  htiorc  \he  2jthd2^yol  December,  of   an    allegation   to    the   contrary,    it 

i8do,  after  date,  we  promise  to  pay  to  was  to  be  presumed   that  both   parties 

the  order  of  Hance  Stalcup' s  heirs  two  were  principals,  and  the  complaint  was 

hundred   and  forty-seven    dollars    and  therefore  sufficient  to  entitle   the  plain- 

eighteen  cents,  for  value  received,  with-  tiff  to  recover   one-half   from    the   di- 

out  any  relief  whatever  from  valuation,  fendant, 

488  Volume  5. 


6336.  CONTRIBUTION.  6336. 

and  eighteen  cents,  with  interest  from  date;  that  on  the  Ith  day  of 
January,  i861,  said  plaintiff  paid  on  said  note  the  sum  oi  fifty  dollars; 
that  on  the  £2d  day  oi  January,  iSOl,  said  ptaintiff  paid  on  said  note 
the  sum  of  one  hundred  and  two  dollars;  the  12th  day  of  April,  iS61, 
said  plaintiff  paid  on  said  note  the  sum  of  twenty  dollars;  that  on  the 

day  of ,  \%61  or  i86^,  said  plaintiff  paid  the  remainder 

of  said  note,  principal,  and  interest,  and  that  said  last  payment  was 
never  credited  on  said  note;  that  said  defendant  y^;^//  G.  Sexton,  has 
never  paid  said  plaintiff  the  one-half  of  said  note,  principal  and 
interest,  paid  by  said  plaintiff  for  said  defendant  on  said  note, 
although  often  requested  so  to  do;  wherefore  [plaintiff  prays  judg- 
ment against  said  defendant  for  one  hundred  and  thirty  dollars,  and 
for  other  proper  relief. 

D.  E.  Williams,  Attorney  for  Plaintiff. ]i 

Form  No.  6336.* 

To  the  Supreme  Court. 
Rockingham,  ss. 

James  O.  Walker,  Randolph  C.  Hurd,  Lawrence  Huse,  Arthur  M. 
Moody,  Robert  Dorral,  and  William  Plumer,  all  of  Exeter  in  said  county 
of  Rockingham,  complain  of  John  Cheever  and  Henry  Cheever,  as  execu- 
tors of  the  will  of  Charles  A.  Cheever,  deceased,  both  of  said  Exeter, 
and  say:  That  the  six  complainants  above  named,  together  with 
Charles  A.  Cheever,  John  Knowlton,  Thomas  A.  Tullock,  and  Josiah 
Stevens,  all  also  of  said  Exeter,  on  the  twenty-sixth  day  oi  April,  i852, 
made  and  delivered  to  Xht  Boston  and  Maine  Railroad  Company,  a.  cor- 
poration organized  and  existing  under  the  laws  of  the  commonwealth 
of  Massachusetts,  their  joint  and  several  promissory  note,  whereby 
they  promised  to  pay,  in  six  months  from  said  day,  to  said  Boston  and 
Maine  Railroad  Company,  or  order,  the  sum  of  ten  thousand  dollars, 
with  legal  interest  thereon: 

That  said  note  was  made  by  the  said  makers  aforenamed  for  the 
accommodation  of  the  Portsmouth  and  Concord  Railroad  Company,  a 
corporation  organized  and  existing  under  the  laws  of  the  state  of 
New  Hampshire,  to  which  corporation  the  sum  of  ten  thousand  doWars, 
as  consideration  for  said  note,  was  paid,  on  the  tiventy-sixth  day  of 
April,  before  mentioned,  by  the  said  Boston  and  Maine  Railroad  Com- 
pany. 

That  said  Charles  A.  Cheever  died  at  said  Exeter  on  theyfrj/"  day  of 
September,  iS52,  testate;  that  his  will  was  duly  proved  at  a  Court  0/ 
Probate  held  at  Exeter  within  and  for  the  county  of  Rockingham,  on 
the  nifith  day  of  November,  i852;  that  by  said  will  the  defendants 
John  Cheever  and  Henry  Cheever  were  nominated  executors  and  de- 

1.  The  words  enclosed  by  [  ]  will  not  jurisdiction  of  the  court,  and  that  it 
be  found  in  the  reported  case,  but  have  appeared  that  the  complainants  had  an 
been  added  to  render  the  form  com-  adequate  remedy  at  law.  The  court 
plete.  held,  however,  that  the  bill  stated  suffi- 

2.  In  Walker  v.  Cheever,  35  N.  H.  cient  grounds  for  equitable  relief,  and 
339,  upon  the  facts  of  which  case  this  that,  notwithstanding  the  complain- 
bill  is  based,  the  defendant  demurred  ants  might  have  had  an  adequate 
on  the  ground  that  the  case  made  by  remedy  at  law,  equity  was  not  ousted 
the  bill  did  not  fall  within  the  equity  of  its  jurisdiction. 

489  Volume  5. 


6336.  CONTRIBUTION.  6336. 

clared  residuary  legatees;  and  that  said  defendants  duly  gave  bond 
as  such  executors,  and  duly  qualified,  and  accepted  such  trust: 

That  on  \X\^  first  day  oi  July,  i85^,  in  order  to  avert  suit  then 
threatened  by  said  Boston  and  Maine  Railroad  Company,  then  holder 
of  said  note,  the  six  complainants  above  named  were  compelled  to 
pay,  and  did  pay,  to  said  company  the  sum  of  ten  thousafid  dollars  in 
payment  and  discharge  of  said  note: 

That  said  John  Knowlton  and  said  Thomas  A.  Tullock  have  since 
such  payment  paid  and  refunded  to  the  complainants  the  sums  of 
one  thousand  dollars  each,  wherefore  no  claim  is  made  against  them 
and  they  are  not  made  defendants  herein: 

That  suits  at  law  have  been  commenced  against  said  Josiah  Stevens 
for  the  purpose  of  recovering  from  him  his  proportion  of  the  note, 
but  whether  said  Stevens  is  solvent  or  not,  or  whether  his  share  will 
be  collected,  the  complainants  are  unable  to  say: 

That  there  is  due  from  the  defendants,  as  executors  and  residuary 
legatees  of  said  Charles  A.  Cheever,  to  the  complainants,  on  account 
of  said  payment  of  said  note,  and  by  way  of  contribution,  the  sum  of 
one  thousand  dollars,  with  interest  thereon  from  the  first  day  of  July, 
i85^  aforesaid: 

That  there  have  come  to  the  hands  of  said  defendants,  as  such 
executors  or  as  such  residuary  legatees,  sufficient  goods  and  estate 
of  the  said  Charles  A.  Cheever  to  satisfy  the  complainants'  claim: 

That  immediately  after  the  payment  of  said  note  by  the  com- 
plainants, the  complainants  made  demand  upon  the  defendants,  as 
executors  of  said  Cheever,  to  pay  to  said  complainants  one  thousand 
dollars, as  the  share  of  said  Cheever,  ow  the  payment  of  said  note;  but 
the  defendants  refused  and  have  ever  since  refused  so  to  do,  and  the 
same  has  not  been  paid: 

That  since  the  probate  of  the  will  of  said  Cheever,  aforementioned, 
the  defendants  have  for  the  most  part  resided  out  of  this  state,  so 
that  the  complainants  have  not  had  the  means  or  opportunity,  for 
the  space  of  time  allowed  by  the  statute  and  laws  of  this  state  in  such 
cases,  to  prosecute  their  claim  against  the  executors,  the  said  defend- 
ants, at  law  or  in  equity  or  to  serve  process  on  them. 

Wherefore  the  complainants  pray  that  it  may  be  ordered  and  de- 
creed by  said  court,  that  the  defendants  come  to  a  fair  and  just  ac- 
count with  the  complainants  of  the  note  aforesaid,  and  of  the  money 
paid  thereon  by  the  complainants,  and  of  the  interest,  charges  and 
expenses  thereon,  and  of  the  fair  and  just  share  of  the  same  to  be 
paid  out  of  the  estate  of  the  said  Charles  A.  Cheever  by  the  defend- 
ants as  executors  thereof;  and  that  the  defendants  may  be  required 
forthwith  to  pay  the  sum  so  found  due  from  them  in  such  capacity  to 
the  complainants;  and  for  such  other  and  further  relief  as  may  be  just. 

James  O.  Walker. 
Randolph  C.  Hurd. 
Lawrence  Huse. 
Arthur  M.  Moody. 
Robert  Dorral. 
William  Plumer. 

Emery  &'  Hatch,  Solicitors. 

440  Volume  5. 


6337.  CONTRIBUTION.  6337. 

Form  No.  6337. 

(Precedent  in  Gaster  v.  Waggoner,  ?6  Ohio  St.  450.)* 

^^Wyanfot  County,  ss.  [  ^"  ^^^  ^^""^  '^  ^''^^^^  ^^^^"- 
Rosina  Waggoner,  plaintiff,  1 

against  >  Petition. 

Robert  Gaster^  defendant.  ) 

The  plaintiff  says:]^ 

That  on  the  12th  day  of  May,  \?>12,  John  D.  Sears,  R.  McKelly,  C. 
Berry,  Jr.,  Henry  Maddix,  and D.  D.  Hare  recovered  a  judgment  in  the 
Coxxrt  oj  Common  Pleas  of  Wyandot  co\xnX.y ,  in  the  State  of  Ohio,  against 
the  plaintiff  and  the  defendant,  Robert  Gaster,  for  the  sum  of  ^1,206 
debt,  and  costs  of  suit  amounting  to  %6.96.  That  on  or  about  the  1st 
day  of  June,  x873,  the  plaintiff,  with  her  own  means,  paid  off  said 
judgment  and  costs  in  full,  whereby  the  defendant,  Robert  Gaster, 
became  indebted  to  the  plaintiff  in  the  sum  of  ^606. 4S,  with  interest 
from  May  12,  iS73. 

[Wherefore  said  plaintiff  prays  judgment  against  said  defendant 
for  said  sum  of  ^06.^8,  with  interest  from  the  twelfth  day  of  May, 

A.  D.  1 875. 

John  D.  Sears,  Plaintiff's  Attorney.]^ 
II.  BETWEEN  CO-SURETIES. 

1.  In  General.^ 

1.  The  defendant  in  this  case  demur-  to  the  cause  of  action  upon  which  the 

red  to  the  petition  on   the  ground  that  judgment  had  been  rendered,  and  the 

the  nature  of  the  cause  of  action  which  court   held  that  it  could    not  infer,  as 

produced  the  judgment  was  not  stated,  matter  of  law,  that  the  cause  of  action 

and   that   it   did   not   appear   that   the  was    one    which     imposed    upon    the 

defendant  was  beneficially  interested  in  defendant  the  duty  to  contribute,  and 

the  consideration  of  the  joint  liability  hence  that  no   sufficient   consideration 

on  which   the  judgment  was  obtained,  for  the  implied  promise  to  contribute 

But  the  court  held  that,  as  it  appeared  was  alleged. 

that    the    judgment    was    against    the  2.  The  words  and  figures  enclosed  by 

plaintiff  and  the  defendant  jointly,  and  [  ]  will  not   be  found    in    the  reported 

was  for  a  debt,  it  was  fairly  made  out  case,  but  have  been  added  to  render  the 

that  the  claim   was  founded  on  a  con-  form  complete. 

tract  and  that  the  parties  against  whom  3.  Forthe  formal  parts  of  a  declaration, 

the  judgment  was  rendered  were  jointly  complaint,  petition  or  bill  in  equity  in 

liable  for  the  claim;  that  the  case  thus  a    particular    jurisdiction   consult   the 

stated  in  the  petition  was /rjwa/rtfjV  in  titles  Declarations;   Complaints,  vol. 

favor  of  the  plaintiff's  right  tocontribu-  4,  p.  1019;  Bills  in  Equity,  vol.  3,  p. 

tion.     It  was  for  the  defendant  to  show  417. 

that  the  parties  were  not  equally  liable  For  Btatatee  relating  to  contribution 

on  the  f^laim.  among  co-sureties  see  as  follows: 

On  the  other  hand,  in  Bailey  v.  Buss-  Alabama.  —  Civ.  Code  (1886),  §§  3149, 

ing,  2g  Conn,  i,  the  declaration  alleged  3151. 

that  a  joint  judgment  had  been  recov-  California.  —  Civ.  Code  (1897).  §2848; 

ered  against  the  plaintiff,  the  defendant  Code  Civ.  Proc.  (1897),  §  709. 

and   another,  which    the   plaintiff   had  Delaware.  —  Rev.  Stat.  (1893),  p.  533, 

been   compelled   to  pay,  and   that   the  §  3. 

defendant  was  in  duty  bound  and  liable  Florida.  —  Rev.  Stat.  (1892),  §  983. 

to  pay  to  the  plaintiff  one-third  of  the  Georgia.  —  2   Code    (1895),    §§    2989, 

amount,  but  contained  no  allegation  as  2992-2994. 

441  Volume  5. 


6337. 


CON  TRIE  UTION. 


6337. 


Idaho.  — Kcv.  Stat,  (1887).  §  411. 

Indiana.  —  Horner's  Stat.  (1896),  § 
1215. 

Iowa.  — Code  (1897),  §  3826. 

Kentucky.  —  Barb.  &  C.  Sut.  (1894), 
§4665. 

Louisiana. —  Voorhies'  Rev.  Civ.  Code 
(1889),  arts.  2104,  3058. 

Maine.  —  Rev.  Stat.  (1883),  c.  47,  §  9. 

Maryland. —  VvLb.  Gen.  Laws  (1888), 
art.  8,  g  7. 

Minnesota.  —  Stat.  (1894),  §  5479. 

Mississippi.  —  Anno.      Code     (1892), 

§  3279- 

Missouri.  —  Rev.  Stat.  (1889),  $5  8349: 
Burns'  Anno.  Prac.  Code  (1896),  5^1179. 

Montana.  —  Civ.  Code  (1895),  §  3694; 
Code  Civ.  Proc.  (1895),  |  1242. 

New  Jersey.  —  Gen.  Stat.  (1895),  p, 
2566,  I  199. 

North  Carolina. — I  Code  (1883),  §  2094. 

North  Dakota.  —  Rev.  Codes  (1895), 
§4660. 

South  Carolina.  —  Rev.  Stat.  (1893), 
§  2310. 

Tennessee.  — Code  (1896),  §  5390. 

Texas.  —  Rev.  Stat.  (1895),  arts.  3S15, 
3816. 

Virginia.— Code  (1887),  g 2895. 

IV  a  s  h  ington.  —  Ballinger's  Anno. 
Codes  &  Stat.  (1897),  §  5710. 

West  Virginia.  — Code  (1891),  c.  lOl, 

All^ation  of  Payment  —  Generally.  — 
There  is  no  right  to  contribution  until 
payment  of  the  debt,  and  payment  must 
consequently  be  alleged.  See  supra, 
note  I,  p.  434.  But  an  allegation 
that  plaintiff  paid  the  debt  by  giving 
his  note  is  sufficient.  Owen  v.  McGehee, 
61  Ala.  440;  Keller  z/.  Boatman,  49  Ind. 
104;  Srubbins  v.  Mitchell,  82  Ky.  535. 

What  the  plaintiff  has  received  from 
the  principal  must,  of  course,  be  de- 
ducted from  the  amount  toward  which 
defendant  must  contribute,  and  plain- 
tiff is  bound  to  realize  on  securities  for 
the  benefit  of  his  co-sureties;  and  if 
plaintiff's  declaration  shows  that  the 
plaintiff  has  surrendered  such  security 
without  the  consent  of  his  co-surety,  or 
has  failed  to  collect  it,  it  is  fatally  de- 
fective. Taylor  v.  Morrison,  26  Ala. 
728;  Chilton  V.  Chapman.  13  Mo.  470; 
Kerns  v.  Chambers,  3  Ired.  Eq.  (38  N. 
Car.)  576. 

Payment  under  Compulsion.  —  It 
should  appear  that  the  payment  by 
plaintiff  was  not  voluntary,  that  is,  was 
not  one  that  he  could  legally  have  re- 
sisted. Skillin  V.  Merrill,  16  Mass.  40; 
Russell  V.  Failor,  i  Ohio  St.  327;  Aid- 
rich  V.  Aldrich,  56  Vt.  324.     Thus  if  it 


appear  that  the  plaintiff  paid  a  note 
which  was  barred  by  the  statute  of  limi- 
tations, the  defendant  could  success- 
fully demur.  Shelton  v.  Farmer,  g 
Bush  (Ky.)  314.  But  if  plaintiff  allege 
that  a  judgment  was  recovered  against 
him,  that  is  sufficient  without  a  further 
allegation  that  an  execution  was  is- 
sued. Stallworth  v.  Preslar,  34  Ala. 
505;  Buckner  v.  Stewart,  34  Ala.  529; 
Bradley  v.  Burwell,  3  Den.  (N.  Y.)  61, 
And  in  many  states  a  complaint  which 
merely  sets  forth  a  valid  debt,  due  in 
pmsenti,  without  even  alleging  the  re- 
covery of  a  judgment  against  the  plain- 
tiff, is  sufficient.  Fishback  v.  Weaver, 
34  Ark.  569;  Harvey  v.  Drew,  82  111. 
606;  Minneapolis  Mill  Co.  v.  Wheeler, 
31  Minn.  121;  Crisfield  v.  Murdock,  127 
N.  Y.  315;  Mason  v.  Pierron,  69  Wis. 
585. 

Co-surety's  Knowledge  of  Bait.  —  In 
Malin  v.  Bull,  13  S.  &  R.  (Pa.)44i,  it  was 
held  that  a  surety  who  had  been  com- 
pelled, by  a  suit  at  law,  to  pay  the 
debt,  need  not  allege,  in  his  complaint 
against  his  co-surety  for  contribution, 
that  the  latter  had  notice  of  the  earlier 
suit.  If  there  was  no  such  notice,  how- 
ever, the  court  says  it  would  be  open 
to  the  defendants  to  show  that  the 
former  judgment  was  erroneous.  It 
would  seem  that,  whether  there  were 
notice  or  not,  the  surety  would  not  be 
concluded  as  to  his  liability  for  the 
debt  by  a  judgment  against  his  co- 
surety unless  he  was  a  party  to  the 
suit.  Lowndes  v.  Pinckney,  i  Rich. 
Eq.  (S.  Car.)  155;  Glasscock  v.  Hamil- 
ton, 62  Tex.  143. 

Payment  of  More  than  Plaintiff's  Share. 
—  The  complaint  or  declaration  must 
allege  that  the  plaintiff  has  paid 
more  than  his  just  share  of  the  debt. 
Taylor  v.  Means,  73  Ala.  468;  Lytle  v. 
Pope,  II  B.  Mon.  (Ky.)  309;  Wood  v. 
Leland,  i  Met.  (Mass.)  387.  But  it  need 
not  necessarily  show  that  plaintiff  has 
paid  more  than  half  the  debt,  provided 
it  sets  forth  that  the  creditor  has 
given  a  release  in  full  or  that  the  debt 
is  discharged.  Stallworth  v.  Preslar, 
34  Ala.  505;  Werborn  v.  Kahn,  93  Ala. 
201. 

Inability  to  Collect  from  Principal. — 
There  has  been  much  difference  of 
opinion  as  to  whether  plaintiff  must 
allege  that  he  has  been  unable  to  ob- 
tain reimbursement  from  the  principal, 
or,  in  other  words,  that  the  latter  is  in- 
solvent. In  equity,  it  seems  that  such 
an  allegation  is  necessary.  Morrison 
V.  Poyntz,  7  Dana  (Ky.)  307;  Stone  v. 


442 


Volume  5. 


6338. 


CONTRIBUTION. 


6338. 


Form  No.  6338. 

(Precedent  in  Siallworth  v.  Preslar,  34  Ala.  506.) 

fS:i"'cou„fr"""'  }  '"  ">e  CircuU  Court,  Jun<  Term,  ^m.\ 


William  M.  Stallworth 

vs. 

Holden  Preslar. 


The  plaintiff  claims  of  blie  defendant  the 
sum  of  five  hundred  dollars,  being  one-half 
the  sum  of  one  thousand  dollars,  paid  by  said 
plaintiff  in  satisfaction  of  a  certain  judgment  rendered  in  the  county 
court  of  Monroe  county,  Alabama^  at  its  January  term,  i8^^,  for  the 
sum  of  three  thousand  four  hundred  and  sixty-six  31-100  dollars, 
together  with  the  costs,  in  favor  of  Halsey,  Utter  &*  Co.,  against 
Thomas  R.  Watts  and  said  plaintiff;  said  judgment  being  founded  on 
a  promissory  note  for  the  sum  of  two  thousand  six  hundred  and  forty- 
six  OJf-100  dollars,  made  at  Sparta,  Alabama,  on  the  11th  July,  iS37, 
negotiable  and  payable  at  the  Branch  Bank  at  Mobile,  due  on  the 
1st  day  of  March  next  after  the  date  thereof,  signed  by  said  Thomas 
R.  Watts,  said  defendant  and  plaintiff,  and  in  favor  of  Halsey,  Utter 
dr*  Co.  And  said  plaintiff  avers  that  he  together  with  said  defend- 
ant signed  said  note  as  the  sureties  of  said  Watts-,  that  suit  was 
brought  on  said  note  by  Halsey,  Utter  dr*  Co.,  against  said   Watts, 


Buckner,  12  Smed.  &  M.  (Miss.)  73; 
Allen  V.  Wood,  3  Ired.  Eq.  (38  N.  Car.) 
386.  In  actions  at  law.  on  the  other 
hand,  the  contrary  is  the  rule.  Buck- 
ner V,  Stewart,  34  Ala.  529;  Taylor  v. 
Reynolds,  53  Cal.  686;  Sloo  v.  Pool,  15 
111.  47;  Croy  V.  Clark,  74  Ind.  597; 
Goodall  V.  Wentworth,  20  Me.  322;  Od- 
lin  V.  Greenleaf,  3  N.  H.  270.  And  with 
the  modern  fusion  of  law  and  equity 
courts  it  has  become  less  and  less  com- 
mon to  regard  such  an  allegation  as 
essential.  But  if  it  appeared  from  the 
declaration  that  plaintiff  had  failed  to 
enforoe  an  indemnity  held  by  him  a 
demurrer  by  his  co-surety  would  be 
sustained.  Frink  v.  Peabody,  26  111. 
App.  390. 

Demand  on  Co-Burety.  —  Plaintiff  need 
not  allege  a  previous  demand  upon  the 
defendant  for  his  share  of  the  debt. 
Collins  V.  Boyd,  14  Ala.  505;  Taylor  v. 
Reynold,  53  Cal.  686;  Chaffee  v.  Jones, 
19  Pick.  (Mass.)  260.  Contra,  Carpen- 
ter V.  Kelly,  9  Ohio  106. 

Sureties'  Liability  the  Same.  —  A  com- 
plaint for  contribution  is  not  neces- 
sarily defective  because  it  shows  that 
the  sureties  were  not  bound  by  the 
same  instrument,  provided  it  shows 
that   they    were    bound    for   the   same 

Principal  and  the  same  undertaking, 
reckinridge  v.  Taylor.  5  Dana  (Ky.) 
iio;  Craig  v.  Ankeney,  4  Gill  (Md.) 
225;  Chaffee  v.  Jones,  19  Pick.  (Mass.) 


260;  Armitage  v.  Pulver,  37  N.  Y. 
494;  Butler  V.  Birkey,  13  Ohio  St.  514. 
For  the  form  of  a  complaint  in  such  a 
case  see  Stevens  v.  Tucker,  87  Ind.  109. 
On  the  other  hand,  if  the  complaint 
shows  that  the  plaintiff  and  defendant 
were  bound  for  different  debts,  or  dif- 
ferent portions  of  the  same  debt,  it  is 
of  course  bad.  Hammock  v.  Baker,  3 
Bush  (Ky.)  2o3;  Chapman  v.  Garber, 
45  Neb.  16;  Manner  v.  Douglass,  4 
Jones  Eq.  (57  N.  Car.)  262;  Rosenbaum 
V.  Goodman,  78  Va.  121.  And  it  must 
not  appear  from  the  complaint  that  by 
the  terms  of  the  contract  each  surety 
was  to  be  liable  only  for  a  certain  sum. 
In  such  cases  there  is  no  right  to  con- 
tribution. Paul  V.  Berry,  78  111.  158; 
Bagott  V.  Mullen,  32  Ind.  332;  Barry 
V.  Ransom,  12  N.  Y.  462;  Moore  v. 
Isley,  2  Dev.  «&  B.  Eq.  (22  N.  Car.)  372. 

If  it  appears  from  the  complaint  that 
while  plaintiff  is  the  surety  of  the  princi- 
pal, defendant  is  the  surety  of  a  surety, 
or  vice  versa,  a  demurrer  will  be  sus- 
tained. Both  must  stand  in  the  same 
relation  to  the  principal.  Bulkeley  v. 
House,  62  Conn.  459;  Robertson  v. 
Deatherage,  82  111.  511;  Price  v.  Ed- 
wards, II  Mo.  524;  Adams  v.  Flanna- 
gan,  36  Vt.  400. 

1.  The  words  and  figures  enclosed  by 
[  ]  will  not  be  found  in  the  reported 
case,  but  have  been  added  to  render  the 
form  complete. 


443 


Volume  5. 


6339.  CONTRIBUTION.  6339. 

plaintiff  and  defendant;  tliat  said  suit  was  discontinued  as  to  said 
defendant,  because  the  writ  was  not  served  on  him;  that  the  judg- 
ment hereinabove  mentioned  was  rendered  against  said  Watts.,  who 
then  was,  and  continued  thereafter  to  be  insolvent,  and  died  insol- 
vent, without  having  paid  said  judgment,  which  was  also  rendered 
against  plaintiff,  which  said  judgment  being  unreversed  and  in  full 
force,  plaintiff  has  paid  and  satisfied  the  same  by  the  payment  of  one 
thousand  doWars,  to  wit,  on  the  lot/i  April.,  i85^.  By  means  whereof, 
the  defendant  became  liable  to  pay  and  reimburse  to  plaintiff  the 
said  sum  ol  five  hundred  doWdLVs,  with  interest  thereon,  being  one-half 
of  the  said  sum  of  one  thousand  dollars.  The  plaintiff  claims  of  the 
defendant,  also,  the  further  sum  oi  five  hundred  do\\a.rs,  for  moneys 
paid,  laid  out  and  expended,  by  said  plaintiff,  for  said  defendant,  at 
his  request,  to  wit,  on  the  15th  April.,  i8J>^.  Said  sums  of  money, 
with  the  interest  thereon,  remain  unpaid. 

\William  Boyles,  Attorney  for  Plaintiff. j^ 


Form  No.  6339.* 

Pulaski  Circuit  Court. 

John  Doe.,  plaintiff,      ) 

against  >•  Complaint  at  Law. 

Richard  Roe.,  defendant.  ) 

The  plaintiff,  John  Doe,  states  that  on  the  first  day  of  July,  iS93, 
one  John  Fen  made  and  delivered  to  one  Richard  Den,  his  promissory 
note,  dated  on  said  day  and  due  twelve  months  after  date,  payable  to 
said  Richard  Den  or  order,  for  five  hundred  dollars  (a  copy  of  said 
note  is  herewith  filed,  marked  Exhibit  A,  and  made  a  part  hereof); 
that  the  plaintiff  and  the  defendant  signed  said  note  as  sureties  to 
the  sdad  Richard  Den  ov  his  assigns;  that  when  said  note  became 
due  saidy^//«  Fen  was  wholly  insolvent  and  unable  to  pay  the  same, 
and  has  ever  since  remained  so  insolvent  and  unable  to  pay;  that 
thereupon,  being  threatened  with  suit  upon  said  undertaking  of  sure- 
tyship on  said  note,  the  plaintiff  was  compelled  to  pay  to  said  Richard 
Den  on  the  eighth  day  of  July,  1894,  the  sum  of  five  hundred  dol- 
lars thereon;  that  immediately  thereafter  the  plaintiff  demanded  of 
the  defendant  that  he  pay  to  the  plaintiff  two  hundred  and  fifty 
dollars  as  his  share  of  said  compulsory  payment,  but  the  defendant 
refused  and  has  ever  since  refused. 

Wherefore  the  plaintiff  demands  judgment  against  the  defend- 
ant for  two  hundred  and  fifty  dollars,  with  interest  thereon  from  the 
eighth  day  oi  July,  iW^.,  and  all  other  proper  relief. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

(  Verification.  )3 

1.  The  words  enclosed  by  [  ]  will  not  p.  1639,  No.  80.  See  also  Sand.  &  H. 
be  found  in  the  reported  case,  but  have     Dig.  Ark.  (1894),  §  7314. 

been  added   to  render  the   form   com-  3.  For  the  form  of  verification    in  a 

plete.  particular  jurisdiction  consult  the  title 

2.  This   form   is  adapted    from    the  Verifications. 
form  in  Sand.  &  H.   Dig.  Ark.  (1894), 

444  Volume  5. 


6340.  CONTRIBUTION.  6341. 

Form  No.  6340.' 

Thomas  New  comb  )  ^  jr  n.  <>       r^^ 
aeainst  t  Suffolk,  Sup.  Ct. 

Nehemiah  Gibson.)  Plaintiff's  Declaration. 

And  the  plaintiff  says  that  A.  S.  Smailey  made  a  promissory  note  for 
twenty-five  /lundred  doWars  to  the  order  oiA.  S.  I^oss,^Sind  the  plaintiff 
and  the  defendant  signed  the  note  as  joint  sureties  for  Smailey;  that, 
in  May,  i897,  said  I^oss  recovered  judgment  against  said  Smailey,  the 
plaintiff  and  the  defendant,  in  the  sum  oi  two  thousand  eight  hundred  and 
eighteen doWdivs  and  thirty-eight  cents;  that  said  sum  with  the  expenses 
accruing  upon  the  execution  thereon,  amounting  in  all  to  the  sum  of 
ttvo  thousand  eight  hundred  and  eighty-four  dollars  and  seventy-seven  cents, 
was  collected  of  the  plaintiff;  that  the  note  was  secured  in  part  by  cer- 
tain bonds,  which  the  plaintiff  received  upon  the  settlement  of  the 
execution, and  sold  iox  five  hundred  doWdiX?,',  and  the  defendant  owes 
the  plaintiff  eleven  hundred  ninety-t7oo  dollars  and  thirty-eight  cents. 

Thomas  Newcomb, 

By  C.  S.  Griffin,  his  Attorney. 

Form  No.  6341. 

(Precedent  in  Adams  v.  Hayes,  120  N.  Car.  383.)' 

\North  Carolina,         )  In  the  Superior  Court, 
Wautauga  County.  \  Spring  Term,  \W6. 

Zack  Adams,  plaintiff, 
against 
/.  Z.  Hayes,  Wm.  T.  Hayes,  E.  H.  V  Complaint. ]' 
Dougherty  and  E.  E.  Lovill,  de- 
fendants, j 

The  plaintiff  in  the  above  entitled  action,  complaining  of  the 
defendants,  alleges: 

1.  That  on  the  30th  day  of  May,  1888,  F.  M.  Hodges ^nd  R.  A.  Adams, 
doing  business  under  the  style  and  firm  oi  Hodges  &*  Adams,  executed 
their  promissory  note  toZ.  A.  Green  for  the  sum  of  %600,  withy.  Z. 
Hodges,  Wm.  T.  Hayes,  E.  H.  Dougherty,  E.  E.  Lovill  and  this  plaintiff 
as  sureties  on  said  above  note. 

2.  The  principals  in  above  mentioned  note  having  failed  to  pay 
off  and  satisfy  same  at  maturity,  suit  was  accordingly  entered  at 
Spring  Term,  i891,  in  the  Superior  Court  of  Wautauga  county  by  Z,  A. 
Greene,  plaintiff,  for  balance  due  on  said  note,  to  wit,  $5^6  principal, 
and  $^<J. 5-2  interest,  together  with  $77.^^  cost  of  action,  making  a  total 
amount  of  %560.92;  and  dX  June  Term  of  Wautauga  County  Superior 
Court  judgment  was  obtained  against  iT.  M.  Hodges  and  R.  A.  Adams, 

1.  This  is  substantially  the  plaintiff's  perfectly  alleged,  the  cause  of  action 
declaration  in  the  case  of  Newcomb  v.  will  be  construed,  on  demurrer,  as 
Gibson,  127  Mass.  396.  equitable  rather  than  legal. 

2.  Judgment  sustaining  a  demurrer  3.  The  words  and  figures  enclosed  by 
to  this  complaint  was  overruled  by  the  [  ]  will  not  be  found  in  the  reported 
supreme  court,  which  held  that  though  case,  but  have  been  added  to  render  the 
a  proper  relief  was  not  asked  and  the  form  complete. 

insolvency   of  the   principals   was  im- 

445  Volume  5. 


6342.  CONTRIBUTION.  -0342. 

principals,  and  J.  L.  Hayes,  Wm.  T.  Hayes,  E.  H.  Dougherty,  E.  F. 
Lovi 1 1  dSidi  this  plaintiff,  Z.  Adams,  as  sureties,  when  this  plaintiff,  Z. 
Adams,  one  of  said  sureties,  paid  off  and  satisfied  said  judgment  in  full. 

3.  That$^56>.^5  was  paid  by  plaintiff  as  receiver  of  Hodges  &>  Adams^ 
out  of  funds  of  sdad  Hodges  or'  Adams,  which  came  into  his  hands  as 
said  receiver,  leaving  a  balance  oi^Jf.00.32,  which  amount  this  plaintiff 
was  forced  to  pay  under  said  execution  out  of  his  own  private  funds. 

4.  That  repeated  demands  have  been  made  upon  /.  L.  Hayes,  Wm. 
T.  Hayes,  E.  H.  Dougherty  and  E.  F.  Loinll,  the  co-sureties,  for  their 
contributive  shares,  which  they  have  neglected  and  refused,  and  still 
neglect  and  refuse,  to  pay,  to  the  great  damage  of  this  plaintiff. 

Wherefore,  plaintiff  prays  that  he  may  have  judgment  against  the 
defendants  in  this  action  for  the  sum  of  $-?^0.^-^,  with  interest  from 
October  10,  i895,  which  said  amount  is  four-fifths  of  amount  paid  by 
this  plaintiff,  and  for  costs  of  this  action,  and  for  such  other  and  fur- 
ther relief  as  the  court  may  adjudge. 

[yeremiah  Mason,  Plaintiff's  Attorney.]^ 

2.  Where  Some  Co-sureties  are  Insolvent.^ 

Form  No.  6342. 

(Commencing  as  in  Form  No.  6332,  and  continuing  doT.vn  to  *. ) 

1.  On  May  1st,  iS79,  Samuel  Short,  Leonard  A.  Ford,  William  West, 
and  the  plaintiff  and  defendant,  made  and  delivered  to  Henry  Rogers 
their  promissory  note,  of  which  a  copy  is  hereto  annexed,  marked 
Exhibit  A. 

2.  At  the  maturity  of  said  note  the  plaintiff  was  compelled  to  pay 
and  did  pay  all  of  said  note. 

3.  That  at  the  time  plaintiff  paid  said  note,  the  principal  and  all 
the  other  parties  thereto  except  the  plaintiff  and  defendant  then 
were  and  ever  since  have  been  wholly  insolvent,  and  had  not  then 
nor  have  they  since  had  any  property  subject  to  execution. 

4.  That  defendant  was  and  is  bound  to  pay  %1,000  to  plaintiff  as 
his  contributive  share. 

5.  On  November  1st,  iS79,  plaintiff  demanded  of  defendant  said 
sum  or  contributive  share  of  $1,000,  which  he  refused  to  pay,  and 
no  part  thereof  has  been  repaid  to  plaintiff. 

The  plaintiff  claims  $1,200  damages.  (Concluding  as  in  Form 
No.  6332.) 

1.  The  words  enclosed  by  [  ]  will  not  are  apportioned  among  the  rest.  And 
be  found  in  the  reported  case,  but  have  it  is  the  same  where  one  or  more  of  the 
been  added  to  render  the  form  com-  sureties  have  left  the  state.  Security 
plete.  F.  &  M.  Ins.  Co.  v.  St.   Paul  Ins.  Co., 

2.  If  the  plaintiff,  who  has  paid  the  50  Conn.  233;  Stothoff  v.  Dunham,  ig 
entire  debt,  allege  in  his  complaint  N.  J.  L.  181;  Young  v.  Lyons.  8  Gill 
that  one  or  more  of  his  co-sureties  are  (Md.)  r66;  Dodd  v.  Winn,  27  Mo.  501; 
insolvent,  he  may  demand  from  the  Liddell  v.  Wiswell,  59  Vt.  365.  This 
defendant  the  proportion  he  would  was  always  the  rule  in  equity,  and  it 
have  been  bound  to  pay,  had  there  has  now  been  generally  adopted  by 
been    no   sureties   but    those   who   re-  courts  of  law. 

main  solvent;  that  is,  where  some  of  For  the  substance  of  other  bills,  pe- 
the  sureties  are  insolvent,  their  shares     titions,     declarations     or     complaints, 

446  Volume  5. 


6343. 


CON  TRIE  UTION. 


6343. 


3.  Where  Contribution  is  Sought  from  Estate  of 
Deceased  Co-surety.^ 

Form  No.  6343.' 
The  State  of  Ohio,       )  t    ^.u    /-      ^    x  r-  m 

Hamilton  County/ ss.  [  ^"  ^*^^  ^^"'"^  'f  ^^^'^^^^  ^^'9'' 
John  Doe,  plaintiff, 
against 
Richard  Roe,  as  administrator  \  Petition. 
of  the  estate  of  Samuel  Short, 
deceased,  defendant. 
John  Doe,  the  plaintiff  above  named,  complains  of  Richard  Roe,  as 
administrator  of  the  estate  of  Samuel  Short,  deceased,  defendant,  and 
says: 

I.  That  on  the  twenty- fourth  day  oi  January,  iS89,  said  Samuel 
Short  died  intestate,  said  Short  being  at  the  time  of  his  death  a  resi- 
dent of  the  county  of  Hamilton,  in  the  state  of  Ohio. 

II.  That  on  the  twenty-sixth  day  of  April,  iSS9,  letters  of  adminis- 
tration on  the  estate  of  said  Samuel  Short,  deceased,  were  duly  issued 
to  Richard  Roe,  the  said  defendant,  by  the  Probate  Court  of  said 
Hamilton  county,  in  the  state  of  Ohio,  appointing  said  Richard  Roe 
sole  administrator  of  said  estate;  and  that  thereupon  Richard  Roe, 
the  said  defendant,  duly  qualified  as  such  administrator,  and  imme- 
diately entered  upon  the  discharge  of  his  duties  as  such  administra- 
tor, and  ever  since  that  time  has  been  and  now  is  acting  as  such 
administrator. 

III.  That  plaintiff  and  defendant's  intestate  were  sureties  on  the 
oflEicial  bond  of  one  Leonard  A.  Ford,  treasurer  of  the  school  district 


where  some  of  the  sureties  are  in- 
solvent, see  Burroughs  v.  Lott,  19  Cal. 
125:  Newton  v.  Pence,  lo  Ind.  App. 
672;  Lytic  V.  Pope,  11  B.  Mon.  (Ky.) 
299;  Young  V.  Lyons,  8  Gill  (Md.)  162; 
Smith  t/.  Mason,  44  Neb.  610. 

1.  Contribution  from  Heirs  of  Deceased 
Co-surety.  —  For  forms  of  declarations, 
complaints  and  petitions  against  the 
heirs  of  deceased  co-sureties  see  Gib- 
son V.  Mitchell,  16  Fla.  519;  Stevens  v. 
Tucker,  87  Ind.  log;  Camp  v.  Bost- 
wick,  20  Ohio  Stat.  337;  Glasscock  v. 
Hamilton,  62  Tex.  143. 

In  the  second  of  these  cases  the  com- 
plaint alleged  that  the  administrator 
of  the  deceased  co-surety  had  fully  set- 
tled the  estate,  having  fully  adminis- 
tered upon  the  same,  and  was  duly 
and  fully  discharged  by  the  court  of 
proper  jurisdiction,  and  that  the  sur- 
plus of  the  estate  had  been  distributed 
among  the  heirs.  The  defendant  de- 
murred to  this  complaint  on  the  ground 
that  it  does  not  sufficiently  show  that 
the  estate  of   the   deceased   had   been 


finally  settled  before  the  commence- 
ment of  the  action.  The  court  over- 
ruled the  demurrer,  saying  that  though 
the  word  "final"  was  not  used  in  de- 
scribing it,  the  settlement  stated  con- 
stituted a  final  settlement. 

For  substance  of  other  declarations, 
complaints,  etc.,  against  representa- 
tives of  a  deceased  co-surety  see  the 
following  cases:  Conover  v.  Hill,  76 
111.  342;  Zollickoffer  v.  Seth,  44  Md. 
359;  Bachelder  v.  Fiske,  17  Mass.  464; 
Van  Demark  v.  Van  Demark,  13  How. 
Pr.  (N.  Y.  Supreme  Ct.)  372;  Bradley 
V.  Burwell,  3  Den.  (N.  Y.)  61;  McKenna 
V.  George,  2  Rich.  Eq.  (S.  Car.)  15. 

2.  This  form  is  based  on  the  facts  in 
Koelsch  V.  Mixer,  52  Ohio  St.  207,  in 
which  case  defendant  answered  that  he 
was  sued  with  the  plaintiff  in  the  suit 
on  the  alleged  bond  and  by  the  verdict 
of  a  jury  was  relieved  from  liability 
thereon.  It  was  held  that  the  judg- 
ment rendered  on  the  verdict  was  not 
conclusive  between  the  parties  in  the 
suit  for  contribution. 


447 


Volume  5. 


6344.  CONTRIBUTION.  6344. 

of  Readings  Hamilton  county,  Ohio,  a  copy  of  which  bond  is  hereto 
annexed,  marked  Exhibit  A. 

IV.  That  at  the  April  term,  i8(?P,  of  the  Court  of  Common  Pleas  of 
Hamilton  county,  Ohio,  the  state  of  Ohio,  for  the  use  of  the  village 
school  district  of  Reading,  Ohio,  recovered  a  judgment,  by  the  con- 
sideration of  said  court,  against  this  plaintiff  in  the  sum  of  one  thou- 
sand eight  hundred  and  ninety  dollars  Sixxd  fifty-eight  cents  damages  and 
t/iirty-three  dollars  Zind  forty-seven  cents  costs  of  said  case. 

V.  That  on  the  twenty-fifth  day  oi  July,  i889,  plaintiff  was  com- 
pelled to  pay,  and  did  pay,  in  satisfaction  of  the  said  judgment,  the 
sum  of  one  thousand  seven  hundred  and  tivcnty -five  dollars  and  five  cents. 

VI.  That  the  amount  due  plaintiff  from  defendant,  as  administra- 
tor aforesaid,  as  the  contributive  portion  of  said  Samuel  Short, 
deceased,  is  eight  hundred  and  sixty-two  dollars  ^nA  fifty -two  cents. 

VII.  That  on  the  twenty-fifth  day  of  July,  iS89,  said  claim  was 
presented  to  and  rejected  by  said  administrator. 

Wherefore  said  plaintiff  prays  judgment  against  said  defendant  for 
said  sum  of  eight  hundred  and  sixty-two  dollars  and  fifty-two  cents, 
with  interest  from  the  twenty-fifth  day  oi  July,  iS89. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

III.  BETWEEN  PARTNERS.! 

Form  No.  6344 

The  State  of  South  Carolina,  )  ^       *.    ^  /^  ^         t>j 
r,       ^       r  c^j.     J     >.  Y  Court  of  Common  Pleas. 

County  of  Spartanburg.  j  -^ 

John  Doe,  plaintiff,      \ 

against  >• 

Richard  Roe,  defendant.  ) 

The  complaint  of  the  above  named  plaintiff  respectfully  shows  to 
this  court,  that  on  Xh^  fourteenth  day  of  October,  i889,  and  for  a  long 
time  prior  thereto,  the  plaintiff  and  defendant  were  partners,  carry- 
ing on  business  as  manufacturers  of  boots  and  shoes  in  Spartanburg, 
in  said  county,  under  the  firm  name  of  Doe  &*  Roe;  that  on  said  four- 
teenth day  of  October,  iS97,  said  partnership  was,  by  mutual  consent, 
dissolved,  the  accounts  of  the  firm  with  the  partners  settled,  all 
claims  collected,  and  all  debts  paid,^  except  one  owing  to  Samuel 

1.  For  a  collection  of  authorities  on  and  Exoneration,?  Am.  &  Eng.Encycl. 

the    subject    of   contribution    between  of  L.  (2d  ed.).  p.  360  <■/  sf^. 
partners  see  3  Am.   and  Eng.  Dec.  in        2.  Affairs  of  Partnership  "Wound  Up. — 

Eq.,  192-197.     From  these  cases  it  ap-  It  must   appear   that    the   partnership 

pears  that  the  substantial   allegations  affairs    have    been    settled    before   an 

of  the  ordinary   bill   or  complaint  are  action  for   contribution  can    be   main- 

these:  That  the  plaintiff  and  defendant  tained.     Johnson  v.  Peck,  58  Ark.  580; 

were  partners;  that  the  firm  was  wound  Mussetter  v.  Timmerman,  11  Colo.  201. 

up  and  its  accounts  with  the  partners  Crossley  v.  Taylor,  83  Ind.  337;  Wend- 

settled;  that  plaintiff  was  compelled  to  landt  v.  Sohre,  37  Minn.  162;  Harris  ». 

pay  a  firm  debt  out  of  his  own  property;  Harris,  39  N.  H.  45;  Brown  v.  Agnew, 

that  defendant   should   contribute   his  6  W.  &  S.  (Pa.)238;  Kelly  z/.  Kauffman, 

proportional  part.  i3  Pa.  St.  351;   3  Am.  &  Eng.  Dec.  in 

See  generally  as  to  contribution  be-  Eq.,  pp.  192-197. 
tween  partners  the  title  Contribution 

448  Volume  5. 


6346.  CONTRIBUTION.  6345. 

Short,  of  Pittsburg,  in  the  state  of  Pennsylvania;  that  in  the  settlement 
of  said  accounts  the  debt  so  due  to  the  said  Samuel  Short  was  over- 
looked, and  that  on  the  third  day  of  December,  i897,  and  after  the  said 
settlement  of  the  partnership  affairs,  the  said  Samuel  Short  recovered 
judgment  against  this  plaintiff  and  defendant  for  the  sum  of  ^ve 
hundred  dollars  in  the  Court  of  Common  P leas  of  Spartanburg  county, 
in  the  state  of  South  Carolina;  and  that  on  said  day  the  plaintiff,  in 
.order  to  prevent  the  levying  of  an  execution  on  his  personal  property, 
paid  the  said  judgment;  that  defendant  thereby  became  liable  to  pay 
to  plaintiff  one- half  of  said  sum,  to  wit,  the  sum  of  two  hundred  and 
fifty  dollars,  but  though  often  requested  so  to  pay,  he  has  hitherto 
failed  and  absolutely  refused  to  make  such  payment. 

Wherefore,  plaintiff  demands  judgment  against  defendant  for  said 
sum  of  ttvo  hundred  and  fifty  dollars,  with  interest  from  the  third  day 
of  December,  iS97. 

Jeremiah  Mason,  Plaintiff's  Attorney 

IV.  BETWEEN  STOCKHOLDERS.! 

Form  No.  6345. 

Supreme  Court,  Kings  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

Plaintiff  complains  and  says: 

I.  That  The  Ontario  Wine  and  Fruit  Company  was  a  corporation 
duly  organized  under  the  laws  of  the  state  of  New  York,  and  having 
its  usual  place  of  business  in  Oswego  in  said  state. 

II.  That  the  plaintiff  and  defendant  were  stockholders  in  said  cor- 
poration, the  defendant  owning  ten  shares  of  its  corporate  stock  out 
of  one  hundred  and  forty-one  issued. 

III.  That  the  corporation  distilled  five  thousand  five  hundred  gallons 
of  brandy  and  spirit,  upon  which  it  was  liable  to  pay  to  the  govern- 
ment of  the  United  States  a  tax  of  one  dollar  per  gallon,  and  which 
amounted  in  the  aggregate  to  five  thousand  five  hundred  dollars. 

IV.  That  by  chapter  74  of  the  Laws  of  1894,  stockholders  in  such 
corporations  are  jointly  and  severally  liable  for  such  tax. 

V.  That  in  \W6,  the  United  States  of  America  brought  an  action 
in  the  Circuit  Court  of  the  United  States,  second  circuit,  against  the 
plaintiff  and  others,  all  stockholders  in  said  corporation,  to  recover 
from  them  said  tax,^ 

1.  For  statutes  relating  to  contribu-        2.  Inasmuch  as  the  plaintiff  and  the 

tion  among  stockholders  see  as  follows:  defendant,  with  all  other  stockholders, 

lojva  — Code  (1897),  §  1633.  are   jointly    liable    by  statute   for    the 

Maine.  —  Rev.  Stat.  (1883),  c.  47,^47.  tax,  it  is  immaterial  that  the  complaint 

Michigan.  —  How.  Anno.  Stat.  (18S2),  does  not  allege  that  the  defendant  in 

§§  4878,  4898.  this  action  was  one  of  the  defendants 

Minnesota.  —  Stat.  (1894),  §  2822.  in    the    suit    brought   by    the   United 

New  Hampshire.  —  Pub.  Stat.  (1891),  States,  for  the   defendant's  obligation 

c.  150,  §  21.  to  contribute  to  the  amount  paid  by  the 

Rhode  Island.  —  Gen.   Laws  (1896),  c.  plaintiff  as  a  result  of  the  suit  arises, 

180,  §  23.  not  from  the  judgment  but  from  the 
5  E.  of  F.  P. —  29.                          449  Volume  5. 


6346. 


CON  TRIE  UTION. 


6346. 


VI.  That  the  said  corporation  was  insolvent  at  the  time  and  had 
no  property,  and  it  has  continued  insolvent.^ 

VII.  That  the  Ujiited  States  recovered  judgment  for  two  thousand 
two  hundred  dollars,  and  on  January  second,  iS97,  an  execution  issued 
on  said  judgment,  and  was  about  to  be  levied  on  the  plaintiff's  prop- 
erty, when  he  paid  the  said  judgment  and  costs  in  full,  amounting  to 
two  thousand  three  hundred  and  forty  dollars.^ 

VIII.  That  thereupon,  the  defendant  became  liable  to  contribute 
and  pay  to  the  plaintiff  ten  one  hundred  forty-firsts  of  the  expense  to 
which  the  plaintiff  was  put  as  a  result  of  said  suit  by  the  United  States. 

The  plaintiff  prays  judgment  for  one  hundred  and  seventeen  dollars. 

Jeremiah  Mason^  Plaintiff's  Attorney. 
{Verification.^ 

V.  Between  Joint  Owners  of  Property.* 


1.  Where  Plaintiff  has  Repaired  Property. 

Form  No.  6346. 

{Title  of  court  and  cause  as  in  Form  No.  63Jf5.') 
Plaintiff  complains  and  says: 

I.  That  the  plaintiff  and  the  defendant  are  tenants  in  common  of 
the  house  numbered  97  on  West  Forty-fourth  street  in  New  York  City. 


common  liability  under  the  statute. 
The  judgment  is  of  importance  merely 
as  showing  that  the  plaintiff  paid  the 
tax  under  compulsion.  Richter  z*.  Hen- 
ningsan,  110  Cal.  530;  Wolters  v.  Hen- 
ningsan,  114  Cal.  433. 

1.  Plaintiff  is  not  entitled  to  contribu- 
tion if  it  appears  that  all  the  property 
of  the  corporation  which  was  bound  to 
reimburse  him  has  not  been  first  ap- 
plied and  exhausted.  Gray  v.  Coffin, 
9  Cush.  (Mass.)  192. 

2.  Payment  Involuntary.  —  It  must  not 
appear  in  the  bill  that  the  payment  by 
the  plaintiff  was  voluntary.  Andrews 
V.  Callender,  13  Pick.  (Mass.)  484;  Cary 
V.  Holmes,  2  Allen  (Mass.)  498. 

3.  For  the  form  of  verification  in  a 
particular  jurisdiction  consult  the  title 
Verifications. 

4.  Contribution  Between  Ship-owners. — 
Where  one  joint  owner  of  a  ship,  who 
has  paid  for  necessary  repairs,  seeks 
contribution  from  his  co-owners,  he 
must  declare  on  a  contract,  express  or 
implied,  for  in  the  absence  of  any  agree- 
ment sanctioning  the  repairs  no  right 
of  contribution  exists.  Curling  7/.  Rob- 
ertson, 7  M.  &  G.  336,  49  E.  C.  L.  335; 
Brodie  v.  Howard,  17  C.  B.  loq,  84  E. 
C.  L,  109;  Hardy  v.  Sproule,  31  Me.  71; 
Pentz  V.  Clarke,  41  Md.  327;  Stedman 
V.  Feidler,  20  N.  Y.  437.     See,  however. 


Sheehan  v.   Dalrymple,   19  Mich.   239; 
Story  on  Partnership,  p  423. 

Contribution  to  Cost  of  Party- Walls. — 
For  forms  of  declarations  by  an  owner 
of  land  who  has  built  a  party-wall  at  his 
own  expense  between  his  land  and  his 
neighbor's,  and  seeks  contribution  from 
the  neighbor,  see  2  Chit.  PI.  (6th  Am. 
ed.),  pp.  247-251;  Campbell  v.  Mesier,  4 
Johns.  Ch.  (N.  Y.)  334.  In  this  case 
the  substantial  allegations  of  the  bill 
were:  that  plaintiff  and  defendant  were 
owners  of  adjoining  houses;  that  plain- 
tiff, being  desirous  of  tearing  down  his 
old  house  and  building  a  new  one,  was 
informed  by  experts  that  the  party-wall 
which  separated  his  house  from  his  • 
neighbor's  would  have  to  be  rebuilt, 
owing  to  its  ruinous  condition;  that  the 
neighbor,  upon  request,  refused  to  join 
in  expense  of  building  a  new  wall  and 
forbade  plaintiff's  proceeding  with  the 
work;  that  plaintiff,  nevertheless,  had 
the  wall  rebuilt;  that  the  neighbor  de- 
vised his  house  and  land  to  the  defend- 
ant, who  made  use  of  the  wall.  The 
bill  prayed  that  the  defendant  be  com- 
pelled to  contribute  one-half  of  the 
expense  of  building  the  wall. 

For  a  full  collection  of  authorities  on 
the  subject  of  contribution  in  connec- 
tion with  party-walls  see  3  Am.  &  Eng. 
Dec.  in  Eq.,  pp.  189-192. 


450 


Volume  5. 


6347. 


CON  TRIE  UTION. 


6347. 


II.  That  on  the  fourth  day  of  June,  iS97,  a  portion  of  the  roof  of  said 
house  was  struck  by  lightning  and  broken  through,  leaving  the  room 
below  exposed  to  the  air,  and  making  immediate  repairs  essential  to 
the  preser\'ation  of  a  large  amount  of  property. ^ 

III.  That  the  plaintiff  requested  the  defendant  to  join  him  in  order- 
ing repairs,^  and  to  pay  one-half  of  the  expense  thereof,  which  the 
defendant  absolutely  refused  to  do. 

IV.  That  thereupon  the  plaintiff  had  the  roof  repaired  and  paid  the 
entire  expense  thereof,  amounting  to  six  hundred  dollars.  One-half 
of  which  sum  defendant  was  bound  to  contribute,  but  which  he  has 
refused  absolutely  to  pay. 

Wherefore  plaintiff  prays  judgment  for  three  hundred  dollars  with 
interest  from  they^rx/day  ol  July,  iS97,  and  his  costs  and  disburse- 
ments in  this  action. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

{Verification^ 

Form  No.  6347. 
(Precedent  in  Baltimore,  etc.,  R.  Co.  v.  Walker,  45  Ohio  St.  578.)* 

^AV.^^f  County^tr  [  ^"  ^^^  ^^"^^  'f  ^^^^^^  ^^''''- 
Goshorn  A.  Jones  as  receiver  of  the  property  ^ 
of  the  Cleveland,  Mt.  Vernon  cr'  Delaware 
Railroad  Company,  plaintiff,  1  p    •  • 

against  '"    ^  '  ^^^' 

The  Baltimore  &•  Ohio  Railroad  Company, 
defendant. 
The  plaintiff,  as  receiver  of  the   property  of  the  Cleveland,   Mt. 


1.  TTimecessary  ImproTements.  —  If  the 
complaint  sets  forth  mere  improve- 
ments, made  by  plaintiff  on  the  joint 
estate,  as  distinguished  from  necessary 
repairs,  and  contains  no  allegation  of 
assent  by  his  co-tenant,  it  states  no 
cause  of  action.  Bazemore  v.  Davis, 
55  Ga.  504;  Elrod  v.  Keller,  89  Ind. 
382;  Stevens  v.  Thompson,  17  N.  H. 
103;  Beaty  v.  Bordwell,  gi  Pa.  St.  438. 

2.  Bequest  to  Defendant  to  Contribute.  — 
As  a  general  rule,  one  tenant  in  com- 
mon can  compel  his  co-tenant  to  con- 
tribute to  the  expense  of  necessary 
repairs  to  a  house  or  mill  belonging  to 
them.  Gardner  v.  Dicdrichs,  41  111. 
158;  Alexander  v.  Ellison,  79  Ky.  148; 
Denman  v.  Prince,  40  Barb.  (N.  Y.)2i3. 
But  he  must  allege  in  his  complaint 
that  he  requested  his  co-tenant  to  join 
in  the  repairs  and  the  latter  refused. 
Mumford  v  Brown,  6  Co\v.(N.  Y.)475; 
Taylor  v.  Baldwin,  10  Barb.  (N.  Y.) 
582;  Stevens  v.  Thompson,  17  N.  H. 
103;  Kidder  v.  Rixford,  16  Vi.  172. 
But  allegations  that  the  co-tenant  was 


absent  and  that  the  repairs  were  bene- 
ficial will  supply  the  place  of  an  allega- 
tion of  request,  for  assent  will  be 
presumed.  Haven  v.  Mehlgarten,  19 
111.  91.  See  also  Chapin  v.  Smith,  52 
Conn.  260. 

In  Massachusetts,  if  the  co-tenant  does 
not  consent  to  the  repairs,  no  action  at 
law  can  be  maintained.  Colvert  v. 
Aldrich,  99  Mass.  74. 

3.  For  the  form  of  verification  in  a 
particular  jurisdiction  consult  the  title 
Verifications. 

4.  While  this  action  was  pending  in 
the  court  of  common  pleas,  Jones 
ceased  to  be  receiver,  and  one  George 
D.  Walker,  who  had  been  appointed 
his  successor,  was,  by  the  consent  of 
the  parties  and  by  order  of  the  court, 
subscribed  as  party  plaintiff.  There- 
upon the  cause  was  submitted  to  the 
court  and  judgment  rendered  for  the 
plaintiff.  Motions  for  a  new  trial  and  bill 
of  exceptions  were  overruled  and  the 
judgment  was  affirmed  by  the  supreme 
court,  the  court  saying  that  "  the  right 


451 


Volume  5. 


6347.  CONTRIBUTION,  6347. 

Vernon  b'  Delaivare  Railroad  Company,  alleges:]^  that  the  said  Clei'eland, 
Mt.  Vernon  &"  Delaware  Railroad  Company  is  a  corporation,  created 
and  organized  under  the  laws  of  the  state  of  Ohio,  and  under  said 
corporate  name,  built,  constructed  and  operated  a  line  of  road 
extending  from  Hudson  to  Columbus,  Ohio,  by  the  way  of  Akron  and 
Mt.  Vernon,  Ohio,  and  have  conducted  and  operated  said  railroad 
under  said  corporate  name  from  about  the  1st  of  July,  \Z13,  up  to  the 
1st  day  of  December,  a.  d.  i8^i:  That  on  or  about  the  21th  day  of 
September,  i880,  the  said  Goshorn  A.  Jones  was  by  the  judge  of  the 
court  of  common  pleas  \i\t\n\\  and  for  the  county  of  Summit,  Ohio,  in  a 
certain  proceeding  therein  pending  against  said  Cle^'eland,  Mt.  Vernon 
&>•  Delaware  Railroad  Company  appointed  receiver  of  said  railroad  com- 
pany, which  position  he  accepted  by  executing  a  bond  to  the  accept- 
ance of  said  court,  and  entered  upon  the  discharge  of  his  duties  as 
receiver;  that  he  is  still  acting  in  the  said  capacity.  The  said  plain- 
tiff says  that  the  said  defendant,  'Oat.  Baltimore  &•  Ohio  Railroad  Com- 
pany, is  a  foreign  corporation,  created  and  organized  under  the  laws 
of  the  state  of  Maryland,  and  is  now  and  was  on  the  1st  day  oi  July, 
A.  D.  1 875,  the  lessee  of  the  Sandusky,  Mansfield  ^^  Newark  Railroad 
Company,  a  corporation  created  and  organized  under  the  laws  of  the 
state  of  Ohio,  and  as  such  lessee  the  said  defendant  manages,  con- 
trols and  operates  the  line  and  track  of  said  Sandusky,  Mansfield  &* 
Newark  Railroad  Company  from  the  city  of  Sandusky  to  the  city  of 
Netoark,  in  said  state  of  Ohio,  and  through  the  county  of  Knox,  and 
a  portion  of  the  city  of  Mt.  Vernon,  and  the  said  defendant,  the 
Baltimore  &"  Ohio  Railroad  Company,  runs  its  passenger  and  freight 
trains,  locomotive  engines  and  cars,  and  machinery,  over  and  upon 
said  track  and  line  of  road.  The  said  plaintiff  says  that  the  railroad 
track  of  said  Cleveland,  Mt.  Vernon  c5r»  Delatvare  Railroad  Company, 
and  the  railroad  track  of  the  Baltitnore  6^  Ohio  Railroad  Company  on 
the  Lake  Erie  division,  a  short  distance  southwest  of  Mt.  Vernon, 
Ohio,  cross  each  other  at  a  common  grade;  that  the  crossing  at  said 
point  was  made  and  constructed  by  the  said  Cleveland,  Mt.  Vernon  6^ 
Delaware  Railroad  Company  about  the  1st  day  oi  July,  A.  D.  i875, 
that  all  the  material  used  and  labor  performed  in  constructing  said 
crossing,  including  the  materials  used  and  labor  performed  in  build- 
ing the  watchman's  house,  were  all  furnished,  supplied  and  paid  for 
by  the  said  Cleveland,  Mt.  Vernon  6^  Delaware  Railroad  Company, 
that  said  crossing  and  house  for  a  watchman  was  done,  and  con- 
structed for  the  common  interest,  benefit  and  necessity  of  the  Cleve- 
land, Mt.  Vernon  &'  Delaware  Railroad  Company,  and  the  defendant, 
the  Baltimore  &'  Ohio  Railroad  Company;  the  plaintiff  says  that  from 
the  1st  day  of  October,  i873,  the  said  Cleveland,  Mt.  Vernon  dr'  Dela- 
ware Railroad  Company  have  kept,  maintained  and  paid  the  salary  of 
a  competent  watchman,  who  performed  all  the  necessary  work,  labor 
and  services  required  by  the  laws  of  Ohio;  that  the  services  of  said 

of  the  plaintiff  to  recover  upon  the  case         l.The  words  enclosed  by  [  ]  will  not 
made   in    his  petition    is   sustained  by     be  found  in  the  reported  case,  but  have 
sound  reason  and  sanctioned  by  author-     been  added  to  render  the  form  com- 
ity; the   judgment    recovered    by   him     plete. 
should  be  affirmed." 

452  Volume  5. 


6348.  CONTRIBUTION.  6348. 

watchman  were  for  the  mutual  benefit  of  the  said  plaintiff  and  the 
said  defendant,  and  such  as  was  and  is  required  by  the  laws  of  Ohio, 
to  be  kept  and  maintained  at  railroad  crossings.  The  said  plaintiff 
says  that  the  amount  of  expenditure  necessary  to  be  made  for  the 
construction  and  repairs,  and  maintenance  of  said  railroad  crossing, 
with  the  amount  paid  the  watchman,  and  for  erection  of  the  watch- 
man's house,  from  said  1st  day  of  October,  iS73y  to  the  1st  day  of 
December,  a.  d.  \Z81,  amounts,  with  interest,  to  the  sum  of  ($5,759.05) 
five  thousand  seven  hundred  and  eighty-nine  dollars  and  five  cents,  an 
itemized  statement  of  said  account  of  expenditures  is  hereto  at- 
tached, marked  Exhibit  "  A  "  and  made  a  part  of  this  petition. 

The  said  plaintiff  further  says,  that  said  defendant  became  and  was 
liable  to  bear  and  pay  one-half  of  said  expense,  and  the  said  defend-, 
ant  is  now  indebted  to  the  said  plaintiff  in  the  sum  oi  {$2,^94^.52)  two 
thousand  eight  hundred  and  ninety-four  dollars  z.x\d  fifty-two  cents,  the 
one-half  of  the  said  sum  of  $5,789.05,  the  amount  paid  out  and 
expended  by  the  said  plaintiff  as  aforesaid,  with  interest  included. 

The  plaintiff  has  frequently  requested  and  demanded  of  the  said 
defendant  payment  of  the  said  sum  due  the  plaintiff,  which  the  said 
defendant  has  refused  to  pay,  or  any  part  thereof. 

There  is  now  due  from  said  defendant  to  said  plaintiff  the  said 
sum  of  t7O0  thousand  eight  hundred  and  ninety-four  dollars  and  fifty-two 
cents,  for  which  sum  of  ^,891^.52  t\i^  plaintiff  prays  judgment  against 
said  defendant  with  interest  from  the  1st  day  of  Deceinber,  iS81. 

[H.  H.  Greer,  Plaintiff's  Attorney.]^^ 


2.  Where  Plaintiff  has  Removed  an  Incumbrance  from 

Property.2 

Form  No.  6  3  4  8 .» 

State  of  Illinois,  )  In  the  Circuit  Court  of  Adams  County,  June 

Adams  County.    \  ®^'  Term,  a.  d.  x%82. 

To  the  Hon.  J.  H.  Williams,  Judge  of  said  Court.      In  Chancery 
Sitting. 
Your   orators,  Matilda  A.  C.  Griffith  and  A.  G.  Griffith,  her  hus- 
band, of  the  town  of  Ashland,  in  said  county  and  state,  respectfully 

1.  The  words  enclosed  by  []  will  not  the  court  remarked  that  the  right  to 
be  found  in  the  reported  case,  but  have  contribution  does  not  arise  out  of  any 
been  added  to  render  the  form  com-  contract  or  agreement  of  the  co-tenants 
plete.  to   indemnify   each   other,  but   on    the 

2.  For  the  material  allegations  of  bills  principle  of  equity,  that  where  two  or 
for  contribution  toward  taxes,  filed  by  more  persons  are  subject  to  a  common 
ownersof  a  certain  estate  in  land  against  burden  it  shall  be  borne  according  to 
owners  of  another  estate  in  the  same  their  several  interests.  See  also  Wilton 
land,  see  Williams  v.  Craig,  2  Edw.  Ch.  v.  Tazwell,  86  111.  29;  Weare  v.  Van 
(N.  Y.)  297;  Dikeman  v.  Dikeman,  11  Meter,  42  Iowa  128:  Van  Brunt  f.  Gor- 
Paige  (N.  Y.)  484.  don, 53  Minn.  227;  Davidson  v.  Wallace, 

8.  This  bill  is  based  on  the  facts  in  53  Miss.  475;  Allen  v.  Poole,  54  Miss, 
the  case  of  Griffith  v.  Robinson,  14  111.  323;  Watson's  Appeal,  90  Pa.  St.  426; 
App.  377,  in  which  cas«,  in  reversing  a  In  re  Devlin's  estate,  17  Pa.  Co.  Ct. 
decree  overruling  a  demurrer  to  the  bill.     Rep.  433;  Wilmot  v.  Lathrop,  67  Vt.  671. 

453  Volume  5. 


6348.  CONTRIBUTION.  6348. 

show  unto  your  honor  that  your  orator  Matilda  A.  C.  Griffith  and 
Martha  M.  Robinson  are  sisters,  and  children  of  one  /esse  Robinson, 
late  of  said  county,  deceased,  who  died  on  the  sixth  day  of  Jtdy,  i879, 
intestate,  leaving  him  surviving  his  said  two  daughters;  that  the  said 
two  daughters  were  the  only  heirs  of  their  deceased  father,  and  as  such 
were  the  owners  in  fee  as  tenants  in  common  of  certain  lands  owned 
by  him  in  fee,  at  the  time  of  his  death  as  aforesaid,  and  lying  in  said 
county  of  Adams;  that  on  t\iQ.  fifth  day  of  September,  i87P,  letters  of 
administration  were  granted  on  the  estate  of  said  intestate  by  the 
County  Court  of  Adams  county  to  Samuel  Short,  who  duly  qualified  as 
such  administrator,  and  immediately  entered  upon  the  discharge  of 
his  duties  as  such  administrator;  that  claims  in  favor  of  certain  cred- 
.  itors  were  presented  and  allowed  against  the  administrator  by  said 
court,  to  the  amount  of  one  thousand  dollars;  that  the  personal  estate 
was  declared  insolvent,  and  that  a  petition  for  leave  to  sell  the  real 
estate  to  pay  said  allowance  was  duly  presented  to  said  County  Court 
by  the  administrator,  to  which  your  orator,  Matilda  A.  C.  Griffith  and 
the  said  Martha  M.  Robinson  were  made  defendants,  and  duly  served 
with  process,  and  that  at  the  April  term,  i2>82,  an  order  of  said  court 
was  made  and  entered  of  record,  ordering  the  said  administrator  to 
sell  said  lands  to  pay  said  allowances  and  all  costs  and  charges  of 
said  sale  or  so  much  as  was  necessary  for  that  purpose;  that  there- 
upon, on  the  first  day  oi  June,  i883,  to  save  said  real  estate  from  sale 
under  said  order  and  to  preserve  the  same  for  said  heirs,  your  orator 
Matilda  A.  C.  Griffith  and  the  said  Martha  M.  Robinson,  and  to  pre- 
vent further  costs  and  expenses,  your  orator,  Matilda  A.  C.  Griffith 
paid  off  the  said  allowances  and  costs  in  full,  but  that  the  sdixd  Martha 
M.  Robinson  failed  and  refused  to  pay  any  part  of  the  same,  and  her 
pro  rata  share  was  paid  by  your  orator,  Matilda  A.  C.  Griffith,  the  said 
share  amounting  to  the  sum  oi  five  hundred  dollars;  that  said  Martha 
M.  Robinson,  although  requested,  has  refused  to  repay  the  same  or 
any  part  thereof.  To  the  end  therefore  that  the  said  Martha  M. 
Robinson  may  be  required  to  repay  the  share  paid  for  her  to  relieve 
the  land  from  the  common  charge,  and  that  the  same  be  made  a  lien 
upon  her  interest  in  the  said  land,  and  that  your  orator  may  have  such 
other  or  further  relief  in  the  premises  as  the  nature  of  the  case  may 
require  and  to  your  honor  shall  seem  meet  according  to  equity  and 
good  conscience,  may  it  please  your  honor  to  grant  unto  your  orators 
the  writ  of  summons  in  chancery,  directed  to  the  sheriff  of  said 
county  of  Adams  commanding  him  that  he  summon  the  defendant, 
Martha  M.  Robinson,  thereby  commanding  her  to  be  and  appear 
before  this  honorable  court  on  the  first  day  of  the  next  term  thereof, 
to  be  held  at  the  court-house  in  Quincy,  in  said  county,  on  the  first  day 
of  October,  a.  d.  \882,  within  and  for  the  county  of  Adams  aforesaid, 
then  and  there  to  stand  to  and  perform  and  abide  such  further  order, 
direction  and  decree  therein  as  to  your  honor  shall  seem  meet,  accord- 
ing to  equity  and  good  conscience. 
And  your  orators  will  ever  pray,  etc. 

Matilda  A.  C  Griffith. 

A.  G.  Griffith. 
Walter  Scoggin^  Solicitor. 

454  Volume  5. 


6349. 


CON  TRIE  UTION. 


6349. 


VI.  BETWEEN  CO-DEVISEES  AND  CO-LEGATEES.i 


Form  No.* 63 4 9.* 

Commonwealth  of  Massachusetts^  Superior  Court. 

Bristol,  ss.  In  Equity. 

John  Doe,  plaintiif,        ) 

against  >•    Bill  of  Complaint. 

Richard  Roe^  defendant.  ) 

I.  John  Tomlinson  died  testate  on  the  eleventh  day  of  May,  iS85, 
leaving  a  widow,  Rachel  Tomlinson,  but  no  children.  His  will  was 
duly  proved  and  allowed  in  the  Probate  Court  for  the  county  of 
Bristol,  on  the  fifteenth  day  oi  May,  i885. 

II.  By  said  will  said  John  Tomlinson  gave  a  house  on  Market 
street  in  Fall  River  to  the  said  Rachel;  to  the  plaintiff  his  mill  stock 
and  bank  stock ;  and  to  the  defendant  a  house  on  Whipple  street  in 
said  Fall  River. 

III.  The  widow  duly  waived  the  provisions  of  the  will,  and  on  her 
petition  the  portion  of  the  real  estate  and  personal  estate  to  which 
she  was  by  law  entitled,  to  w'\t,five  thousand  doWdiT^  in  real  estate  in 
fee,  and  five  thousand  dollars  in  personal  estate  absolutely,  was  duly  set 


1.  For  statutes  relaling  to  the  subject 
of  contribution  between  co-legatees 
and  co-devisees  see  as  follows: 

Arizona. — Rev.  Stat.  (1887),  §  1171. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§§  7440,  7441. 

Connecticut.  —  Gen.  Stat.  (1888),  §  556. 

Florida.  —  Rev.  Stat.  (1892),  i^  1935. 

Indiana. —  Horner's  Stat.  (1896),  § 
2568. 

Maine.  — K^v.  Stat.  (1883),  c.  74,  §  6. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
127,  §§  27-33. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§§  5818,  5819,  5945. 

Minnesota. — Stat.  (1894),  §§  5920. 
5928,  5932. 

Montana.  —  Code  Civ.  Proc.  (1895), 
§  2696. 

New  Jersey.  —  Gen.    Stat.    (1895),    p. 

2373.  §  78. 

North  Carolina.  —  Code  (1883),  §  1534. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
5973  et  seq. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
203,  ^^  25  et  seq. 

Tennessee.  —  Code  (1896),  §  3998. 

For  substance  of  sufficient  complaint 
see  Cook  v.  Cook,  92  Ind.  398. 

Contribntion  between  Heirs.  —  Allega- 
tions that  the  plaintiff  is  an  heir  who 
has  been  compelled  to  pay  the  debts  of 
his  ancestor,  after  a  deficiency  in  the 
personal  assets,  and  that  the  defend- 
ants are  co-heirs,  are  as  effective  in 
making  out  a  case  for  contribution  as 


are  allegations  that  the  parties  are  co- 
devisees  or  co-legatees.  Taylor  v. 
Taylor,  8  B.  Mon.  (Ky.)  419;  Clowes  v. 
Dickenson,  5  Johns.  Ch.  (N.  Y.)  235. 

2.  This  form  is  adapted  from  the  bill 
of  complaint  which  was  filed  in  the 
case  of  Tomlinson  v.  Bury,  145  Mass. 
346.  The  allegation  that  the  plaintiff 
was  forced  to  give  up  the  property  be- 
queathed to  him  on  account  of  the 
wife's  claim  for  dower  (or  the  property 
to  which  the  statute  entitles  her)  is,  of 
course,  equivalent  to  an  allegation  that 
the  plaintiff  was  forced  to  abandon  his 
legacy  to  the  claims  of  creditors.  And 
an  allegation  to  the  effect  that  the  estate 
of  the  testator  was  insufficient  to  pay 
the  debts  without  calling  upon  the 
devisees  or  legatees  is  essential,  and 
without  it  the  complaint  is  demur- 
rable. A  legatee  who  has  been  com- 
pelled to  pay  the  whole  of  a  legacy  is 
entitled  to  no  contribution  from  his  co- 
legatees  if  the  estate  was  solvent  inde- 
pendent of  their  legacies,  or  if  it  became 
insolvent  by  devastavit  of  the  execu- 
tor.    Peeples  v,  Horton,  39  Miss.  406. 

If,  in  a  bill  by  a  legatee  against  a  co- 
legatee  for  contribution,  it  appears  that 
the  executor  had  sufficient  funds  origi- 
nally to  pay  all  the  legacies,  but  that 
after  paying  some  of  them  he  squan- 
dered the  residue  of  the  fund  and  is 
unable  to  pay  the  plaintiff's  legacy,  the 
bill  states  no  cause  of  action.  Sims 
V.  Sims,  10  N.  J.  Eq.  158. 


465 


Volume  5. 


6350. 


CON  TRIE  UTION. 


6350. 


off  and  assigned  to  her.  The  real  estate  so  set  off  and  assigned  was 
the  said  house  on  Market  street,  which  was  devised  to  her  and  was 
appraised  at  Jive  thousand  dollars,  and  the  personal  estate  assigned 
included  all  that  bequeathed  to  the  plaintiff.  The  house  devised  to 
the  defendant  is  the  only  property  not  so  assigned  to  the  widow. 

IV.  The  result  of  the  waiving  of  the  provisions  of  the  will  by  the 
said  Rachel  Tomlinson  and  the  assignment  to  her  under  her  petition 
of  the  aforesaid  property,  has  been  to  deprive  the  plaintiff  of  all  the 
mill  stocks  and  bank  stocks  bequeathed  to  him.  Wherefore  he 
has  a  right  to  contribution  from  the  defendant  out  of  the  real  estate 
devised  to  him;  he  has  requested  the  defendant  to  make  such  con- 
tribution, but  he  has  refused  and  still  refuses  so  to  contribute. 

The  plaintiff  prays: 

That  the  defendant  may  be  ordered  to  contribute  of  the  property 
devised  to  him  such  sum  to  the  plaintiff  as  may  be  found  just  and 
reasonable  toward  the  legacy  of  which  the  plaintiff  has  been 
deprived  as  aforesaid.  John  Doe, 

by  Jeremiah  Mason,  his  Attorney. 


VII.  BETWEEN  JOINT  TORT-FEASORS.^ 


Form  No.  6350.^ 


1.  Contribution  between  Joint  Tort- 
feasors.—  As  a  general  rule,  where  one 
of  two  joint  tort-feasors  has  been  com- 
pelled to  pay  the  whole  damage,  he  can 
recover  no  contribution  from  the  other. 
There  are,  however,  exceptions  to  this 
rule.  Where  the  party  who  seeks  con- 
tribution acted  honestly,  neither  know- 
ing nor  being  presumed  to  know  that 
the  act  was  unlawful,  he  may  recover 
contribution,  and  perhaps  full  indem- 
nity. And  where  a  joint  liability  is 
imposed  on  several  by  inference  of  law, 
as  where  the  joint  owners  of  a  stage 
coach  are  held  liable  for  the  negligence 
of  a  driver,  the  one  who  is  compelled  to 
pay  the  entire  damage  can  recover  con- 
tribution from  his  fellows.  3  Am.  and 
Eng.  Dec.  in  Eq.,  pp.  198-206;  Bailey  v. 
Bussing,  28  Conn.  455;  Nickerson  v. 
Wheeler,  118  Mass.  295;  Ankeny 
V.  Moffett,  37  Minn.  109;  Skerner  v. 
Spear,  92  N.  Car.  148;  Horbach  v.  Elder, 
18  Pa.  St.  33. 

If  the  bill,  declaration,  petition  or 
complaint  shows  on  its  face  that  the 
plaintiff  acted  either  wilfully,  knowing 
the  illegal  nature  of  his  action,  or  neg- 
ligently, when  he  should  have  known 
its  nature,  a  demurrer  will  be  sustained 
in  nearly  all  jurisdictions. 

There  are,  however,  a  few  states  in 
which  statutes  have  been  passed  giving 
wrong-doers  in  general  a  right  of  con- 


tribution like  thatof  other  joint  obligors. 
See  3  Ga.  Code  (1895),  ^  3916;  Burns' 
Anno.  Prac.  Code  Mo.  (1896),  §  1179; 
W.  Va.  Code  (1891),  p.  861. 

In  Nickerson  v.  Wheeler,  118  Mass. 
2^5,  the  bill  alleged  in  substance  that 
on  a  certain  date  one  Thayer  recovered 
judgment  against  the  New  England 
Lithographic  Steam  Printing  Co.  for 
$3,290.92  damage  and  $33.89  costs; 
that  execution  issued  against  the  com- 
pany, but  was  returned  in  no  part 
satisfied;  that  thereupon  Thayer  filed 
his  bill  against  the  present  plaintiff, 
who  was  treasurer  of  said  corporation, 
and  all  the  directors;  that  said  officers 
had  not  deposited  any  certificate  with 
city  clerk  of  Boston  as  required  by 
statute,  wherefore  they  were  jointly 
and  severally  liable  for  the  debts  of  the 
corporation;  that  said  Thayer  recovered 
judgment  against  them  and  execution 
was  levied  wholly  on  the  property  of 
the  plaintiff,  whereby  he  was  compelled 
to  pay  $3,924.39;  that  the  other  defend- 
ants in  that  suit,  who  were  the  de- 
fendants to  this  bill,  were  liable  to 
contribute.  The  court  granted  the  re- 
lief prayed  for.  But  see  contra 
Andrews  v.  Murray,  33  Barb.  (N.  Y.) 
354;  Baird  v.  Midvale  Steel  Works,  12 
Phila.  (Pa.)  255. 

2.  Missouri.  —  Burns'  Anno.  Prac. 
Code  (1896),  §  1 1 79. 


456 


Volume  5. 


6350.  CONTRIBUTION.  6350. 

John  Doe,  plaintiff,        \  In    the   Circuit  Court  of  Barton  County, 
against  \      State. of  Missouri. 

Richard  Roe,  defendant.  )  To  the  September  Term,  \W1. 

Plaintiff  states  that  on  Xht.  first  day  ol  May,  iB97,  Samuel  Short 
recovered  a  judgment  in  the  Circuit  Court  of  Barton  county,  in  the 
state  of  Missouri,  against  the  plaintiff  and  the  defendant,  Richard 
Roe,  for  the  sum  of  one  thousand  dollars  damages,  for  the  wrongful 
conversion  by  plaintiff  and  defendant  of  one  McCormick  reaper  and 
binder  and  traction  engine,  and  costs  of  suit,  amounting  to  one  hun- 
dred doWaxs;  that  on  ^t  first  day  of  June,  iS97,  plaintiff,  in  order  to 
avoid  levy  and  execution  on  his  property,  paid  off  the  said  judgment 
and  costs  in  full  with  his  own  means,  and  on  said  first  day  oi  June 
demanded  of  defendant,  Richard  Roe,  his  contributive  portion  of  said 
sum,  amouciting  to  five  hundred  and  fifty  dollars,  but  defendant  refused 
to  pay  said  sum  or  any  part  thereof. 

Wherefore,  plaintiff  demands  judgment  against  defendant  for  said 
sum  oi  five  hundred  and  fifty  doWdits,  with  interest  from  the  first  day 
oi  June,  i897,  and  for  other  proper  relief. 

Jeremiah  Mason,  Attorney  for  Plaintiff. 
457  Volume  5. 


CONTRIBUTORY   NEGLIGENCE. 

By  Thomas  E.  O'Brien. 

I.  PLEA,  458. 
II.  ANSWER,  459. 

CROSS-REFERENCES.  . 

For  Forms  of  Answers  and  Fleas  setting  up  Matters  of  Defense  by  way 
of  Confession  and  Avoidance^  generally^  see  the  title  CONFES- 
SION AND  AVOIDANCE,  ante,  p.  ^  et  seq.,  and  the 
GENERAL  INDEX  to  this  work. 

For  matters  of  Procedure.,  see  5  Encyclopaedia  of  Pleading  and 
Practice,  p.  i  et  seq. 

I.  PLEA, 
f  Form  No.  6351  .* 

John  Doe      )  j^  Washington  County  Court, 
RrXlTLe.  \    ^^^^-^-  Term,  a.  d.  x8P7. 
And  the  said  defendant,  by  Daniel  Webster.,  his  attorney,  comes  and 

1.  Contributory    negligence    must    be  gence,  however,  is  sufficient.     Chicago, 

specially  pleaded  in  the  nature  of  a  con-  etc.,  R.  Co.  v.  Smith,  6  Ind.   App.  262. 

fession  and  avoidance.     McDonald  v.  But  when  the  facts  show  that  there  was 

Montgomery  St.   R.  Co.,  no  Ala.  161;  no  contributory  fault,  it   need   not  be 

Union  Pac.  R.  Co.  v.  Tracy,   19  Colo,  denied   in    the  complaint.     Cleveland, 

*  331.     See  also  the  title  Confession  and  etc.,  R.  Co.  v.  Keely,  138  Ind.  600. 

Avoidance,  ante,  vol.  5,  p.  37.  Maine.  —  Buzzell    v.    Laconia    Mfg. 

For  formal  parts  of  pleas  in  any  juris-  Co.,  48  Me.  113. 

diction   consult  the  title  Pleas.  Michigan.  —  Denman  z/.  Johnston,  85 

For  another  form  of  plea  setting  up  con-  Mich.  387. 

tributory    negligence    see    Form    No.  Rhode  Island.  —  Di  Marcho  v.  Build- 

4379,  supra.  ers'  Iron  Foundry,  18  R.  I.  514. 

The  replication  also  may  set  up  con-  Under   Statute.  —  In    Maryland,    in 

tributory  negligence  as  a  defense.    For  State  v.  Baltimore,  etc.,  R.  Co.,  77  Md. 

the  formal  parts  of  replications,  gen-  489,  it  was  held  that   under   the  code, 

erally,  see  the  title  Replications.  article   75,  section   23,    form    36,    it  is 

Negativing  by  Plaintiff —  Generally.  —  necessary   to   aver   in    the    declaration 

In  some  states  plaintiff  must  negative  that  the  person  injured  was   using  due 

contributory   negligence   in    his    com-  care  at  the  time  the  injury  was  inflicted, 

plaint  or  petition.  In  Massachusetts,  in  Fuller  v.  Boston, 

Illinois.  —  Foster   v.   Onderdonk,    54  etc.,  R.  Co.,  133  Mass.   491,    the  court 

111.  App.  254;  Calumet  Iron,  etc.,  Co.  v.  seems  to  hold  that  in  an  action  against 

Martin,  115  III.  358.  a  railroad  for  personal  injuries,   under 

Indiana.  —  Terre  Haute  St.  R.  Co.  z/.  the   statutes   (1874),    chapter    372,   sec- 

Tappenbeck,  9  Ind.  App.  422.     A  gen-  tion  164,  the  declaration  must  aver  that 

eral  allegation  of  freedom  from  negli-  at  the  time   the  injury  complained  of 

458  Volume  5. 


6352.  CONTRIBUTORY  NEGLIGENCE.  6352. 

defends  the  force  and  injury,  when,  etc.,  and  says  that  the  said  plain- 
tiff ought  not  to  have  or  maintain  his  aforesaid  action  thereof  against 
him  the  said  defendant,  because  he  says  that  before  and  at  the  time, 
when,  etc.,  the  said  defendant  was  driving  in  and  along  the  said  high- 
way, the  carriage  of  said  plaintiff  also  being  driven  along  said  highway 
and  in  the  opposite  direction  to  that  in  which  the  carriage  of  said 
defendant  was  being  driven;  yet  the  said  defendant  says  at  the  time 
when,  etc.,  that  the  carriage  of  the  said  plaintiff  was  driven  and 
managed  in  a  negligent,  improper  and  careless  manner  in  said  high- 
way, and  that  being  near  the  carriage  of  said  defendant  and  by 
reason  of  such  careless,  improper  and  negligent  management,  by 
accident  and  by  failure  to  use  due  and  proper  care  in  the  manage- 
ment thereof,  and  not  through  any  default  or  negligence  on  the  part 
of  said  defendant,  the  said  carriage  of  plaintiff  was  driven  upon  and 
against  the  carriage  of  defendant,  whereby  the  injuries  in  the  said 
declaration  mentioned  were  sustained  by  the  plaintiff.  Wherefore 
defendant  says  that  whatever  damage,  if  any,  happened  to  said  plain- 
tiff or  to  his  carriage  was  caused  by  said  accident,  and  not  by  any 
default  or  negligence  of  the  defendant;  which  are  the  same  supposed 
trespasses  in  the  said  declaration  mentioned.  And  this  the  said 
defendant  is  ready  to  verify;  wherefore,  he  prays  judgment,  if  the 
said  plaintiff  ought  to  have  or  maintain  his  aforesaid  action  thereof 
against  him,  and  foj  his  costs. 

II.  ANSWER. 

Form  No.  6352. 
(Precedent  in  Missouri  Pac.  R.  Co.  v.  Cornell,  30  Kan.  35.)* 

[State  of  Kansas^   \  In  the  District  Court  in  and  for  the  county 

Anderson  County.  \     '        and  state  aforesaid. 
S.  P.  Cornell,  plaintiff, 

against  1   . 

The  Missouri  Pacific  Railway 
Company,  defendant. 
The  defendant.  The  Missouri  Pacific  Railway  Company,  for  answer 
to  plaintiff's  petition,  denies  each,  every  and  all  the  allegations  in 
said  petition  contained. 

was  received  the  plaintiff  was  in  the  burgh,  etc.,  R.  Co.  v.  Burton,  139  Ind. 

exercise  of  due  care.  357. 

Injustices'  Courts. — This  rule  held  to        1.  The  court  held  in  this  case  that 

apply  in  justices'  courts.     Cincinnati,  upon  the  introduction  of  evidence  tend- 

etc,  R.  Co.  V.  Stanley.  4  Ind.  App.  364.  ing  to  prove  the   facts  alleged   in  the 

NegUt^ence  0/ third  persons  nee^Anothc  answer  a  question  of  contributory 
negatived,  except  in  cases  where  such  negligence  was  presented  and  that 
person  is  so  identified  with  or  under  the  the  trial  court  committed  error  in  re- 
control  or  direction  of  the  party  injured  fusing  instructions  directing  the  jury 
as  to  be  responsible  for  his  acts.  Nap-  to  consider  the  contributory  negligence 
panee  v.  Ruckman,  7  Ind.  App.  361.  of  the  plaintiff  below. 

An  executor  or  administrator,  in  an  ac-        For  other  forms  of  answers  setting  up 

tion  for  negligently  causing  the  death  contributory    negligence   as  a  defense 

of  decedent,  need  not  negative  contrib-  see  vol.  4.  Forms  Nos.  5054,  5055,  5056, 

utory    negligence   on    his  part.     Pitts-  5140  and  57i5;  also  see  Evans  v.  Lake 

459  Volume  5. 


6352. 


CONTRIBUTORY  NEGLIGENCE. 


6352. 


And  for  a  further  defense  to  said  petition  the  defendant  alleges]  ^ 
that  the  plaintiff  was  guilty  of  negligence  and  carelessness  con- 
tributing directly  to  the  injury  complained  of,  in  this,  to  wit:  that 
he  permitted  dead  and  dry  grass  and  other  combustible  material  to 
be  and  remain  in  his  orchard,  and  permitted  a  continuous  body  of 
dry  grass  to  extend  from  his  orchard  and  connect  with  the  adjacent 
prairie  and  with  the  right-of-way  of  defendant's  road;  and  that  he 
placed  and  caused  to  be  placed  around  his  apple  trees  large  quanti- 
ties of  dry  and  combustible  material,  and  carelessly  and  negligently 
so  permitted  it  to  remain;  and  carelessly  and  negligently  permitted 
fires  to  come  upon  his  premises;  and  thereby  the  injury  complained 
of  was  occasioned  without  the  fault  or  negligence  of  the  defendant. 
[  The  Missouri  Pacific  Railway  Company^  Defendant. 
By  W.  A.  Johnson^  Attorney. 

(  Verification?!^^ 


Erie,  etc.,  R.  Co.,  78  Fed.  Rep.  783; 
Freeman  v.  Engelmann  Transp.  Co.,  36 
Wis.  572.  In  the  Freeman  case  last  cited 
the  answer,  among  other  things,  alleged 
"  that  the  small  boats  were  launched, 
and  that  all  passengers  were  invited 
into  and  urged  to  take  them;  that  some 
passengers  refused  to  go  into  the  small 
boats  and  wantonly  and  recklessly 
stayed  upon  said  steamer  when  it  was 
evident  she  must  sink;  that  all  the  pas- 
sengers who  entered  the  small  boats 
were  saved  and  ultimately  reached  the 
land;  and  that  if  plaintiff's  intestate 
was  drowned  while  on  said  steamer  it 
was  because  of  his  own  carelessness 
and  recklessness  in  not  complying  with 
the  reasonable  and  proper  requests  of 
the  officers  and  crew  to  come  into  the 


small  boat,  and  in  his  reckless  and 
wanton  determination  to  remain  on 
board  of  a  sinking  ship."  It  was  held 
that  the  averment  set  up  in  the  answer 
constituted  a  proper  defense  of  con- 
tributory negligence. 

For  formal  parts  of  an  answer  in  any 
other  jurisdiction  consult  the  title  An- 
swers IN  Code  Pleading,  vol.  i,  p.  799. 

Beply  may  set  up  contributory  negli- 
gence as  a  defense.  For  the  formal 
parts  of  a  reply  in  any  jurisdiction  see 
the  title  Reply. 

1.  The  words  enclosed  by  [  ]  will  not 
be  found  in  the  reported  case,  but  have 
been  added  to  render  the  form  com- 
plete. 

2.  See  the  title  Verifications. 


460 


Volume  5. 


CONVERSION. 

Ste  the  title  TROVER  AND  CONVERSION. 


CONVICTS. 

By  Thomas  E.  O'Brien. 

I.  DISCHARGE  OF  POOR  CONVICTS,  461. 
1.  Application,  461. 
«.  Notice  to  District  Attorney,  462, 

3,  Mandate  for  Production  before  Commissioner,  462. 

4.  Oath  of  Convict  before  Commissioner,  463. 
6.    Certificate  of  Discharge,  463. 

II.  Certificate  of  vocation,  etc.,  of  convict,  463. 

III.  Oath  of  County  convict  of  inability  to  pay  fine,  464, 

IV.  Indictment  for  Cruel  and  Inhuman  treatment  of  Con- 

vict, 465. 

CROSS-REFERENCES. 

For  Form  of  Indictment  against  Convict  for  Setting  Fire  to  Peniten- 
tiary, see  the  title  ARSON,  vol.  2,  p.  213. 

For  Forms  of  Actions  on  Bonds  Gtven  upon  Hire  of  Convicts,  see  the 
title  BONDS,  ETC.  (Actions  on),  vol.  3,  p.  570  et  seq. 

See  also  the  title  ESCAPE,  and  the  GENERAL  INDEX  to  this  work, 

l.  Discharge  of  poor  Convicts.^ 
1.  Application. 

Form  No.  6353.* 

United  States  of  America,  ) 
District  of  Columbia.'^  \ 

1.  Discharge  of  poor  debtors  in  the  make  application  in  writing  for  dis- 
different  states,  for  forms  in  proceed-  charge  to  any  commissioner  of  the 
ings  relating  to,  consult  the  title  Poor  United  States  court  in  the  district 
Debtors.  where  he  is  imprisoned,  setting  forth 

2.  In  Federal  Courts.  —  When  a  poor  his  inability  to  pay  such  fine  or  fine 
convict  sentenced  by  any  court  of  the  and  costs.  U.  S,  Rev.  Stat.  (2d  ed. 
United  States  to  pay  a  fine  or  fine  and  1878),  §  1042;  D.  C.  Comp.  Stat.  (1894), 
costs,    whether    with    or    without   im-  c.  55,  §  165. 

prisonment,  has  been  confined  in  prison  3.  Statute  applies  to  the  District  of 
thirty  days  solely  for  the  nonpayment  Columbia,  so  held  in  Ex  p.  Norvell,  9 
of  such  fine  or  fine  and  costs,  he  may     Mackey  (D.  C.)  348. 

461  Volume  5. 


6354.  CONVICTS.  6355. 

United  States  \  Application  for  Discharge  from  Imprisonment  under 
against      >•      the  provisions  of  section   1042  of  the  Revised  Stat- 
John  Doe.    )      utes  of  the  United  States. 
To  James  Hallett,  a  Commissioner  of   the  United    States    for  said 
District : 
I  hereby  make  application  for  discharge  from  imprisonment  in  the 
District  jail,   under  the   provisions  of  section    1042  of  the  Revised 
Statutes  of  the  United  States;    and  in  support  thereof  state   that  I 
was  sentenced  to  pay  a  fine  of  five  hundred  dollars  and  costs  by  the 
Supreme   Court   of  the  District  of  Columbia;    that  I   have   been   im- 
prisoned for  thirty  days  solely  for  nonpayment  of  fine  and  costs,  and 
that  I  am  unable  to  pay  the  same. 

John  DoCy  Applicant. 
This  tenth  day  of  March,  iS98. 

2.  Notice  to  District  Attorney. 

Form  No.  6354.' 

(  Venue  and  title  of  cause  as  in  Form  No.  6353.') 
To  Jeremiah  Mason,  United    States  Attorney,  District  of  Columbia, 
Washington,  D.  C. : 

Notice  is  hereby  given  that  application  has  this  day  been  made 
heiove  James  Hallett,  a  commissioner  of  the  United  States  for  said 
District,  by  John  Doe,  for  a  discharge  from  imprisonment  in  the  jail 
of  said  District,  under  the  provisions  of  section  1042,  Revised  Statutes 
United  States,  and  that  a  hearing  will  be  had  upon  said  application 
on  the  eleventh  day  of  March,  i898,  at  ten  o'clock  in  the /icr^noon,  or 
as  soon  thereafter  as  the  case  can  be  heard. 

Oliver  Ellsworth,  Attorney  for  John  Doe. 

Dated  this  tenth  day  of  March,  \W8. 

3.  Mandate  for  Production  before  Commissioner. 

Form  No.  6355. 

United  States  of  America,  ) 
District  of  Columbia.  \ 

The  United  States  of  America,  to  the  Warden  of  the  District  Jail, 
Greeting: 

Whereas,  application  has  this  day  been  made  before  me,  James 
Hallett,  a  commissioner  of  the  United  States  for  said  District,  by 
John  Doe,  for  a  discharge  from  imprisonment  in  the  jail  of  said  Dis- 
trict, under  the  provisions  of  section  1042  of  the  Revised  Statutes  of 
the  United  States. 

This  is  therefore  to  command  you  to  produce  the  body  of  said 
John  Doe  before  said  commissioner  forthwith. 

To  the  marshal  of  said  District  to  execute, 

1.  Notice  muBt  be  given  to  the  district  the  matter.  U.  S.  Rev.  Stat.  (2d  ed. 
attorney  of  the  United  States,  who  may  1878), g  1042;  D,  of  C.Comp.  Stat.  (1894), 
appear,  offer  evidence  and  be  heard  in     c,  55,  §  163. 

463  Volume  5. 


6356.  CONVICTS.  6358. 

In  testimony  whereof,  I  hereunto  set  my  hand  at  my  office  in 
Washington^  in  said  District,  this  tenth  day  of  March,  iS98. 

■James  Hallett, 
(seal)  United  States  Commissioner  for  the  District  of  Columbia. 

4.  Oath  of  Convict  before  Commissioner. 

Form  No.  6356.* 

(  Venue  and  title  of  cause  as  in  Form  No.  6353. ) 
District  of  Columbia,  to  wit: 

I,  John  Doe,  do  solemnly  swear  that  I  have  not  any  property,  real 
or  personal,  to  the  amount  of  twenty  dollars,  except  such  as  is  by  law 
exempt  from  being  taken  on  civil  precept  for  debt  by  the  laws  of  the 
District  of  Columbia;  and  that  I  have  no  property  in  any  way  con- 
veyed or  concealed,  or  in  any  way  disposed  of,  for  my  future  use  or 
benefit.     So  help  me  God, 

John  Doe. 
Subscribed  and  sworn  to  before  me  this  tenth  day  of  March,  iS98, 

James  Hallett, 
United  States  Commissioner  for  the  District  of  Columbia. 

5.  Certificate  of  Discharge. 

Form  No.  6357.' 

{Venue  and  title  of  cause  as  in  Form  No.  6353). 

It  appearing  to  the  commissioner  thd^t  John  Doe,  the  above  named 
defendant,  has  been  imprisoned  in  the  jail  of  the  District  of  Columbia 
for  the  period  of  thirty  days,  solely  for  the  nonpayment  of  a  fine  and 
costs  adjudged  against  him  by  the  Supreme  Court  of  the  District  of 
Columbia,  and  that  he  is  unable  to  pay  the  same,  and  has  complied 
with  all  the  requirements  of  law. 

It  is  therefore  ordered  that  the  said  John  Doe  be  discharged  from 
further  imprisonment  and  go  hence  without  delay. 

James  Hallett, 
United  States  Commissioner  for  the  District  of  Columbia. 

This  eleventh  day  of  March,  \W8. 

II.  CERTIFICATE  OF  VOCATION,  ETC.,  OF  CONVICT. 
Form  No.  6358.* 

1.  Statute  prescribes  this  form  of  oath  in  a  state  prison,  before  passing  the 
as  the  one  to  be  administered.  U.  S.  sentence,  to  ascertain  by  examination 
Rev.  Stat.  (2d  ed.  1878),  §  1042;  D.  C.  of  such  convict  on  oath,  and,  in  addition 
Comp.  Stat.  (1S94.),  c.  55.  §  163.  to  such  oath,  by  such  other  evidence  as 

2.  A  certificate  of  discharge  shall  be  can  be  obtained,  the  business,  if  any, 
given  to  the  jailer  or  keeper  of  the  jail  in  which  such  convict  has  been  engaged 
by  the  commissioner.  U.  S.  Rev.  Stat,  prior  to  such  arrest  and  conviction, 
(2d  ed.  1878),  §  1042;  D.  C.  Comp.  Stat,  whether  such  convict  had  learned  and 
(1894),  c.  55,  ^  163.  practiced  any  mechanical  trade,   if  so 

8.  Minnesota.  —  It  shall  be  the  duty  the  nature  of  such  trade  and  length  of 
of  the  court  in  which  any  person  shall  time  that  same  has  been  followed,  and 
be  convicted  of  any  offense  punishable    the  clerk  of  the  court  shall  enter  the 

468  Volume  5. 


6359.  CONVICTS.  6369. 


State  of  Minnesota,    )  District  Court,  Fourth  Judicial  District. 

Connty  oi  Hennepin.  \      '    GenevdX  Terra,  December,  i897. 
No.  ii(9.    The  State  of  Minnesota      ) 

against  >•  Indictment  for  Burglary. 

Richard  Roe,  defendant.  ) 

I,  Calvin  Clark,  clerk  of  the  District  Court  in  and  for  the  county 
of  Hennepin,  state  of  Minnesota,  do  hereby  certify,  that  after  the 
above  named  defendant  Richard  Roe  had  been  convicted  in  said 
court  of  the  crime  of  burglary,  and  before  passing  sentence  upon 
him,  the  court  examined  the  said  defendant  under  oath,  and  took  the 
further  evidence  of  William  West  and  Thomas  Short  as  to  the  busi- 
ness in  which  said  defendant  had  been  engaged,  or  the  mechanical 
trade  which  he  had  learned  and  practiced  prior  to  his  arrest  and  con- 
viction; and  upon  such  evidence  the  court  ascertained  and  decided 
the  facts  to  be  that  the  above  named  defendant  is  by  trade  a  black- 
smith, and  that  for  the  five  years  next  previous  to  his  arrest  for  the 
crime  of  which  he  now  stands  convicted  he  practiced  said  trade  in 
the  city  of  St.  Paul  in  the  state  of  Minnesota. 

Witness  my  hand  and  the  seal  of  said  court  this  twenty -second  day 
of  December,  iS97. 

(seal)  Calvin  Clark,  Clerk. 


III.  OATH  OF  COUNTY  CONVICT  OF  INABILITY  TO  PAY  FINE. 

Form  No.  6359.' 

The  State  of  Texas,  ) 
County  of  Freestone.  \ 

Before  me,  the  undersigned  authority,  personally  appeared  yM« 
Doe,  who,  being  by  me  duly  sworn,  on  oath  says,  that  in  the  County 
Court  oi Freestone  county,  on  the  tenth  day  oi  February,  iS98,  he  was 
fined  the  sum  of  ninety-two  dollars;  and  affiant  further  says  that  he  is 
not  able  to  pay  said  fine  and  costs,  or  any  part  thereof;  and  failing  to 
pay  the  same  he  is  now  in  the  custody  of  the  sheriff  of  Freestone 
county,  and  that  he  makes  this  affidavit  that  he  may  be  hired  out 
under  the  law  governing  the  hiring  of  county  convicts. 

John  Doe. 

Subscribed  and  sworn  to  before  me  this  twenty-fifth  day  of  February^ 
i898. 

Edward  L.  Walker,  County  Judge. 

facts  as  ascertained  and  decided  by  the  art.  856,  providing  that  when  a  defend- 

court  on  the  minutes  thereof  and  shall  ant  is  convicted  of  a  misdemeanor  and 

deliver  a  certificate   fully   stating   the  his  punishment  is  assessed  at  a  pecu- 

facts  so  ascertained  to  the  sheriff  of  the  niary  fine,  if  he  make  oath  in  writing 

county,    who   shall   cause   same  to  be  that  he  is  unable  to  pay  the  fine  and 

delivered  to  the   warden  of  the   state  costs  adjudged  against  him,  he  may  be 

prison  at  the  same  time  that  such  con-  hired  out  to  manual  labor  or  be  put  to 

vict  is  committed  to  the  care  of  said  work  in    the  manual  labor  workhouse 

warden  pursuant  to  his  sentence.    Stat,  or  on  the  manual  labor  farm  or  public 

(1894),  §  7491.  improvements  of  the  county,  etc. 
1.   Texas.  —  Code  Crim.  Proc.  (1895), 

464  Volume  5. 


6360.  CONVICTS.  6360. 

IV.  INDICTMENT  FOR  CRUEL  AND  INHUMAN  TREATMENT  OF  CONVICT. 

Forjn  No.  6360.' 

In  the  Circuit  Court  for  the  J^^/r^  Judicial  Circuit  of  Florida. 
Suwannee  county,  November  term,  in    the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-seven. 

■'  ■     S       \  Indictment  for  Cruel  and  Inhuman  Treatment  of 
against  r      p       •  f 

Richard  Roe.     ) 

In  the  name  and  by  the  authority  of  the  state  of  Florida.,  the  grand 
jurors  of  the  state  of  Florida.,  impaneled  and  sworn  to  inquire  and 
true  presentment  make  in  and  for  the  body  of  the  county  of  Suwannee, 
upon  their  oaths  do  present  that  Richard  Roe.,  of  the  county  of  Suwan- 
nee and  state  of  Florida.,  on  the  first  day  of  February.,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-seven,  in  the  county  and 
state  aforesaid,  did  unlawfully,  feloniously,  cruelly  and  inhumanely 
treat  one  John  Doe,  then  and  there  being  a  prisoner,  duly  convicted, 
sentenced  and  committed  to  the  state  prison  for  a  term  of  years, 
according  to  the  laws  of  the  state  of  Florida,  and  contracted  for  as  pro- 
vided by  the  laws  of  the  state  of  Florida,  and  employed  under  said 
contract  by  him  the  said  Richard  Roe,  by  unlawfully,  knowingly,  wil- 
fully, cruelly,  inhumanely,  feloniously  and  without  good  cause  refusing 
and  neglecting  to  provide  him  the  said  John  Doe,  with  adequate  allow- 
ance of  proper  food  and  suitable  clothing,  by  reason  of  which  neglect 
and  refusal  he  the  said  John  Doe,  being  exposed  to  the  cold  and 
inclemency  of  the  weather,  did  suffer  greatly  and  his  health  and  life 
were  greatly  endangered;  against  the  peace  and  dignity  of  the  state  of 
Florida. 

Daniel  Webster,  State's  Attorney 
for  the  T'-^/Vd^ Judicial  Circuit  of  the  State  ol  Florida. 

1.  Florida.  —  Rev.  Stat.  (1892),  §  3076.  wise,    or  shall  wilfully  or  negligently 

If  any  contractor  or  guard,  or  any  agent  permit  any  prisoner  to  escape,  he  shall 

or  employee  of  such  contractor,  or  any  be   punished   by  imprisonment  in  the 

other  person,    shall   be   guilty   of   any  state  prison  not  exceeding  ten  years  or 

cruel  or  inhuman  treatment  to  any  pris-  by  fine  not  exceeding  five  thousand  dol- 

oner  contracted  for,  by  neglect  or  other-  lars. 

5  E,  of  F.  P.  —  30.                       465  Volume  5 


COPYRIGHT.^ 

By  Joseph  Creeden. 

I.  PROCEEDINGS  TO  PREVENT  INFRINGEMENT,  466. 

1.  Affidavit  in  Support  of  Motion  for  Preliminary  Injunction^  466. 
58.  Bill  to  Restrain  Infringement^  469. 

a.  Of  an  Article  in  an  Encyclopcedia,  469. 

b.  Of  a  Book,  477. 

c.  Of  a  Dramatic  Composition,  485. 

d.  Of  an  Engraving,  489. 

3,  Answer  Denying  Infringement,  492. 

4.  Replication,  496. 
6.  Decrees,  496. 

a.  For  Permanent  Injunction,  496. 

b.  For  Permanent  Injunction  and  Directing  Reference  to 

Master,  498. 
6.  Injunction,  499. 

II.  ACTION  FOR  STATUTORY  PENALTIES,  500. 

1.  On  Copies  of  Infringing  Photograph,  500. 

2.  For  Falsely  Imprinting  Notice,  502. 

III.  ACTION  FOR  VIOLATION  OF  COMMON-LAW  RIGHT  IN  UNPUB- 
USHED  MANUSCRIPT,  506. 

CROSS-REFERENCES. 

For  matters  of  Procedure,  see  the  title  COPYRIGHT,  5  Encyclo- 
PiEDiA  OF  Pleading  and  Practice,  p.  16, 

I.  PROCEEDINGS  TO  PREVENT  INFRINGEMENT. 

1.  AflBdavit  in  Support  of  Motion  for  Preliminary 
Injunction.2 

Form  No.  6361. 

(Precedent  in  Ladd  v.  Oxnard,  75  Fed.  Rep.  705.)' 

United  States  of  America,  District  of  Massachusetts. 

On  this  sixth  day  of  February,  a.  d.  \W6,  before   me   personally 

1.  Por  Btatates  relating  to  copyright  3.  It  was  held  in  this  case  that,  where 
see  U.  S.  Rev.  Stat.  (1878),  §^  4958-  a  clear  infringement  of  a  copyrighted 
4971;  U.  S.  Rev.  Stat.  (Supp.  1891),  p.  compilation  of  credit  ratings  and  the 
I5i  c.  301;  26  U.  S.  Stat,  at  Large,  p.  financial  standing  of  persons  engaged 
1 106,  c.  565.  in  a  particular  line  of  business  is  shown, 

2.  For  fomu  of  affidavits,  generally,  a  preliminary  injunction  will  only 
consult  the  title  Affidavits,  vol.  i,  p.  be  granted  in  the  event  of  the  failure 
548.  of  defendant  to  file  a  bond  in  a  specified 

466  Volume  5. 


6361.  COP  Y RIGHT.  6361. 

appeared  David  M.  Ladd,  who,  being  by  me  duly  sworn,  deposes  and 
says  that  he  is  one  of  the  complainants  in  the  above  entitled  action; 
that  he  has  during  the  past  seven  years  had  personal  supervision  and 
direction  of  the  compiling,  preparation,  revision  and  transcribing  of 
the  manuscript  copy  of  each  of  the  several  editions  of  the  "■United 
Mercantile  Agency  Credit  Ratings  for  the  Marble,  Granite  and  Stone 
Trade";  that  during  that  period  his  firm  has  continually  had  as  sub- 
scribers, with  one  or  two  exceptions,  all  the  leading  manufacturers, 
quarriers,  and  wholesalers  of  marble  and  granite  as  used  for  both 
monumental  and  building  purposes;  that  his  firm  and  its  representa- 
tives and  agents  have  repeatedly  consulted  said  subscribers  with  the 
aim  and  purpose  in  view  of  securing  items  of  experience  that  would 
be  of  assistance  in  the  revision  and  correction  of  said  several  editions 
of  said  Credit  Ratings,  and  that  from  personal  experience  he  has 
found  it  a  matter  of  impossibility  and  impracticability  to  secure 
from  said  individual  subscribers  or  members  of  the  wholesale  trade, 
information,  corrections,  or  changes  of  reliability  or  value  to  aid 
him  in  connection  with  the  revision  of  said  work,  except  as  may  have 
related  to  the  particular  customers  or  patrons  of  such  individuals  or 
concerns,  which  would  necessarily  and  naturally  be  of  limited  num- 
ber and  a  very  small  minority  of  all  the  firms  and  parties  engaged  in 
the  various  lines  in  the  several  states  as  included  in  said  work.  Said 
deponent  further  says  that  he  had  personal  charge  and  supervision 
of  the  first  edition  of  said  Credit  Ratings,  issued  \x\  June,  iS90,  and 
that  neither  the  compilation  of  that  nor  any  of  the  several  editions 
of  the  same  work  issued  since  that  date  have  been  or  were  compiled 
or  revised  from  town  or  city  directories  or  trade  lists,  but  that  the 
information  and  matter  contained  in  said  books  were  secured  through 
special  correspondents,  agents  and  representatives  in  all  sections  of 
the  United  States  and  Canada,  and  from  direct  correspondence  with 
the  retail  dealers  in  marble,  granite  dnd  stone  in  the  various  towns 
and  cities  of  the  entire  country;  that  the  original  answers  to  such 
direct  correspondence  with  dealers,  and  the  revised  lists  as  sent  in. 
annually  by  said  representatives,  agents  and  special  correspondents, 
are  now  on  file  in  the  office  of  said  complainants,  and,  in  conse- 
quence, that  if  any  instances  occur  where  errors  and  misprints  appear 
in  both  complainants'  and  respondents*  books  it  cannot  be  explained 
or  excused  on  the  ground  that  both  used  the  same  common  sources 
of  information,  unless  it  can  be  shown  that  complainants'  agents  and 
representatives  and  special  correspondents  also  acted  in  the  same 
capacity  for  said  respondents.  The  deponent  further  says  that  he 
has  made  a  careful  comparison  between  the  work  issued  by  his  firm 
in  June,  i894,  and  the  respondents'  book,  and  that  he  finds  that  cleri- 
cal errors  and  misspellings  of  his  own  making  from  the  printed  cards 
and  letter  headings,  and  pen  signatures  of  various  dealers,  are  repro- 

penal  sum,  conditioned  for  the  payment  obtain  much  circulation  to  the  preju- 

of    any    damages    ultimately   decreed  dice  of  complainant.     See  also  the  sub- 

against  him;  the  court  saying  that  pub-  stance  of  a  sufficient  affidavit  in  Thomas 

lications  of   this  character  depend  for  v.  Lennon,  14  Fed.  Rep.  850. 
acceptance   on   the   reputation   of    the         For   defendant's   affidavits   in  oppo- 

compilers  and  publishers,  so  that  de-  sition  to  the  motion  see   Ladd  v,  Ox- 

fendant's  book  would  presumably  not  nard,  75  Fed.  Rep.  719  ef  seq. 

467  Volume  5. 


6361.  COPYRIGHT.  6361. 

duced  in  said  respondents'  book  without  change;  that  the  names  of 
the  parties  who  were  never  engaged  in  the  marble,  granite  or  stone 
line,  but  whose  names  were  inserted  in  Credit  Ratings  as  detectives 
(or,  in  other  words,  for  the  purpose  of  enabling  said  complainants  to 
discover  infringements,  should  any  be  attempted),  are  also  reproduced 
in  the  book  of  said  respondents;  that  the  names  of  towns  correctly- 
inserted  in  every  standard  atlas  and  gazetteer,  but  misspelled  through 
error  by  said  complainants  in  their  books,  also  appear  with  like  mis- 
spelling in  the  book  of  said  respondents;  that  names  wrongfully 
classified  under  towns  of  the  same  name  in  different  states  also 
appear  reproduced  without  correction  in  said  respondents'  book, 
some  of  which  are  shown  in  the  lists  or  tables  herewith  appearing, 
and  further  shown  by  the  several  letters  and  communications  on  filt 
herewith,  marked  Exhibits  Al  to  Z,  inclusive,  and  numbers  1  to  15^ 
inclusive.  The  deponent  further  says  that  over  ten  thousand  correc^ 
tions  and  changes  were  made  on  the  iS^^  edition  of  Credit  Ratings^ 
as  revised  and  issued  m  June,  iS9o,  while  said  B/ue  Book,  issued  by 
respondents,  in  Not'ember,  i895,  is  almost  identical  with  the  J'une 
iS94-  edition  of  Credit  Ratings,  issued  seventeen  months  previously  by 
the  complainants,  except  that  a  few  corrections  were  made  in  Penn- 
sylvania and  one  or  two  other  states.  The  deponent  further  says 
that  on  the  'sXdXe.'&oi  Alabama,  Arizona,  Arkansas,  California,  Colorado, 
Connecticut,  Delaware,  District  of  Columbia,  and  Georgia  the  substance 
of  the  \Wlf.  book  of  Credit  Ratings  is  reproduced  in  the  Blue  Book, 
with  ovvXy  five  or  six  alterations  and  (?«^  addition:  while  in  the  i89<5 
edition  of  Credit  Ratings,  issued  seven  months  in  advance  of  the  Blue 
Book,  several  hundred  changes,  additions  and  discontinuances  were 
made  in  the  same  states.  The  deponent  further  says  that  no  edition 
of  the  Credit  Ratings  issued  to  date  has  contained  less  than  eight 
thousand  changes  from  the  book  of  the  previous  year,  and  that  no 
two  editions  of  Credit  Ratings,  published  in  different  years,  bear  such 
close  resemblance  or  show  such  uniformity  in  composition  and 
make-up  as  do  the  Blue  Book  of  the  respondents  and  the  i89^  Credit 
Ratings  issued  by  complainants.  The  deponent  further  says  that 
each  year  since  \2>89  he  has  personally  devoted  two-thirds  of  his  entire 
time,  working  long  hours  and  frequently  evenings  in  the  revision  of 
this  work,  constantly  employing,  during  that  period,  three  assistants 
in  writing  and  mailing  correspondence  and  lists  for  revision.  The  said 
deponent  further  says  that,  in  such  comparison  of  said  Blue  Book 
■with  said  Credit  Ratings  of  \WJf.  as  he  has  been  able  to  make  (which 
has  been  thorough  in  the  above  mentioned  states),  he  finds  the  simi- 
larities given  in  said  lists  or  tables  hereinafter  appearing,  as  to  the 
states  of  Alabama,  Arizona,  Arkansas  and  California,  and  says  that 
the  same  similarity  appears  as  to  the  states  of  Colorado,  Connecticut, 
Delaware  and  Georgia-,  and  from  his  examination  of  other  states  the 
deponent  believes  that  a  further  specification  would  be  simply  to 
recopy  both  of  said  books,  except  that  some  changes  appear  in  the 
states  of  Pennsylvania  and  Massachusetts.  In  the  said  list  or  table 
hereinafter  appearing,  the  deponent  has  in  some  instances  added, 
after  the  word  "Note,"  a  few  words  in  explanation,  and  that  the 
word  '*  Note "  and    explanation   following   should   not    be    taken   as 

468  Volume  5, 


6362. 


COPYRIGHT. 


6362. 


appearing  in  either  of  said  books.  And  the  deponent  further  says 
that  the  following  are  the  letters,  characters  and  numerals  and  their 
respective  significations,  as  appearing  in  the  said  Blue  Book  and  said 
Credit  Ratings :  (^Here  follows  a  list  setting  out  the  similarities  in  the 
publications  of  plaintiff  and  defendant.') 

Ending  with  Wyoming,  respondents  follow  complainants'  classifica- 
tion in  making  up  the  Canadian  provinces,  which  is  not  alphabetical  as 
in  other  publications,  but  a  style  original  with,  and  peculiar  to,  com- 
plainants. 

David  M.  Ladd. 

Sworn  to  February  6,  i896. 


2.  Bill  to  Restrain  Infringfement.^ 

a.  Of  An  Article  in  an  Encyclopsedia. 
Form  No.  6362.''' 

Circuit  Court  of  the  United  States  for  the  Southern  District  of  JVew 
York.     In  Equity. 
To  the  Honorable  the  Judges  of  the  Circuit  Court  of  the  United  States 

for  the  Southern  District  of  New  York,  sitting   as  a  Court  of 

Equity: 


1.  For  the  formal  parts  of  a  bill  in 
equity  in  any  particular  jurisdiction 
consult  the  title  Bills  in  Equity,  vol.  3, 
p.  417.  For  the  formal  parts  of  a  com- 
plaint or  petition  in  any  particular  ju- 
risdiction consult  the  title  Complaints, 
vol.  4,  p.  1019. 

2.  This  bill  is  copied  from  the  records 
in  the  case  of  Black  v.  Henry  G.  Allen 
Co.,  42  Fed.  Rep.  6x8.  To  this  bill  the 
defendants  demurred  on  the  following 
grounds: 

I.  That  said  bill  of  complaint  shows 
no  substantial  right  or  equity  in  or  on 
behalf  of  said  complainants  nor  any  of 
them. 

II.  That  the  alleged  verification  of 
said  bill  of  complaint  is  evasive  and 
deceptive,  and  insufficient  to  support  a 
bill  praying  for  the  extraordinary  rem- 
edy of  injunction. 

III.  That  the  acts  of  defendant  al- 
leged in  said  bill  of  complaint  are  not 
contrary  to  law. 

IV.  That  said  bill  of  complaint  is 
uncertain  and  contradictory  in  its  alle- 
gations of  the  alleged  rights  of  James 
T.  Black,  Francis  Black,  Adam  W. 
Black  and  Alexander  B.  McGlashen,  it 
not  appearing  whether  the  said  com- 
plainants claim  as  co-owners  in  the 
alleged  copyright  or  that  they  are  mere 
licensees  thereunder. 

V.  That  it  does  not  appear  that  the 
alleged  agreement  between  Walker  and 


the  complainants-  James  T.  Black, 
Francis  Black,  Adam  W.  Black  and 
Alexander  B.  McGlashen,  and  under 
which  the  said  complainants  claim 
title,  was  in  writing  or  embodied  in 
any  instrument  in  writing. 

VI.  That  it  is  not  averred  in  said  bill 
of  complaint  that  any  right  of  the  al- 
leged authors  to  copyright  the  alleged 
copyright  ^vork  has  ever  been  assigned 
in  writing  to  the  complainants,  or  any 
of  them. 

VII.  That  the  charge  of  infringement 
and  of  invasion  of  the  alleged  rights  of 
complainants  in  the  bill  of  complaint 
contained  is  not  made  upon  the  knowl- 
edge of  any  person  whatever. 

VIII.  That  the  said  bill  of  complaint 
contains  no  allegations,  as  of  matters 
of  fact,  which,  if  true,  would  show 
that  the  ownership  of  any  copyright, 
real  or  alleged,  upon  the  work  entitled 
"  United  States,  Part  III,  Political  Ge- 
ography and  Statistics,"  is  vested  in  the 
complainants  James  T.  Black,  Francis 
Black,  Adam  W.  Black  and  Alexander 
B.  McGlashen,  or  any  of  them. 

IX.  That  the  bill  of  complaint  does 
not  aver  that  any  substantial  or  ma- 
terial injury  hath  occurred  to  the  com- 
plainants, or  any  of  them,  by  reason  of 
the  alleged  acts  of  defendant. 

X.  That  it  does  not  appear  from  the 
bill  of  complaint  that  any  profit  hath 
accrued  to  the  defendant  from  the  aU- 


469 


Volume  5. 


6362.  COPYRIGHT.  6362. 

James  T.  Black}  Francis  Blacky  Adam  IV.  Black  and  Alexander  B, 
McGlashen.,  all  of  the  city  of  Edinburgh.,  Scotland,  and  all  of  whom  are 
subjects  of  Her  Majesty  the  Queen  of  Great  Britain  and  Irelatid,  and 
all  of  whom  are  aliens,  and  who  are  copartners  engaged  in  business 
as  publishers  at  the  city  of  Edinburgh  under  the  firm  name  of  Adam 
6^  Charles  Black,  and  Francis  A.  Walker,  of  the  city  of  Boston,  in  the 
county  of  Suffolk,  and  state  of  Massachusetts,  and  a  citizen  of  said 
state,  and  now,  and  at  the  time  of,  and  at  all  times  since,  the  taking 
of  the  copyright  hereinafter  mentioned,  a  citizen  of  the  United  States,^ 
bring  this  their  bill  of  complaint  against  the  Henry  G.  Allen  Company, 
a  corporation  organized  and  existing  under  and  by  virtue  of  the  laws 
of  the  state  of  New  York,  and  having  its  principal  place  of  business 
at  the  city  of  New  York,  in  said  state  of  New  York. 

And  thereupon  your  orators  complain  and  say  as  follows,  to  wit: 

The  said  firm  of  Adam  6^  Charles  Black,  your  orators  aforesaid,  are 
the  publishers  of  a  certain  work  entitled  "  The  Encyclopcedia  Britannica, 
Ninth  Edition."  The  said  firm  of  Adam  6^  Charles  Black,  at  the 
time  of  the  making  of  the  agreement  hereinafter  mentioned,  consisted 
of  your  or ditors  James  T.  Black,  Francis  Black  and  Adam  W.  Black; 
and  your  orator  Alexander  B.McGlashen  became  a  partner  at  a  later 
date;  and  the  present  firm  of  Adam  6^  Charles  Black  now  hold  and 
enjoy  all  the  rights  of  their  predecessors  in  respect  of  the  said  '■'■Ency- 
clopcedia  Britannica  "  and  the  said  agreement  and  the  copyright  here- 
inafter mentioned,  all  the  said  rights  of  their  predecessors  having 
been  vested  in  them  according  to  law. 

Your  orators  show  that  the  said  '■'■Encyclopcedia  Britannica"  \%  a 
well  known  work,  of  standard  value  and  character,  eight  editions  of 
which  had  been  published,  and  the  ninth  edition  of  which  was  under- 
taken and  has  been  completed,  printed  and  published  at  great 
expense  by  said  Adam  &>  Charles  Black.  The  said  ninth  edition  of 
the  '■'■Encyclopcedia  Britannica,"  so  printed  and  published,  is  made  up 

leged   acts   of   defendant    in   said   bill  administration  in  the  state  where  suit 

complained  of.  is  brought  is  demurrable.     If  the  bill, 

XI.  That  for  the  matters  and  things  however,    avers   simply    that    plaintiff 

complained    of    complainants   have   a  is  administrator,  the  objection  can  be 

full,  adequate  and  complete  remedy  at  taken  only  by  plea  or  answer.     Black 

law.  V.   Henry  G.   Allen  Co.,  42  Fed.   Rep. 

But  the  demurrer  was  overruled  and  618. 

the  complaint  sustained  at  every  point.  Holder  of  Legal  Title.  —  The  holder  of 

1.  Parties    Plaintiff — Assignee. — The  the  legal  title  may    sue,  although  the 

assignee  of  a  copyright  may  sue   for  beneficial   ownership    be    in    another, 

infringement,  and  the  author  need  not  Hanson  v.  Jaccard  Jewelry  Co.,  32  Fed. 

be  joined  as  co-complainant.     Roberts  Rep.  202. 

V.  Myers,  13  Month.  L.  Rep.  396.  2.  Allegation  of  Citizenship.  —  An  aver- 

Author  and  Publisher.  — The  author  ment    "that   your   orator  at    all   times 

and  publisher  may  sue  jointly  in  some  hereinafter    stated   was   and   still   is  a 

cases,  as  where  the  book  is  prepared  by  citizen  of  the  United  States  and  a  resi- 

one  of  the  plaintiffs  and  all  the  plain-  dent  therein,  residing  in  the  city,  county 

tiffs  caused  the  book  to  be  published  and  state  of  New  York,"  fairly   meets 

for    their    joint    benefit.      Stevens    v.  an  objection   taken  by  demurrer  that 

Wildy.ig  L.  J.  Ch.  190.  the  bill  does  not  show  that  complain- 

Foreign  Administrator.  —  A  bill  by  a  ant  at  the  time  of  producing  the  copy- 
foreign  administrator  which  shows  on  righted  article  was  a  citizen  of  the 
its  face  that  the  administrator  had  United  States  or  a  resident  therein, 
never    taken    out    ancillary   letters   of  Falk  v.  Schumacher,  48  Fed.  Rep.  222. 

470  Volume  5. 


6382. 


COPYRIGHT. 


6362. 


of  articles  or  books,  each  of  which  is,  in  a  large  number  of  instances, 
a  complete  and  independent  book.  None  of  the  articles  or  books 
contained  in  the  twenty-third voAxxvat  of  said  '^Encyclopedia  Britannica" 
hereinafter  referred  to,  with  the  exception  of  the  copyrighted  book 
hereinafter  referred  to,  entitled  '^United  States,  Part  III,  Political 
Geography  and  Statistics,"  and  two  other  books  or  artioles,  have  been 
copyrighted  in  the  United  States. 

And  your  orators  further  say  that  heretofore,  and  before  the  thir- 
teenth day  of  February,  1888,  your  orator,  said  Francis  A.  Walker,  was 
then  a  citizen  of  the  United  States  and  a  resident  of  the  city  of 
Boston,  in  the  county  of  Suffolk,  and  state  of  Massachusetts,  was  the 
author  of  a  certain  book  entitled  '■'■  United  States,  Part  III,  Political 
Geography  and  Statistics,"  the  copyright  of  which  book  was  by  him,  the 
said  Walker,  duly  secured  according  to  the  provisions  of  the  statute 
of  the  United  States  relating  to  copyrights;  that  is  to  say,  the  said 
Walker,  being  the  author  of  the  said  book  entitled  ^'■United  States, 
Part  III,  Political  Geography  and  Statistics,"  and  a  citizen  of  the  United 
States  and  resident  therein,  did  print  and  publish  the  same  and  did, 
before  the  publication  thereof,  deposit  in  the  mail  addressed  to  the 
librarian  of  Congress,  Washington,  District  of  Columbia,  a  printed 
copy  of  the  title  of  said  work,  and  did,  on  the  thirteenth  day  of 
February,  a.  d.  1888,  deliver  at  the  office  of  the  librarian  of  Congress 
at  Washington,  District  of  Columbia,^  a  printed  copy  of  the  title  of 
said  book,  and  did  also,  within  ten  days^  from  the  publication  of  said 


1.  Mailing  and  Deposit  of  Title  —  Aver- 
ment in  Disjunctive.  —  An  averment  that 
"before  the  publication  *  *  *  your 
orator  *  *  *  delivered  at  the  office  of 
the  librarian  of  Congress,  or  deposited 
in  the  mail,  addressed  to  the  librarian 
of  Congress  at  Washington,  D.  C,  a 
printed  copy  of  the  title  of  said  photo- 
graph, *  *  *  and  *  *  *  also  within  ten 
days  from  the  publication  thereof  *  *  * 
delivered  at  the  office  of  the  librarian  of 
Congress,  or  deposited  in  the  mail,  ad- 
dressed to  the  librarian  of  Congress  at 
Washington,  D.  C,  two  copies,"  is  am- 
biguous and  tenders  no  issue,  and  is 
not  a  sufficient  averment  of  compliance 
with  the  statutory  requisites.  Falk  v. 
Howell,  34  Fed.  Rep.  739. 

Variance  between  Title  Deposited  and 
that  Published.  —  Where  the  bill  showed 
that  the  title  of  a  play  deposited  was 
"  Under  the  Gaslight,  a  Romantic 
Panorama  of  the  Streets  and  Homes  of 
New  York,"  and  the  play  was  pub- 
lished as  "  Under  the  Gaslight,  a 
Totally  Original  and  Picturesque 
Drama  of  Life  and  Love  in  These 
Times,  in  Five  Acts,"  it  was  held  that 
there  was  no  material  variance,  and 
that  the  title  of  the  play,  within  the 
meaning  of  the  statute,  was  "  Under 
the  Gaslight,  "  that  being  the  title  that 


would  be  given  it  by  the  public,  the 
accompanying  words  being  mere  mat- 
ter of  description  and  not  properly  part 
of  the  title.  Daly  v.  Webster,  56  Fed. 
Rep.  483. 

Where  the  bill  shows  that  the  title 
deposited  was  "An  Outline  of  the 
Political  and  Economic  History  of  the 
United  States,  with  Maps  and  Charts. 
L  History  and  Constitution.  By  Alex- 
ander Johnson,  M.  A.  \l.  Population 
and  Industry.  By  Francis  A.  Walker, 
LL.D.,"  and  the  title  of  one  of  the 
published  books  deposited  to  complete 
the  copyright  was  "United  States. 
Part  IIL  Political  Geography  and 
Statistics.  Copyright,  1888,  by  F"rancis 
A.  Walker,"  it  was  held  that  the  vari- 
ance would  not  render  the  copyright 
invalid  against  one  not  claiming  to  be 
deceived.  Black  v.  Henry  G.  Allen  Co., 
56  Fed.  Rep.  764. 

2.  Copies,  When  Deposited.  —  26  U.  S. 
Stat,  at  Large,  p.  1107,  Jj  3,  amending 
U.  S.  Rev.  Stat.  (1878),  ^^4956,  requires 
two  copies  of  the  article  copyrighted  to 
be  delivered  at  the  office  of  the  librarian 
of  Congress  at  Washington,  District  of 
Columbia,  or  deposited  in  the  mail 
within  the  United  States,  addressed  to 
the  librarian  of  Congress  at  Washing- 
ton, District  of  Columbia,  not  later  than 


471 


Volume  5. 


6362. 


COPYRIGHT. 


6362. 


book,  which  publication  was  by  him,  the  said  Walker,  made  in  the 
United  States,  deposit  in  the  mail  addressed  to  the  librarian  of  Con- 
gress at  Washington,  District  of  Columbia,  and  did  deliver  at  the 
office  of  the  librarian  of  Congress  at  Washington,  District  of  Columbia, 
two  copies  of  said  book,^  each  of  which  copies  so  deposited  in  the  mail 
was  a  complete  printed  copy  of  said  book  of  the  best  edition  issued,  and 
also  give  notice  and  information  of  the  copyright  thereof  having  been 
by  him  secured  by  inserting  in  the  several  copies  of  every  edition 
published,  on  the  title-page  thereof,  the  following  words,  to  wit: 
"  Copyright  1888,  by  Francis  A.  Walker"^    And  the  said  Walker  duly 


the  day  of  the  publication  thereof,  in 
this  or  any  foreign  country. 

1.  Deposit  of  Copies  with  Librarian. — 
It  must  be  directly  averred  that  two 
copies  of  the  book  were  deposited  in  the 
office  of  the  librarian  of  Congress 
within  ten  days  (see  supra,  note  2, 
p.  471)  after  publication,  and  an  aver- 
ment that  a  printed  title  of  the  book  was 
furnished  to  the  librarian,  and  that 
"  thereafter,  within  the  time  and  in  the 
manner  prescribed  by  law,  your  orator 
did  all  the  things  required  by  law  to  be 
done  in  order  to  secure  to  himself  the 
full  enjoyment  of  all  rights  and  privi- 
leges granted  by  the  laws  of  the  land 
governing  copyright,"  is  insufficient. 
Burnell  v.  Chown,  69  Fed.  Rep.  994. 
But  it  need  not  be  averred  that  the  book 
was  published  within  a  reasonable  time 
after  the  deposit  of  the  copy  of  the  title, 
where  it  is  alleged  that  the  plaintiff  de- 
posited, within  ten  days  (see  supra,  note 
2,  p.  491)  after  publication,  in  the 
librarian's  office  at  Washington,  two 
copies  of  the  book.  Scribner  v.  Henry 
G.  Allen  Co.,  49  Fed.  Rep.  854. 

Where  the  bill  shows  that  sheets  or 
pages  containing  the  separate  article 
by  an  American  author  were  taken  from 
the  bound  volume  of  a  foreign  en- 
cyclopzedia  and  deposited  with  the  li- 
brarian, a  substantial  compliance  with 
the  provisions  of  the  statute  is  shown. 
Black  V.  Henry  G.  Allen  Co.,  56  Fed. 
Rep.  764.  And  so  of  a  bill  showing 
that  two  copies  of  the  copyrighted 
photograph  were  mailed  to  the  librarian 
before  publication,  but  within  ten  days 
(see  supra,  note  2,  p.  471)  thereof. 
Falk  V.  Donaldson,  57  Fed.  Rep.  32. 

2.  Inserting  Notice  of  Copyright  Cten- 
erally.  —  No  person  shall  maintain  an 
action  for  the  infringement  of  his  copy- 
right unless  he  shall  give  notice  thereof 
by  inserting  in  the  several  copies  of 
every  edition  published,  on  the  title- 
page  or  the  page  immediately  following 
it,  if  it  be  a  book,  or  if  a  map,  chart,  etc., 


by  describing  upon  some  portion  of  the 
face  or  front  thereof,  or  on  the  face  of 
the  substance  on  which  the  same  shall 
be  mounted,  the  following  words:  "  En- 
tered according  to  act  of  Congress,  in 
the  year  189CP,  hy  John  Doe,  in  the  office 
of  the  Librarian  of  Congress,  at  Wash- 
ington." U.  S.  Rev.  Stat.  (1878),  § 
4962.  And  by  U.  S.  Rev.  Stat.  (Supp. 
1891),  p.  15,  c.  301,  it  is  provided  that 
the  following  words  may  be  used  at  the 
option  of  the  person  taking  out  the 
copyright,  to  wit:  "Copyright,  i89<?,  by 
John  Doe."  And  a  bill  which  does  not 
aver  that  the  plaintiff  inserted  such 
words  on  the  title-page  or  page  follow- 
ing is  fatally  defective.  Thompson  v. 
Hubbard,  131  U.  S.  123  ;  Trow  City 
Directory  Co.  v.  Curtin,  36  Fed.  Rep. 
829;  Chicago  Music  Co.  v.  J.  W.  Butler 
Paper  Co.,  19  Fed.  Rep.  758;  Parkinson 
V.  Laselle,  3  Sawy.  (U.  S.)  330;  and  see 
also  Jollie  v.  Jaques,  I  Blatchf.  (U.  S.) 
618;  Wheaton  v.   Peters,  8  Pet.  (U.  S.) 

In  Copy  Deposited  in  Library  of  Con- 
gress. —  A  copy  of  the  work  deposited  in 
the  library  of  Congress  need  not  con- 
tain any  notice  of  the  copyright.  Os- 
good V.  Aloe  Instrument  Co.,  69  Fed. 
Rep.  291. 

Beqaisites  of  Notice  —  Name.  —  The 
law  requires  that  the  name  of  the  per- 
son by  whom  the  book  is  copyrighted 
shall  be  stated,  and  in  consequence  a 
notice  in  the  following  words  and 
figures,  to  wit:  "  Copyright,  189/.  All 
rights  reserved,"  was  held  insufficient. 
Osgood  V.  Aloe  Instrument  Co.,  69  Fed. 
Rep.  291. 

A  notice  which  gives  the  surname  of 
the  proprietor  as  well  as  the  initial 
letters  of  his  christian  name  is  suffi- 
cient. Burrow-Giles  Lithographic  Co. 
V.  Sarony,  iii  U.  S.  53;  Sarony  v.  Bur- 
row-Giles Lithographic  Co.,  17  Fed. 
Rep.  591.  And  a  notice  which  gives 
the  surname  alone  is  sufficient  unless 
it  is  shown  that  there  is  someone  else 


473 


Volume  5. 


6362.  COPYRIGHT.  6362. 

complied  with  and  fulfilled  all  the  other  requirements  and  provisions 
of  the  statutes  in  such  case  made  and  provided,  and  the  librarian  of 
Congress  did,  on  the  thirteenth'ddLy  oi  February.  iSSS,  record  the  name 
of  the  said  book  entitled  as  Siiortsd^d,  "■United  States,  Fart  I/I, 
Folitical  Geography  and  Statistics"  and  there  was  granted  to  the  said 
Walker  a  copyright  for  the  term  of  twenty-eight  years  from  the 
thirteenth  day  oi  February,  iSS8,  and  the  said  Walker  became  entitled 
to  and  did  acquire  the  sole  liberty  of  printing,  reprinting,  publishing, 
completing,  copying,  executing  and  vending  the  said  copyrighted 
book  for  the  said  term  of  twenty-eight  years  from  the  thirteenth  day 
of  February,  iSS8,  which  copyright  still  continues  and  remains  in 
full  force  and  effect. 

And  your  orators  further  say  that  your  orator,  the  said  Francis  A. 
Walker,  having  obtained  the  said  copyright  in  pursuance  of  law,  did, 
by  an  agreement  made  on  or  about  \.\it.  first  day  of  April,  1888,  and 
before  the  infringement  hereinafter  complained  of,  for  a  good  and 
valuable  consideration,  assign  and  transfer^  to  your  orators  constitut- 
ing the  firm  of  Adam  6^  Charles  Black  an  interest  in  said  copyright: 
that  is  to  say,  the  said  Walker  did  assign  and  transfer  to  your  orators 
constituting  the  firm  of  Adam  cr*  Charles  Black  the  sole  and  exclu- 
sive right  and  liberty  of  printing,  reprinting,  publishing,  copying  and 
vending  during  the  whole  term  of  the  said  copyright,  the  said  book 
entitled  "  United  States,  Fart  III,  Folitical  Geography  and  Statistics," 
in  connection  with  and  as  a  part  of  their  said  Encyclopedia  designated 
**  Encyclopcedia  Britannica,  Ninth  Edition,"  and  not  otherwise,  the 
said  Walker  retaining  the  right  to  print,  publish,  copy  and  vend  the 
said  copyrighted  book  in  every  form  and  manner,  other  than  as  a  part 
of  said  '■'•  Encyclopcedia  Britannica." 

And  your  orators  say,  that  if  the  said  Francis  A.  Walker  did  not 
by  the  said  agreement  made  on  or  about  \Xit  first  day  ol  April,  1888, 

of  the  same  name.  Burrow-Giles  Litho-  cient:    "  i88g,    copyrighted   by    B.  J. 

graphic  Co.  v.  Sarony,  iii   U.  S.  53;  Falk,  N.  Y."     Falk  v.  Schumacher,  48 

Bolles   V.  Outing  Co.,  45  U.   S.  App.  Fed.  Rep.  222. 

449.  "  Copyright,  1893,  by  Bolles,  Brook- 

The  name  "  Photographische  Gesell-  lyn."     Bolles  v.  Outing  Co.,  45  U.  S. 

schaft,"   being  the  trade  name  created  App.  449. 

by  complainant  and  extensively   used  "  Copyright  entered  according  to  act 

by  him  in  his  business,  was  held  to  be  of  Congress,  1889,  by  F.  C.  Hefel,  Civil 

a  sufficient  designation   of  the  person  Engineer."    Hefel  f.  Whitely  Land  Co., 

taking    out    the    copyright.       Werck-  54  Fed.  Rep.  179. 

meister  z/.  Springer  Lithographing  Co.,  1.  Description  of  Assigiimeiit. —  It  was 

63  Fed.  Rep.  808.  objected  that  it  did  not  appear  that  the 

Residence.  — The    residence    of    the  assignment  between  the  author  and  the 

party    is    not    required   to   be   stated.  Messrs.   Black  was   in   writing,  but   it 

Burrow-Giles      Lithographic     Co.     v.  was  held  that   when  all  the  legal  and 

Sarony,  iii  U.  S.  53;  Werckmeister  v.  equitable  owners   are  joined  it  is  un- 

Springer    Lithographing   Co.,   63   Fed.  necessary   to   state   the   formalities  or 

Rep.  808:  Black  z/.  Henry  G.  Allen  Co.,  mode   of    conveyance    by    which   the 

42  Fed.  Rep.  618.  equitable  interests  became  vested  in  the 

Date.  — The  abbreviation  "  '94,"  rep-  co-complainants,  and  if  the  owner  of  a 

resenting  the  year,  has  been  held  suffi-  legal   title  is   a  complainant  it  is   im- 

cient.     Snow   v.    Mast,   65    Fed.    Rep.  material  whether  the  equitable  owners 

995.  became   vested   by   an    instrument   in 

Sufficient  Notices.   —  The    following  writing  or  by  parol.     Black  v.  Henry 

forms  of  notice  have  been  held   suflB-  G.  Allen  Co.,  42  Fed.  Rep.  618. 

478  Volume  f. 


6362.  COPYRIGHT.  6362. 

assign  and  transfer  to  your  orators  constituting  the  firm  of  Adam  &* 
Charles  Black:,  an  interest  in  said  copyright,  the  said  agreement  was 
an  exclusive  and  irrevocable  license  to  your  orators  constituting  the 
firm  of  Adam  ^  Charles  Black,  giving  and  granting  them,  and  by 
which  they  acquired,  the  sole  and  exclusive  right  and  liberty  of 
printing,  reprinting,  publishing,  copying  and  vending,  during  the 
whole  term  of  said  copyright,  the  said  book  entitled  "  United  States, 
Part  III,  Political  Geography  and  Statistics"  in  connection  with,  and 
as  a  part  of,  their  said  twenty-thirdvoXwxao.  of  their  said  ^^  Encyclopedia 
Britannica,  Ninth  Edition."  And  your  orators  aver  that  your  orators 
constituting  the  firm  of  Adam  &•  Charles  Black  acquired  by  the  said 
agreement  an  equitable  interest  in  said  copyright  which  is  substan- 
tially the  same  whether  the  said  agreement  was  and  should  be  held 
to  be  an  assignment  and  transfer  of  an  interest  in  said  copyright  or 
an  exclusive  license  to  use  the  subject  of  the  said  copyright  as  part 
of  said  volume  of  ssi^d  Encyclopcedia.^ 

And  your  orators  aver  that  your  orators  who  constitute  the  firm 
of  Adam  6^  Charles  Black  have  now,  and  have  had  since  the  making 
of  said  agreement,  an  equitable  interest  in  said  copyright,  and  have 
had  the  exclusive  right  of  printing,  publishing  and  vending  said  copy- 
righted book  as  part  of  their  said  Encyclopedia,  and  that  they,  your 
orators  who  constitute  said'  firm,  are  greatly  and  directly  injured 
by  the  infringements  hereinafter  complained  of,  and  are  equitably 
entitled  to  receive  the  profits  which  have  been  diverted  from  them  by 
the  acts  of  the  said  The  Henry  G.  Allen  Company,  hereinafter  set  forth 
and  complained  of,  and  an  account  of  which  is  hereinafter  prayed  for. 

And  your  orators  constituting  the  firm  of  Adam  d^  Charles  Black, 
after  the  said  copyright  had  been  taken  by  said  Walker,  exercised 
their  rights  in  the  premises  and  made  use  of  said  copyrighted  book, 
and  printed  and  sold  the  same  in  connection  with,  and  as  part  of, 
their  twenty-third  volume  of  their  said  Ninth  Edition  of  the  "  Encyclo- 
pcedia  Britannica,"  and  continue  so  to  use  said  copyrighted  book;  and 
the  right  so  to  use  the  same  is  of  great  value  and  importance  to  them. 

And  your  orators  say  that  the  whole  of  said  copyright  and  all  the 
privileges  of  every  nature  and  description  relating  thereto,  with  the 
exception  of  the  right  to  use  the  subject  thereof  in  said  Encyclopcedia, 
has  always  remained  and  continued  to  be  the  property  of  said  Walker. 
And  your  orators  aver  that  they  are  now  well  seised  of  said  copy- 
right, and  are  the  owners  thereof,  and  that  the  same  is  of  great  value 
and  importance  to  them,  and  that  they  have  the  right  to  enjoy  all 
the  privileges  secured  and  intended  to  be  secured  thereby;  and  that 
they  now  have,  and  have  always  had,  since  said  copyright  was 
obtained,  copies  of  said  copyrighted  book  exposed  for  sale,  and  that 
the  public  have  been  supplied  with  the  same  to  their  benefit  and 
advantage  and  the  profit  of  your  orators. ^ 

1.  Alternative  Conclasions.  —  It   was  to  state  the  facts  and  to  then  state  the 

objected    that  this  plea  was  uncertain  conclusions  therefrom  in  an  alternative 

andcontradictory  because  it  did  not  ap-  form.     Black  v.  Henry    G.  Allen    Co., 

pear  whether  the  plaintififs,  the  Messrs.  42  Fed.  Rep.  6r8. 

Black,  claimed  as  co-owners  of  the  copy-        2.  Proprietorship.  — The    bill    should 

right  or  as  licensees,  but  it  was  held  to  contain  allegations  which  amount  to  an 

be  the  correct  form  in  equity  pleading  assertion  of   authorship  in   terms  suffi- 

474  Volume  5. 


6362.  COPYRIGHT.  6362. 

And  your  orators  further  say  that  the  said  The  Henry  G.  Allen 
Company,  intending  to  injure  your  orators,  and  contriving  to  deprive 
them  of  the  privileges  which  they  were  to  receive  from  the  sole  and 
exclusive  printing,  publishing  and  vending  the  said  book  entitled 
"  United  States,  Part  III,  Political  Geography  and  Statistics,"  has  unlaw- 
fully, and  without  the  consent  of  your  orators,  printed,  published  and 
sold,  or  caused  to  be  printed,  published  and  sold,  in"  said  southern 
district  of  Nau  York,  since  your  orators'  rights  in  the  premises  were 
acquired,  as  aforesaid,  and  since  the  recording  of  the  title  of  said 
copyrighted  book,  a  large  number  of  copies  of  said  copyrighted  book, 
or  a  substantial  part  or  parts  thereof,  which  infringing  books^  so 
printed,  published  and  sold  by  said  company  have  been  in  every  way 
substantially  the  same  as  the  book  which  is  the  subject  of  your  ora- 
tors' charge,  were  copied  and  pirated  from  your  orators'  copyrighted 
book,  and  the  reprinting,  publishing  and  sale  of  which  by  said  com- 
pany was  a  piracy  and  infringement  of  your  orators'  said  copyright, 
and  of  their  rights,  and  the  rights  of  each  and  all  of  them,  growing 
out  of  said  copyright. 

And  your  orators  say  that  the  said  piratical  books  so  printed  in 
violation  of  your  orators'  rights,  the  said  The  Henry  G.  Allen  Company 
has  caused  to  be  used  in  connection  with  and  as  part  of  a  so-called 
"reprint "  of  the  said  Encyclopcedia  Britannica,  Ninth  Edition,  of  your 
orators  who  constitute  the  firm  of  Adam  cr*  Charles  Black,  the  same 
having  been  printed  and  used  in  every  way  as  said  copyrighted  book 
had  been  printed  and  used  by  your  orators  constituting  the  firm  of 
Adam  &  Charles  Black,  in  pursuance  of  their  rights  in  the  premises, 
and  as  hereinbefore  set  forth;  except  that  the  said  The  Henry  G. 
Allen  Company  has  omitted  the  marginal  notes  of  the  original  and  the 
copyright  notice  applied  upon  the  title-page  of  said  copyrighted  book, 
to  wit:  '^Copyright  1888,  by  Francis  A.  Walker y  All  of  which  matters 
and  things  acted  and  done  by  the  said  The  Henry  G.  Allen  Company 
are  contrary  to  equity  and  good  conscience,  and  a  great  and  continu- 
ing injury  to  your  orators  and  to  each  and  all  of  them. 

And  the  said  company  has  in  its  possession  or  power  a  large  num- 
ber of  copies  of  said  infringing  books,  and  threatens  to  continue  and 
persist  in  publishing  and  selling  the  same  in  further  violation  of  your 
orators'  rights  as  aforesaid,  and  infringement  of  their  said  copyright. 

And  your  orators,  all  and  singular,  do  hereby  expressly  waive  and 
relinquish  any  and  every  right  which  they  may  have  by  reason  of  the 
acts  of  the  said  The  Henry  G.  Allen  Company,  hereinbefore  complained 

ciently  explicit  and  full  to  establish  a  cific  exception  the  allegation  that  a  cer- 

dear   title  in  the   plaintiff.     Atwill  v.  tain  dramatic  composition  was"  written 

Ferrett,  2  Blatchf.  (U.  S.)  39.     Or  if  the  or  composed"  by  citizens  of  the  United 

plaintiff   is  not  the  author,  such  third  States  was  held  to  be  a  sufficient  aver- 

person   must  show  a  legal  title  and  an  ment    of   ownership.      Henderson    v. 

exclusive  right  to  the  copyright   law-  Tompkins,  60  Fed.  Rep.  758. 

fully  derived  from  the  other.    To  allege  1.  Exhibits. — Attaching  copies  of  the 

that  plaintiff  owned  the  property  with-  infringed  and  infringing  maps,  etc.,  to 

out  more  is  insufficient.     Yuengling  v.  a  bill   praying  an    injunction   against 

Schile,  12  Fed.  Rep.  97;  Chicago  Music  the  infringement  is  proper.     Black  v. 

Co.  V.  J.  W.  Butler  Paper  Co.,  19  Fed.  Henry  G.  Allen  Co.,  42  Fed.  Rep.  618. 
Rep.  758.     But  in  the  absence  of  spe- 

475  Volume  5. 


6362.  COPYRIGHT.  6362. 

of,  to  enforce  against  or  recover  of  it,  the  said  The  Henry  G.  Allen 
Company,  its  successors  and  assigns,  any  penalty  or  penalties,  for- 
feiture or  forfeitures,  under  or  by  virtue  of  the  statutes  of  the  United 
States  concerning  copyrights. ^ 

In  consideration  whereof,  and  because  your  orators  are  remediless 
in  the  premises  by  the  rules  of  the  common  law,  and  cannot  have 
adequate  relief,  save  in  a  court  of  equity,  where  matters  of  this 
nature  are  properly  cognizable,  and  to  the  end  that  the  said  The 
Henry  G.  Allen  Company  may  answer,  all  and  singular,  the  matters 
and  things  hereinbefore  set  forth  and  complained  of,  and  that  the  said 
The  Henry  G.  Allen  Company  be  forever  restrained  by  injunction,  as 
well  perpetually  as  during  the  pendency  of  this  suit,  from  printing  and 
from  publishing  and  from  selling  or  exposing  for  sale,  or  otherwise 
disposing  of  any  copies  of  its  said  piratical  and  unlawful  book;  and 
that  it  may  be  ordered  to  render  an  account^  of  the  profits  arising 
from  the  sale  of  said  piratical  book,  as  far  as  any  profits  have  been 
made,  and  required  to  pay  over  such  profits  to  your  orators;  the 
profits  resulting  from  the  use  of  said  piratical  book  as  a  part  of  said 
"  reprint  "  being  profits  to  which  your  orators  constituting  the  firm  of 
Adain  &"  Charles  Black  are  equitably  entitled,  and  the  remaining 
profits  growing  out  of  any  other  infringement  of  said  copyright,  if 
any  there  be,  being  profits  which,  of  right,  belong  to  your  orator 
said  Francis  A.  Walker;  and  to  pay  to  your  orators  their  costs  and 
disbursements  in  this  suit;  and  that  your  orators  may  have  such 
further  relief  in  the  premises  as  to  this  honorable  court  may  seem 
meet  and  equitable,  and  as  the  nature  and  circumstances  of  the  case 
may  require. 

May  it  please  your  honors  such  relief  fully  to  direct  and  order,  the 
same  as  if  the  relief  which  equity  demands  were  made  the  subject  of 
a  specific  prayer  or  prayers;  and  may  it  please  your  honors  to  grant 
unto  your  orators  a  writ  of  subpoena  according  to  the  course  of 
courts  of  equity,  directed  to  the  said  The  Henry  G.  Allen  Company, 
commanding  it  personally  to  be  and  appear  before  this  honorable 
court,  then  and  there  to  answer  the  premises,  and  to  stand  to  and 
abide  by  such  order  and  decree  therein  as  to  this  honorable  court  shall 
seem  agreeable  to  equity  and  good  conscience. 

And  your  orators,  as  in  duty  bound,  will  ever  pray,  etc. 

Francis  A.  Walker. 

Rowland  Cox, 

Solicitor  for  Complainants. 

Rowland  Cox, 

Of  Counsel  for  Complainants. 

1.  Penalties  and  Forfeitnres. — The  pen-  officer  of  the  court  for  cancellation  and 

alties  imposed  by  the  act  of  congress,  destruction,   is   demurrable  as  asking 

relating  to  copyright,  to  wit,  the  for-  for  the  enforcement  of  such  forfeiture, 

feiture  of  the  printed   copies  and   the  Chapman  v.  Ferry,  12  Fed.  Rep.  693. 

sum  of  one  dollar  for  each  sheet  un-  2.  Accounting. — An  accounting  should 

lawfully  printed,  cannot  be  enforced  in  be   prayed   for   if   desired.     Stevens  z/. 

a  court  of  equity.  Stevens  v.  Gladding,  Cady,  2  Curt.  (U.  S.)  200.     But  may  be 

17  How.  (U.  S.)  447.     And  a  prayer  in  had  under  a  general  prayer  for  relief, 

a  bill  that  the  plate  and  unsold  copies  Stevens  z*.  Gladding,   17  How.  (U.   S.) 

of  a  pirated  map  be  delivered  up  to  an  447;  Gilmore  v.  Anderson,  38  Fed.  Rep. 

476  Volume  5. 


6363.  COPYRIGHT.  6363. 

United  States  of  America,  District  of  Massachusetts, 
County  of  Suffolk, 
State  of  Massachusetts. 

Francis  A.  Walker,  being  duly  sworn,  says  he  is  one  of  the  com- 
plainants named  in  the  foregoing  bill  of  complaint  by  him  sub- 
scribed, that  he  has  read  the  said  bill  and  knows  the  contents  thereof; 
that  as  to  the  statements  contained  in  said  bill  which  are  within  his 
own  knowledge,  they  are  true,  and  as  to  the  statements  derived  from 
the  information  of  others,  he  verily  believes  them  to  be  true.^ 

Francis  A.  Walker. 

Subscribed  and  sworn  to  before  me  this  twenty-fifth  day  of  October^ 
A.  D.  i8^S>.2 

Chas.  Hall  Adams, 

,         >.  Commissioner  of  the  State  of  Ne7v  York. 

^seal;  ^jg^  Notary  Public  for  the  County  of  Suffolk, 

State  of  Massachusetts. 

b.  Of  a  Book.' 
Form  No.  6363/ 

Circuit  Court  of  the  United  States,  Northern  District  of  New  York, 
in  the  Second  Circsit. 

The  West  Publishing  Company 
against 
The  Lawyers^  Co-operative  Publishing  Company. 
To   the    Judges  of   the  Circuit  Court  of  the  United  States  for   the 
Northern  District  of  New  York,  in  the  Second  Circuit : 

The  West  Publishing  Company,  a  corporation  duly  organized  under 
the  laws  of  the  state  of  Minnesota,  having  its  principal  office  and 
place  of  business  at  the  city  of  St.  Paul,  and  a  resident  or  citizen  of 
the  state  of  Minnesota,  brings  this  its  bill  against  the  Lawyers' 
Co-operative  Publishing  Company,  a  corporation  duly  organized  under 
the  laws  of  the  state  of  Ne^v  York,  having  its  principal  office  and 
place  of  business  at  the  city  of  Rochester,  in  the  northern  district  of 
New  York,  and  a  resident  or  citizen  of  said  state  of  New  York. 

And  thereupon  your  orator  complains  and  says,  that  the  defendant, 
the  Lawyers'  Co-operative  Publishing  Company,  is  and  for  nine  years 
last  past  has  been  a  corporation  duly  organized,  created  and  estab- 
lished by  and  under  the  laws  of  the  state  of  New  York  for  the  pur- 

846.     And   the  right  to  an  accounting  verified  at  the  time  it  is  signed.     Black 

of  profits  is  incident  to  the  right  to  an  v.   Henry  G.  Allen  Co.,  42   Fed.   Rep. 

injunction  under  U.  S.  Rev.  Stat  (1878),  618. 

§4970.      Falk  V.  Gast  Lithograph,  etc.,         3.  Precfldents.  —  See  also  a  bill  to  re- 
Co.,  54  Fed.  Rep.  890.  strain   the   infringement   of    copyright 

1.  Knowledge  of  Affiant.  —  Where  the  on  state  law  reports  in  Curtis'  Equity 
bill  positively  avers  the  infringement  of  Precedents,  p.  38,  and  the  substance  of 
a  copyright,  it  is  not  necessary  to  aver  a  bill  to  restrain  infringement  of  copy- 
that  the  infringement  was  within  the  right  on  an  arithmetic  in  3  Story  (U.  S.) 
knowledge  of  affiant.     Black  v.  Henry  768. 

G.  Allen  Co.,  42  Fed.  Rep.  618.  4.  This  form  is  taken  from  the  records 

2.  Verification.  —  Where  a  bill  prays  in  West  Pub.  Co.  v.  Lawyers'  Co-oper- 
for  an   injunction,  but  is  not  intended     ative  Pub.  Co.,  79  Fed.  Rep.  756. 

to  be  used  as  evidence,  it  need  not  be 

477  Volume  5. 


6363.  COPYRIGHT,  6363. 

pose  of  carrying  on  the  business  of  making,  editing,  preparing, 
publishing  and  selling  books,  and  that  during  that  time  it  has  carried 
on  and  still  carries  on  said  business  at  the  city  of  Rochester,  in  the 
state  of  New  York;  that  your  orator  is  and  for  ten  years  last  past  has 
been  a  corporation  duly  organized,  created  and  established  by  and 
under  the  laws  of  the  state  of  Minnesota  for  the  same  purpose,  and 
that  during  that  time  it  has  carried  on  and  still  carries  on  said  busi- 
ness at  the  city  of  St.  Paul  in  said  state  of  Minnesota,  where  it  has  its 
principal  office  and  place  of  business,  and  that  the  principal  office  and 
place  of  business  of  the  defendant  is  located  at  the  city  of  Rochester 
in  the  northern  district  of  the  state  of  New  York,  and  that  the  defend- 
ant as  well  as  your  orator  is  and  both  of  them  are  residents  or  citizens 
of  the  United  States. 

And  your  orator  further  alleges  and  shows  that  since  the 
fifteenth  day  of  September,  iS91,  it  has,  from  time  to  time, 
made,  edited,  prepared  and  published  and  thereupon  became  and 
was  the  author  and  proprietor  of  a  book  or  work,  which  had  not 
then  been  published,  entitled,  '■'■The  Federal  Reporter,  Vol.  J/l.  Cases 
Argued  and  Determined  in  the  Circuit  Courts  of  Appeals  and  Circuit  and 
District  Courts  of  the  United  States.  Permanent  Edition.  September- 
December,  1891,"  and  generally  known  and  labeled  on  the  back  as 
the  Federal  Reporter,  Vol.  Jfl,  and,  as  such  author  and  proprietor, 
your  orator,  desiring  to  secure  a  copyright  upon  the  same  in  accord- 
ance with  the  statute  of  the  United  States  in  such  case  made  and 
provided,  before  the  publication  of  said  book,  duly  deposited  in 
the  mail  within  the  United  States,  to  wit,  at  the  city  of  St.  Paul, 
Minnesota,  addressed  to  the  librarian  of  Congress  at  Washington, 
District  of  Columbia,  a  printed  copy  of  the  title  of  said  book, 
and  in  accordance  with  the  law,  on  the  twentieth  day  of  February, 
\%92,  not  later  than  the  day  of  publication  thereof,  duly  deposited 
in  the  mail  within  the  United  States,  to  wit,  at  the  city  of  St. 
Paul,  Minnesota,  addressed  to  the  librarian  of  Congress  at 
Washington,  District  of  Columbia,  two  copies  of  such  copyright  book; 
and  that  such  copyright  book  was  printed  from  plates  made  from 
type  set  within  the  limits  of  the  United  States.  And  your  orator 
further  alleges  and  shows  that  from  the  fifteenth  day  of  September, 
iS91,  until  the  completion  and  publication  of  said  book,  your 
orator  from  time  to  time  made,  edited,  prepared  and  published 
and  thereupon  became  and  was  the  author  and  proprietor  of 
certain  advance  sheets  or  pamphlet  books  or  numbers,  containing 
the  decisions  of  the  cases  argued  and  determined  in  the  Circuit 
Courts  of  Appeals  and  Circuit  and  District  Courts  of  the  United  States, 
from  September,  xWl,  to  December,  iS91,  as  they  were  handed  down 
by  said  courts,  which  advance  sheets  or  pamphlet  books  were  and 
are  parts  of  said  Federal  Reporter,  Vol.  Jf!7,  and  are  substantially 
identical  with  said  volume,  but  were  issued  from  time  to  time  in 
pamphlet  form  or  numbers  for  greater  convenience  and  speed  in  pro- 
mulgating said  decisions  and  were  entitled,  respectively:  '■'■Federal 
Reporter,  Vol.  ^.7,  September  22, 1891,  No.  1  "y  {Here  followed  a  similar 
description  of  twelve  other  parts.') 
\     And  your  orator  further  alleges  and  shows  that  your  orator,  desir- 

478  Volume  5. 


6363.  COPYRIGHT.  6363. 

ing  to  secure  a  copyright  upon  the  first  advance  book  or  number  so 
contained  in  the  completed  and  permanent  edition,  published  prior 
to  the  completion  of  the  entire  volume  and  entitled  ^'Federal  Reporter ^ 
Vol.  47,  September  22,  1891,  No.  1"  in  accordance  with  the  statute  of 
the  United  States  in  such  case  made  and  provided,  before  the  publi- 
cation of  said  book  or  advance  number,  duly  deposited  in  the  mail 
within  the  United  States,  to  wit,  at  the  city  of  St.  Paul,  Minnesota, 
addressed  to  the  librarian  of  Congress  at  Washington,  District  of 
Columbia,  a  printed  copy  of  the  title  of  said  book  or  advance  num- 
ber, and  not  later  than  and  upon  the  day  of  publication  of  said 
book  or  advance  number,  deposited  in  the  mail  within  the  United 
States,  to  wit,  at  the  city  of  St.  Paul,  Minnesota,  addressed  to  the 
librarian  of  Congress  at  Washington,  District  of  Columbia,  two 
copies  of  said  copyright  book  or  advance  number,  printed  from 
plates  made  from  type  set  within  the  limits  of  the  United  States. 
And  your  orator  further  alleges  and  shows  that  your  orator,  desiring 
to  secure  a  copyright  upon  each  of  the  said  remaining  or  following 
advanced  numbers  or  books,  so  published  from  time  to  time  prior  to 
the  completion  and  publication  of  the  entire  volume,  in  accordance 
with  the  statute  of  the  United  States  in  such  case  made  and  pro- 
vided, before  the  publication  of  each  other  or  remaining  book  or 
advance  number,  respectively,  duly  deposited  in  the  mail  within  the 
United  States,  to  wit,  at  the  city  of  St.  Paul,  Minnesota,  addressed  to 
the  librarian  of  Congress  at  Washington,  District  of  Columbia,  a 
printed  copy  of  the  title  of  said  book  or  advance  number,  so  that  the 
title  of  each  advance  book  or  number  was  so  deposited  before  the 
publication  of  its  respective  book  or  number;  and  respectively  not 
later  than  and  upon  the  respective  and  several  days  of  publication 
of  said  book  or  numbers,  viz. :  2,  3,  Jf,  5,  6,  7,  8,  9,  10,  11,  12  and  13 
of  said  advanced  books  or  numbers,  duly  deposited  in  the  mails 
within  the  United  States,  to  wit,  at  the  city  of  St.  Paul,  Mimtesota, 
addressed  to  the  librarian  of  Congress  at  Washington,  District  of 
Columbia,  two  copies  of  said  copyright  book  or  advanced  numbers,  so 
that  not  later  than  the  day  of  publication  of  each  of  said  books  or 
advance  numbers  two  copies  of  each  thereof  were  so  deposited,  each 
and  every  of  the  same  having  been  printed  from  plates  made  from 
type  set  within  the  limits  of  the  United  States.  *  *  *  1 

And  your  orator  further  alleges  and  shows  that  since  the  first  day  of 
September,  i&91,  it  has,  from  time  to  time,  made,  edited,  prepared  and 
published  and  thereupon  became  and  was  the  author  and  proprietor  of 
a  book  or  work,  which  had  not  then  been  published,  entitled  (^Here  was 
set  out  a  copy  of  the  title-page)^  generally  known  and  labeled  on  the  back 

1.  Here  followed  similar  allegations  17,  18,  19,  20;   Pacific    Reporter,   vols, 

as   to   complete  volume  and  separate  27,  28,  29,  30;  New  York  Supplement, 

parts  of  the  following  reports:    Federal  vols.  15,  i6,  17,  18,  ig. 
Reporter,   vols.   48,  49,  50,   51;  Atlan-        2.  The  title-page   referred  to  was  as 

tic   Reporter,  vols.  22,  23,   24;    North-  follows:    "  The  American  Digest.    (An- 

eastern    Reporter,  vols.  28,  29,  30,  31;  nual,   1892.)      Being   Volume   6  of  the 

Southeastern  Reporter,  vols.  13,  14,  15;  United     States     Digest     Third    Series 

Southern    Reporter,    vols.    9,     10,    11;  Annuals;    Also,  the   Complete    Digest 

Northwestern    Reporter,  vols.    49,   50,  for   1892.      A    Digest    of   All   the    De- 

51,  52:  Southwestern  Reporter,  vols.  16,  cisions  of  the  United  States  Supreme 

479  Volume  5. 


6363.  COPYRIGHT.  6363. 

as  '■'American  Digest,  1892,  Annual";  and  as  such  author  and  proprietor 
your  orator,  desiring  to  secure  a  copyright  upon  the  same,  in  accord- 
ance with  the  statute  of  the  United  States  in  such  case  made  and 
provided,  before  the  publication  of  said  book,  duly  deposited  in  the 
mail  within  the  United  States,  to  wit,  at  the  city  of  St.  Paul,  Minne- 
sota, addressed  to  the  librarian  of  Congress  at  Washington,  District 
of  Columbia,  a  printed  copy  of  the  title  of  said  book;  and,  in  accord- 
ance with  the  law,  on  the  second  day  oi  November,  i893,  not  later  than 
the  day  of  publication  thereof,  duly  deposited  in  the  mail  within  the 
United  States,  to  wit,  at  the  city  of  St.  Paul,  Minnesota,  addressed 
to  the  librarian  of  Congress  at  Washington,  District  of  Columbia, 
two  copies  of  such  copyright  book,  and  that  such  copyright  book 
was  printed  from  plates  made  from  type  set  within  the  limits  of  the 
United  States. 

And  your  orator  further  alleges  and  shows  that  since  August,  iS91, 
it  has,  from  time  to  time,  made,  edited,  prepared  and  published 
and  thereupon  became  and  was  the  author  and  proprietor  of  a 
pamphlet,  book  or  work,  which  had  not  then  been  published,  entitled 
"  The  American  Digest,  United  States  Digest,  Third  Series  (^Monthly 
Advance  Sheets'),  No.  67,  September,  1891,"  and  generally  known  as 
and  called  The  American  Digest  Monthly,  September,  1891;  and  as 
such  author  and  proprietor  your  orator,  desiring  to  secure  a  copy- 
right upon  the  same  in  accordance  with  the  statute  of  the  United 
States  in  such  case  made  and  provided,  before  the  publication  of  said 
pamphlet  book,  duly  deposited  in  the  mail  within  the  United  States, 
to  wit,  at  the  city  of  St.  Paul,  Minnesota,  addressed  to  the  librarian 
of  Congress  at  Washington,  District  of  Columbia,  a  printed  copy  of 
the  title  of  said  pamphlet  book,  and,  in  accordance  with  the  law,  not 
later  than  the  day  of  publication  thereof,  duly  deposited  in  the  mail 
within  the  United  States,  to  wit,  at  the  city  of  St.  Paul,  Minnesota, 
addressed  to  the  librarian  of  Congress  at  Washington,  District  of 
Columbia,  two  copies  of  such  copyright  pamphlet  book,  and  that  such 
copyright  pamphlet  book  was  printed  from  plates  made  from  type 
set  within  the  limits  of  the  United  States.  {Here  follow  similar 
allegations  as  to  the  monthly  advance  sheets  Nos.  68  to  68  inclusive.) 

And  your  orator  further  alleges  and  shows  that  each  and  all  of 
said  permanent  or  complete  volumes  of  reports,  as  well  as  each  and 
all  of  said  advance  numbers  or  books,  embodied  in  said  several 
volumes,  were  prepared,  arranged  and  reported  by  and  under  the 
direction  of  your  orator,  and  each  of  said  volumes  and  advance 
numbers  or  books  contained  and  contains  a  large  amount  of  matter 

Court,  all  the  United  States  Circuit  lish  and  Canadian  Cases,  Memoranda 
and  District  Courts,  the  Courts  of  Last  of  Statutes,  Annotations  in  Legal  Peri- 
Resort  of  all  the  States  and  Territories,  odicals,  etc.  A  Table  of  the  Cases 
and  the  Intermediate  Courts  of  New  Digested,  and  a  Table  of  Cases  Over- 
York  State,  Pennsylvania,  Ohio,  Illi-  ruled.  Criticised,  Followed,  Distin- 
nois,  Indiana,  Missouri,  and  Colorado,  guished,  etc.,  During  the  Year. 
U.  S.  Court  of  Claims,  Supreme  Court  References  to  the  State  Reports  Given 
of  the  District  of  Columbia,  etc.,  as  Re-  by  an  Improved  Method  of  Topical 
ported  in  the  National  Reporter  System  Citation.  Prepared  and  Edited  by  the 
and  elsewhere  from  September  i,  1891,  Editorial  Staff  of  the  National  Reporter 
to  August  31,  1892.    With  Notes  of  Eng-  System." 

480  Volume  5. 


6363.  COPYRIGHT.  6363. 

original  with  your  orator,  all  of  which  was  and  is  the  private  property 
of  your  orator  as  the  author  and  proprietor  thereof,  and  your  orator 
applied  for,  and  as  such  author  and  proprietor  obtained,  the  copy- 
rights thereon  as  aforesaid. 

And  your  orator  further  alleges  and  shows  that  each  and  every  one 
of  said  volumes  of  reports,  as  well  as  each  and  every  of  said  advance 
numbers  or  books,  embodied  in  said  several  volumes,  were  prepared 
and  reported,  as  aforesaid,  with  great  labor  and  expense,  in  many 
instances,  from  the  original  cases  or  error-books,  containing  the 
processes,  pleadings,  proceedings,  evidence,  objectings,  rulings, 
decisions  and  exceptions,  and  from  the  original  points  or  arguments 
of  counsel,  and  in  all  cases  from  the  opinions  of  the  courts  or  judges 
delivering  judgment,  copies  of  which  were  obtained,  at  great  expense, 
by  your  orator,  immediately  upon  their  being  handed  down.  That 
each  of  said  volumes,  as  well  as  each  of  said  advance  numbers  or 
books  embodied  therein,  contains  a  great  number  of  the  opinions 
and  decisions  of  the  said  courts  of  judicature,  and  among  other 
additional  original  matter  your  orator  prepared  for  each  case  and 
decision  so  reported  a  syllabus  or  head-notes,  containing  a  brief 
statement  of  the  facts  and  points  of  law  decided  thereon,  and  also, 
in  many  of  the  cases,  preliminary  statements  of  the  facts  on  which 
the  decisions  were  made.  That  said  syllabi  or  head-notes  and  pre- 
liminary statements  of  facts  were,  except  where  prepared  by  the 
court  and  so  designated,  wholly  original  with  your  orator,  and  were 
made,  edited  and  published,  as  aforesaid,  in  said  advance  numbers 
as  speedily  as  possible,  and  in  most  instances  prior  to  any  other  pub- 
lication or  report  of  said  cases  within  the  United  States.  That  the 
syllabi  or  head-notes  to  all  the  cases  reported  in  each  permanent  or 
completed  volume  were  also,  by  your  orator,  alphabetically  arranged 
according  to  the  subject  matter  and  reprinted  as  an  index  at  the  end 
of  such  volume,  with  the  names  of  the  parties  to  the  cases  to  which 
they  belonged  and  a  reference  to  the  page  where  they  would  be 
found,  thus  making  for  each  volume  a  full  and  complete  digest  of 
the  points  decided  and  the  cases  reported  therein,  and  making  said 
volumes  or  works  convenient  and  of  great  value  to  all  persons 
desiring  to  use  the  same. 

And  your  orator  further  alleges  and  shows  that  the  American 
Digest  Monthly  of  your  orator  was  principally  composed  of  and  com- 
piled from  the  syllabi  or  head-notes  made  by  your  orator  of  the 
decisions  of  causes  reported  in  its  said  reports  taken  from  the 
advance  numbers  of  books  thereof  from  time  to  time  as  prepared, 
and  collected  and  arranged  under  their  proper  subjects  and  head- 
ings, to  which  they  referred  in  digest  form.  And  that  syllabi  or 
head-notes,  made,  edited  and  prepared  by  your  orator  for  its  said 
system  of  reports  and  advance  numbers,  were  made,  edited  and  pre- 
pared also  with  a  special  reference  to  their  fitness  and  adaptability 
for  use  as  digest  paragraphs  in  the  index  digest  to  each  complete 
volume  of  reports,  and  in  the  monthly  or  advance  digest  sheets  or 
pamphlets,  and  also  in  the  American  Annual  Digest,  or  permanent 
digest  for  the  year.  And  that  the  Annual  Digest  of  your  orator  for 
i2t92  was  principally  compiled  from  and  composed  of  the  syllabi  or 
5  E.  of  F.  P. —  31.  481  Volumes. 


6363.  COPYRIGHT.  6363. 

head-notes  of  the  Cases  originally  made,  edited  and  prepared  for  and 
published  in  the  advance  numbers  of  its  permanent  editions  of  its 
reporters,  and  which  were  from  time  to  time  reprinted  in  digest 
form  in  the  advance  numbers  or  monthly  parts  of  the  Digest,  from 
which,  and  from  the  advance  sheets  of  the  reporters,  they  were 
afterward  collected  and  rearranged  in  permanent  form  under  their 
appropriate  subjects  and  headings  in  the.  Annual  Digest  a^s  aforesaid. 
And  your  orator  further  alleges  and  shows  that,  by  the  original 
work  of  your  orator,  and  in  particular  by  the  original  syllabi  or 
head-notes,  said  volumes  of  reports  and  said  American  Annual  Digest^ 
as  well  as  the  advanced  numbers  or  books,  and  said  Monthly  Digest, 
became  and  were  convenient  and  were  of  great  value  to  all  persons 
desiring  to  use  the  same.  And  your  orator  further  alleges  and 
shows  that  it  has,  from  time  to  time,  printed  and  sold  a  large  num- 
ber of  said  volumes  and  the  said  respective  advance  numbers  or 
books  to  its  customers  and  subscribers,  amounting  to  several  thou- 
sand of  each  of  said  volumes,  with  the  advance  numbers  or  books, 
and  also  of  the  American  Digest,  with  its  monthly  advance  numbers 
or  books,  and  has  caused  to  be  printed  and  inserted  in  each  and  all 
of  said  copies  or  volumes,  as  well  in  the  permanent  and  complete 
books  or  editions  as  in  each  and  every  advance  number  and  book, 
on  the  back  of  the  title-page  of  each  and  all  the  complete  and  per- 
manent volumes  or  books,  and  on  the  title-page  of  each  and  all  the 
advance  numbers  or  books,  the  information  and  notice  of  such  copy- 
right as  required  by  law;  that  your  orator  has  never  sold  or  trans- 
ferred any  of  said  copyrights  of  said  books  or  works  or  advance 
numbers  or  books,  nor  any  interest  or  share  in  the  same  or  in  either 
of  them,  nor  authorized  the  defendant  to  publish  any  of-  said  volumes 
of  reports  or  any  portion  thereof,  or  extracts,  excerpts  or  abridge- 
ments thereof;  but  your  orator  was  and  is  the  sole  and  exclusive 
owner  of  the  stock,  and  the  proprietor  of  all  of  the  said  copyrights, 
and  has  the  sole  and  exclusive  right  to  publish  each  and  all  of  the 
said  syllabi  and  head-notes  and  preliminary  statement  of  facts  con- 
tained in  said  volumes  and  advance  numbers  or  books,  and  reprinted 
in  S3.\6.  Annual  SiXxd  Monthly  Digests  as  aforesaid;  that  your  orator 
had  and  has  the  exclusive  right  to  all  the  contents  contained  in  each 
and  all  of  said  books,  volumes  or  works,  and  in  all  of  said  advance 
numbers  or  books,  such  as  the  head-notes,  head-lines  or  catch-words, 
preliminary  statements  of  facts,  abstracts  of  points  or  arguments  of 
counsel,  the  arrangement  and  division  of  the  cases  into  volumes, 
the  notes  of  authorities  added  to  any  of  the  cases  as  reported,  the 
indices  or  index-digests  in  and  for  each  completed  or  permanent 
volume  of  reports,  and  of  all  other  matter  excepting  merely  the 
opinions  or  decisions  of  the  said  courts;  and  the  said  copyright  of 
the  said  completed  or  permanent  volumes,  together  with  the  said 
respective  advance  numbers  or  books  thereof,  as  well  as  the  said 
Annual  and  Monthly  Digests,  are  of  great  value,  to  wit,  of  the  value 
of  three  hundred  thousand  dollars,  and  the  loss  and  damage  to  your 
orator  by  reason  of  the  violations  thereof  is  not  less  than  the  same 
amount. 

Nevertheless,   as   your    orator    further    alleges    and    shows,    the 

482  Volume  5. 


6363.  COPYRIGHT.  6363. 

defendant,  in  its  business  of  publishing  and  selling  law-books, 
reports  and  digests,  has  for  several  years  past  and  now  does  publish 
and  sell  a  volume,  annually,  known  as  and  called  the  General  Digest, 
of  which  it  publishes  and  issues  advance  sheets  and  numbers  semi- 
monthly, which  said  digest  and  advance  numbers  is  published  and 
sold  in  competition  with  the  said  copyright  books  and  advance  num- 
bers or  books  of  your  orator,  including  its  Annual  and  Monthly 
Digests.  That  the  said  defendant,  well  knowing  that  the  syllabi  or 
head-notes  of  your  orator  were  made,  edited  and  prepared  by  your 
orator  with  special  reference  to  their  adaptability  and  fitness  for  use 
as  digest  items,  and  that  your  orator  had  been  so  using  and  intended 
so  to  use  the  said  syllabi  or  head-notes,  did,  at  different  times  during 
the  latter  portion  of  the  year  i8Pi,  and  the  year  \Z92,  without  the 
consent  of  your  orator,  reprint,  publish  and  sell  at  the  cities  of 
Rochester,  New  York,  and  elsewhere  in  the  state  of  New  York,  and 
in  the  said  northern  district  of  Neii>  York,  and  all  over  the  United 
States,  and  did  continuously  since  and  still  does  publish  and  expose 
to  sale  and  sell  in  large  numbers,  advance  numbers  of  their  General 
Digest,  containing  statements  of  facts,  syllabi  and  head-notes  taken, 
copied  and  pirated  from  the  said  several  advance  numbers  or  books 
thereof  of  your  orator,  as  well  as  from  the  said  Annual  and  Monthly 
Digests. 

And  your  orator  further  alleges  and  shows,  on  information  and 
belief,  that  the  defendant,  in  preparing  its  General  Digest  for  the 
year  \%92,  has  used  and  employed  principally,  as  matter  therefor,  the 
head-notes  or  points  issued  and  published  in  its  advance  numbers  from 
time  to  time,  which  head-notes  or  points  are  largely  and  to  a  great 
extent  copies  of  and  piracies  upon  the  copyright  syllabi,  head-notes 
or  points  of  your  orator,  made,  prepared  and  edited  by  your  orator 
and  published  in  its  volumes  and  advance  numbers  of  books,  as 
aforesaid.  And  your  orator  further  alleges  and  shows  that  the 
defendant  has  advertised,  for  some  time  since,  the  publication  of  its 
General  Digest  for  \2>92,  and  now  threatens  to  and  as  your  orator  is 
informed  and  verily  believes  is  about  to  issue,  publish  and  sell  the 
same,  so  containing  infringements  upon  copies  of  and  piracies  of  the 
original  copyright  matter  of  your  orator,  as  aforesaid,  to  the  great 
injury  and  irreparable  damage  of  your  orator  in  its  business,  and  for 
which  it  cannot  be  compensated  by  damages  in  an  action  at  law. 
That  in  preparing  said  General  Digest  for  publication  and  in  prepar- 
ing the  advance  numbers  thereof,  the  defendant  has  substantially 
copied  the  head-notes  and  syllabi,  as  previously  prepared  and  pub- 
lished by  your  orator,  as  aforesaid,  resorting  to  the  devices,  common 
in  this  sort  of  piracy,  of  transposing  clauses,  sentences  and  para- 
graphs, using  synonyms  and  making  colorable  alterations,  while 
always  repeating  the  substance,  often  using  the  exact  words,  and 
frequently  even  entire  sentences  and  entire  head-notes  verbatim  from 
said  original  works  of  your  orator,  and  in  many  instances  omitting  to 
correct  even  the  inaccuracies  and  errors  therein,  and  also  in  availing 
itself  of  the  original  work,  method  and  ideas  of  your  orator  in  mak- 
ing and  preparing  your  orator's  head-notes  and  in  digesting  the 
cases,  without  following  the  exact  language  used  by  your  orator,  so 

483  Volume  5- 


6363.  COPYRIGHT.  6363. 

that  thereby,  to  the  great  damage  of  your  orators,  the  defendant  was 
and  is  enabled  to  prepare,  publish  and  sell  its  pirated  publications 
with  greater  ease  and  accuracy,  and  at  far  less  expense ;  all  of  which 
infringements,  colorable  alterations,  copying,  piracies  and  transposi- 
tions, will  more  fully  appear  upon  an  examination  and  comparison  of 
said  General  Digest  and  advance  numbers  thereof  with  said  volumes 
and  advance  numbers  or  books  of  your  orator,  which  your  orator  is 
ready  to  produce  as  this  honorable  court  may  direct.  That  the  said 
General  Digest^  so  about  to  be  published,  and  the  advance  numbers 
thereof  of  the  defendant  are  infringements  of  and  piracies  upon  the 
copyrights  of  your  orator,  and  the  said  books  were  made  and 
intended  by  the  defendant  to  take  the  place  of  and  as  far  as  possible 
supersede  the  said  books  and  advance  numbers  of  your  orator,  and 
especially  the  said  Annual  and  Monthly  Digests  of  your  orator,  and 
by  means  of  the  various  arts  and  devices  aforesaid  the  defendant  has 
been  and  is  selling  large  numbers  of  its  said  advance  sheets  of  num- 
bers of  its  Digest  to  persons  who  would  otherwise  have  bought  or 
would  now  buy  the  said  volumes  and  advance  numbers  of  your  orator, 
and  especially  its  Annual  dind  Monthly  Digests  for  iW2,  to  its  great 
loss  and  damage;  and  the  defendant,  by  means  of  the  art  and  devices 
aforesaid,  unless  restrained  by  this  honorable  court,  will  sell  large 
numbers  of  their  said  General  Digest  for  i?>92  to  persons  who  would 
otherwise  buy  the  said  Annual  Digest  of  your  orator,  to  its  great  loss 
and  damage;  all  of  which  acts  and  doings  of  the  defendant  are  con- 
trary to  equity  and  good  conscience,  and  tend  to  the  manifest  wrong 
and  injury  of  your  orator  in  the  premises. 

In  consideration  whereof  and  forasmuch  as  your  orator  is  with- 
out adequate  remedy,  save  in  a  court  of  equity,  your  orator  prays 
this  honorable  court  to  issue  its  writ  of  subpoena,  in  due  form  of  law 
and  according  to  the  course  and  practice  of  the  court,  directed  to 
the  said  Lawyers'  Co-operative  Publishing  Company,  the  defendant,  as 
aforesaid,  commanding  it  at  a  certain  day  and  under  a  certain 
penalty  to  be  therein  specified  to  appear  before  this  honorable  court 
to  answer  all  and  singular  the  matters  and  things  hereinbefore  set 
forth  and  complained  of,  and  especially  to  answer  and  set  forth: 

1.  The  date  of  the  publication  of  each  of  the  said  advance  num- 
bers of  said  General  Digest,  issued  since  August,  i89J,  by  the 
defendant. 

2.  The  number  of  copies  published  of  each  said  advance  number. 

3.  The  number  of  subscribers  to  said  General  Digest  for  the  year 
\W2,  and  how  many  said  advance  numbers  of  said  Digest  have  been 
sold  and  the  prices  at  which  they  were  severally  sold. 

4.  How  many  orders  for  said  General  Digest  have  been  received  by 
the  defendant,  and  at  what  price  per  volume. 

5.  How  many  of  each  of  said  advance  numbers  of  said  Digest  are 
still  in  the  possession  and  under  the  control  of  the  defendant. 

6.  How  many  volumes  of  said  complete  General  Digest  have  been 
made  or  prepared  for  publication  and  sale,  or  are  now  being  made  or 
prepared  therefor  or  are  now  in  the  possession  or  under  the  control 
of  the  defendant.  And  to  answer  all  the  other  matters  herein  com- 
plained of  as  specifically  as  if  thereto  specifically  interrogated. 

484  Volume  5. 


6364.  COPYRIGHT.  6364. 

But  the  said  answers  to  the  foregoing  interrogatories  and  to  this 
bill  of  complaint  need  not  be  under  oath,  an  answer  under  oath  being 
hereby  expressly  waived. 

And  your  orator  prays  that  the  defendant  may  be  restrained  by 
injunction  from  publishing,  selling  or  exposing  for  sale,  or  causing  or 
being  in  any  way  concerned  in  the  publishing,  selling  or  exposing  for 
sale,  said  General  Digest  for  \W2,  now  threatened  to  be  issued,  pub- 
lished and  sold  by  the  defendant,  or  otherwise  disposing  thereof,  and 
from  publishing,  selling  or  exposing  for  sale,  or  causing  or  being  in  any 
way  concerned  in  the  publishing,  selling  or  exposing  for  sale,  or  other- 
wise disposing  of  any  of  said  advance  numbers  of  said  digest  or  copies 
thereof,  hereinbefore  complained  of,  and  that  all  of  said  books  pub- 
lished, as  aforesaid,  or  so  about  to  be  published,  issued  or  sold  by  the 
defendant,  and  the  stereotype  plates  thereof  be  declared  forfeited  to 
and  for  the  benefit  of  your  orator,  and  that  the  defendant  be  required 
to  surrender  and  deliver  the  same  to  your  orator,  and  be  decreed  to 
render  an  account  of  all  of  said  books  or  numbers  published  or  about 
to  be,  and  of  all  that  have  been  sold,  and  to  pay  the  same,  besides  the 
damages  suffered  from  such  unlawful  publications  and  the  costs  of  this 
suit  to  your  orator,  and  that  your  orator  may  have  such  other  and 
further  relief  as  the  nature  and  circumstances  of  the  case  may  require 
and  as  to  this  court  shall  seem  just  and  equitable. 

Pierre  E.  Du  Bois, 

Solicitor  for  Complainant. 
£.  Countryman^ 
Of  Counsel. 
United  States  of  America,  ) 
District  of  Minnesota.  \ 

Peyton  Boyle,  being  duly  sworn,  says  that  he  is  the  vice-prestaent  of  tne 
corporation  complainant  above  named,  and  is  familiar  with  its  busi- 
ness; that  he  has  read  the  foregoing  bill  of  complaint  and  knows  the 
contents  thereof;  that  the  same  is  true  to  the  knowledge  of  deponent, 
except  as  to  the  matters  therein  stated  to  be  alleged  on  information 
and  belief,  and  that  as  to  those  matters  he  believes  it  to  be  true. 

Peyton  Boyle. 

Subscribed  and  sworn  to  before  me  this  twentieth  day  of  December^ 
lS92.  Ambrose  Tighe, 

U.  S.  Commissioner,  District  of  Minnesota. 

c.  Of  a  Dramatic  Composition. 
Form  No.  6364.' 

Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Penn- 
sylvania.    In  Equity. 

To  the  Honorable  the  Judges  of  the  Circuit  Court  0/  the  United  States 
for  the  Eastern  District  of  Pennsylvania,  sitting  as  a  Court  of 
Equity: 
Giulio  Ricordi,  Luigi  Erba,  GiuseppePiza,  Erminie  Bozotti,  Francesco 

1.  This   form  was  obtained  through     reported,  as  the  decree  and  injunction 
the  courtesy  of  Rowland  Cox,  Esq.,  of     were  obtained  by  consent, 
the  New  York  bar.     The  case  was  not        Precedent.  —  See  also  a  precedent  in 

485  Volume  5. 


6364.  COPYRIGHT.  6364. 

Guecchi,  Luigi  Origoni,  Antonio  Griecchi,  Laura  Giulini,  Antonio  Ri- 
cordi,  Amelia  Ricordi,  Giuseppe  Rico?'di,  Pompeo  Ricordi,  of  Milan,  in 
the  kingdom  oi  Italy,  and  Emilio  Ricordi,  oi  Florence,  in  said  kingdom, 
copartners  engaged  in  business  at  said  Milan  under  the  firm  name  of 
G.  Ricordi  &•  Co.,  all  of  whom  are  subjects  of  the  king  of  Italy  and 
aliens,  bring  this  their  bill  of  complaint  against  Gustav  Hinrichs,  of 
the  city  of  Philadelphia,  in  the  county  of  Philadelphia,  in  the  state  of 
Pennsylvania,  a  citizen  of  said  state  and  of  the  United  States,  and  an 
inhabitant  of  the  eastern  district  of  Pennsylvania  and  hereinafter  desig- 
nated defendant. 

And  thereupon  your  orators  complain  and  say  that  heretofore  and 
before  the  tenth  day  oi  January,  i89S,  Giacomo  Puccini  via.s  a  subject 
of  His  Majesty  the  King  of  Italy,  which  was  then  a  foreign  state  or 
nation  which  permitted  to  citizens  of  the  United  States  of  America  the 
benefit  of  copyright  on  substantially  the  same  basis  as  its  own  sub- 
jects, which  condition  aforesaid,  to  wit:  the  existence  of  reciprocal 
rights  concerning  copyrights  between  the  United  States  of  America  and 
tht  Kingdom  of  Italy,  was,  before  said  tenth  day  oi  January,  i893,  de- 
termined by  the  president  of  the  United  States  by  proclamation  duly 
made  and  published  according  to  law. 

And  your  orators  further  say  that  the  said  Giacomo  Puccini  was 
before  the  said  tetith  day  oi  January,  iS93,  the  author,  inventor,  com- 
poser and  proprietor  of  a  certain  dramatic  composition  entitled: 
'"''Manon  Lescaut  Dramma  Lirico  in  Jf  Atti  di  Giacomo  Puccini,"  which 
was  by  your  orator  duly  copyrighted  by  compliance  in  all  things  with 
the  statutes  of  the  United  States  relating  to  copyrights  as  hereinafter 
more  fully  set  forth. 

And  your  orators  further  say  that  before  the  copyrighting  of  the 

Henderson  v.  Tompkins,  60  Fed.  Rep.  It  states,  in  terms,  that  the  defendant 

765,  where  the  court,  in  refusing  to  sus-  adopted     complainant's     refrain     and 

tain    the    demurrer    on    the    grounds  chorus,  but  contains  no  express  allega- 

stated,  took  occasion   to   quote  with  a  tion   touching  the  music   which   infer- 

special  commendation  the  following  ex-  entially    accompanied    them.     As    the 

tract  from  Drone  on  Copyright:  "  If  it  "  matter  stands,  the  court  is  unable  to  see 

(the  matter  infringed  upon)  "  has  merit  whether  or  not  the  music  formed  a  part 

and  value  enough  to  be  the  object  of  of  the  complainant's  song,   and,   if  it 

piracy,   it  should  also  be  of  sufficient  did,  whether  the  music   or  the  words 

importance  to  be  entitled  to  protection."  were  the  novel  or  essential  feature,  and 

Further  discussing  the  demurrer,  the  whether    the    defendant    adopted    the 

court  continues:    "  The   bill   describes  music  or  only   the  words.     Therefore 

the  song  in  question  as  a  portion  of  a  the  court  is  unable  to  ascertain,  from 

certain  dramatic  composition  and  as  an  the  allegations  of  the  bill,  whether  in 

important  and  valuable  part   thereof,  fact  the  defendant  did  adopt  any  essen- 

It  does  not  say  whether  by  the  word  tial  part  of  the  complainant's  dramatic 

'song'  is  intended    merely   the   words  composition;    and    the    bill    must    be 

of  the  song  set  out  in  the  bill,  or  whether  amended,  to  make  the  case  clear  in  this 

it    includes   the   music   which   accom-  particular,  before  we  can  proceed  fur- 

panies  the  words,  and  which  with  the  ther  with  it.     As  this  difficulty  was  not 

words    constitutes    a    '  song,'    in     its  noticed  by  either  party,  neither  is  enti- 

more  customary  sense.     The  fact  that  tied  to  any  consideration  on  the  ques- 

it  is   part  of  a   dramatic   composition  tion    of    costs.      If    the     complainant 

leads  the  inference  in  favor  of  the  lat-  desires  to  amend,  he  may  do  so,  or  he 

ter;  but  on  this  point  the  bill  should  be  may  dismiss  the  bill,  but  in  either  case 

specific.    The  difficulty  becomes  a  prac-  without  costs  to  either  party." 
tical  one  on  pursuing  the  bill  further. 

486  Volume  5. 


6364.  COPYRIGHT.  6364. 

said  composition  and  before  the  tenth  day  oi  January ,  iS93,  the  said 
Puccini,  for  a  good  and  valuable  consideration,  transferred,  assigned 
and  sold  the  same  and  all  his  right,  title  and  interest  therein  to  your 
orator  and  your  orator  became  seised  of  all  the  rights  of  said  Puccini 
in  and  to  the  said  composition,  and  became  the  proprietor  thereof 
and  entitled,  under  the  statutes  of  the  United  States,  to  copyright 
the  same. 

And  your  orators  further  say  that  before  the  puBlication  of  said 
composition  in  the  United  States,  and  before  the  publication  thereof 
in  any  foreign  country,  and  for  the  purpose  of  copyrighting  the  same, 
your  orators,  being  the  proprietors  thereof,  did,  on  the  tenth  day  of 
January,  i89S,  deposit  in  the  mail  within  the  United  States,  addressed 
to  the  librarian  of  Congress,  Washington,  District  of  Columbia,  a 
printed  copy  of  the  title  of  said  composition  for  which  they  desired 
a  copyright,  and  did  also,  before  the  date  of  publication  thereof 
in  the  United  States,  and  before  the  date  of  publication  thereof 
in  any  foreign  country,  deposit  in  the  mail  within  the  United 
States,  addressed  to  the  librarian  of  Congress,  Washington,  District 
of  Columbia,  two  complete  printed  copies  of  the  said  composition, 
and  that  the  librarian  did  record  the  title  of  the  said  composition 
in  a  book  kept  for  that  purpose  in  pursuance  of  the  statutes  of 
the  United  States  in  such  cases  made  and  provided,  and  did 
receive  and  accept  from  your  orator  the  sum  of  one  dollar  for 
recording  the  said  title,  and  the  record  of  which  title  was  by  the 
librarian  thus  made  on  the  e/erenth  day  of  January,  i89-3,  and  which 
title  was  in  these  words:  '■'■  Manon  Lescaut  Dramma  Lirico  in  4  Atti 
di  Giacomo  Puccini." 

And  your  orators  further  say  that  the  composition  produced  by 
the  said  Puccini,  as  aforesaid,  and  of  which  your  orators  became  the 
proprietors,  and  which  was  by  them  copyrighted,  as  aforesaid,  is  a 
dramatic  composition  of  great  artistic  value;  that  the  same  was  pub- 
lished in  the  United  States  of  America  and  elsewhere  on  the  said 
tenth  day  oi  January,  i893. 

And  your  orators  further  say  that  they  gave  notice  of  their  copy- 
right of  said  composition  entitled  as  aforesaid  by  printing  and  inscrib- 
ing upon  some  visible  portion  of  each  copy  of  said  composition  the 
following  words:     "  Copyright  1893  by  G.  Ricordi  df  Co." 

And  your  orators  say  that  having  in  all  things  complied  with 
the  conditions  and  provisions  of  the  statutes  of  the  United  States 
in  such  case  made  and  provided,  as  aforesaid,  they  acquired  and 
obtained  and  there  was  then  on  said  eleventh  day  of  January,  i893,  to 
them  granted  a  good  and  valid  copyright  in  the  United  States  for 
and  upon  said  composition  whereby  they  became  entitled  and  acquired 
and  there  was  in  them  vested  the  sole  liberty  of  performing,  print- 
ing, reprinting,  publishing,  copying,  executing,  finishing  and  vending 
the  said  composition,  for  a  period  of  twenty-eight  years  from  the 
eleventh  day  of  January,  \W3,  and  which  copyright  thus  by  your  orators 
obtained  and  to  them  granted  has  continued  in  force  from  the  eleventh 
day  oi  January,  \W3,  and  is  now  in  force,  and  that  your  orators  are 
now  and  have  always  been  the  owners  thereof. 

And  your  orators  further  say,  on  information  and  belief,  that  the 

487  Volume  5. 


6364.  COPYRIGHT.  6364. 

said  defendant  said  Gustav  Hinrichs,  intending  to  injure  your  orators 
and  to  deprive  them  of  the  privileges  which  they  were  to  receive 
from  the  enjoyment  of  their  said  copyright,  has  unlawfully  and  with- 
out their  consent,  within  said  eastern  district  of  Pennsylvania,  and 
before  the  filing  of  this  bill,  and  since  the  said  tenth  day  of  January, 
iS93,  and  since  your  orators'  rights  in  the  premises  aforesaid  were 
acquired,  and  since  the  recording  of  the  title  of  said  copyrighted 
composition,  caused  to  be  publicly  performed  and  represented  by 
others  the  said  copyrighted  dramatic  composition  of  your  orators 
and  threatens  and  avows  a  purpose  to  continue,  without  your  orators' 
consent,  and  in  violation  of  their  rights,  to  cause  to  be  publicly  per- 
formed or  represented  by  others  the  said  copyrighted  composition, 
and  this  notwithstanding  your  orators'  protest  and  demand  in  the 
premises. 

And  your  orators  say,  on  information  and  belief,  that  the  dramatic 
composition  by  the  said  Gustav  Hinrichs  thus  caused  to  be  publicly 
performed  and  represented,  the  performance  of  which  is  hereinbe- 
fore alleged  to  be  an  infringement  of  your  orators'  copyright,  is  in 
all  things  substantially  the  same  as  your  orators' copyrighted  compo- 
sition, and  in  all  things,  to  all  the  intents  and  purposes,  an  actual 
copy  and  reproduction  thereof  which  has  been  held  out  to  the  public 
by  the  said  Gustav  Hinrichs  to  be  your  orators'  composition  aforesaid, 
produced  by  the  said  Puccini. 

And  your  orators  further  show  unto  your  honors  that  forasmuch 
as  they  can  have  no  adequate  relief  except  in  this  honorable  court, 
and  to  the  end  that  the  said  defendant,  Gustav  Hinrichs,  may  answer 
all  and  singular  the  premises  and  things  hereinbefore  set  forth  and 
complained  of,  and  that  the  said  defendant,  said  Gustav  Hinrichs, 
may  be  forever  enjoined  and  restrained  by  injunction  from  in  any 
and  every  form  or  manner,  directly  or  indirectly,  performing  and 
representing  the  said  copyrighted  dramatic  composition  of  your 
orator,  and  from,  directly  or  indirectly,  in  any  form  or  manner  vio- 
lating your  orator's  exclusive  right  under  said  copyright,  and  that  he 
may  be  ordered  to  render  an  account  of  the  profits  arising  from  the 
unauthorized  performance  of  said  dramatic  composition,  as  far  as 
any  profits  have  been  made,  and  required  to  pay  over  such  profits 
to  your  orator  and  to  pay  to  your  orators  their  costs  and  disburse- 
ments in  this  suit,  and  that  your  orator  may  have  such  further  relief 
in  the  premises  as  to  this  honorable  court  may  seem  meet  and  equita- 
ble, and  as  the  nature  and  circumstances  of  the  case  may  require. 

And  your  orators  pray,  also,  for  a  provisional  or  preliminary 
injunction  as  herein  prayed  for  in  respect  of  a  perpetual  injunction, 
and  for  such  further  relief  as  the  equity  of  the  case  may  require  and 
as  to  your  honors  may  seem  meet. 

And  finally,  to  the  enc^  that  equity  may  be  done  and  that  the  relief 
herein  prayed  for  and  all  other  relief  that  it  may  be  righteous  in  the 
premises  to  administer  may  be  afforded  your  orators,  may  it  please 
your  honors  such  relief  fully  to  grant  and  to  grant  unto  your  orators 
a  writ  of  subpoena  ad  respondendum  issuing  out  of  and  under  the 
seal  of  this  honorable  court,  directed  to  the  said  Gustav  Hinrichs, 
commanding  him  to  appear  and  make  answer  to  this  bill  of  com- 

488  Volume  5. 


6365.  COPYRIGHT.  6365. 

plaint,  and  to  perform  and  abide  by  such  order  and  decree  herein  as 
to  this  court  shall  seem  just. 

And  your  orators,  as  in  duty  bound,  will  ever  pray. 

Rowland  Cox, 

Solicitor  for  Complainants. 
Rowland  Cox., 

Of  Counsel  for  Complainants. 

d.  Of  an  Engraving. 

Form  No.  6365.' 

Circuit  Court  of  the  United  States  for  the  District  of  New  Jersey. 
In  Equity. 

To  the  Honorable  the  Judges  of  the  Circuit  Court  of  the  United 
States  for  the  District  of  New  Jersey,  sitting  as  a  Court  of 
Equity: 

George  Edward  Briscoe  Eyre,  W.  Hugh  Spottiswoode  and  Cyril  A, 
Spottiswoode,  all  of  the  city  of  London,  England,  copartners  engaged 
in  business  at  said  city  of  London,  under  the  firm  name  and  style  of 
Eyre  &"  Spottiswoode,  and  all  of  whom  are  subjects  of  Her  Majesty  the 
Queen  of  Great  Britain  and  Ireland,  and  all  of  whom  are  aliens,  bring 
this  their  bill  of  complaint  against  the  American  Lithographic  Company, 
a  corporation  organized  and  existing  under  and  by  virtue  of  the  laws 
of  the  state  of  New  Jersey,  and  having  its  principal  place  of  busi- 
ness at  South  Orange  in  said  state  of  New  Jersey,  and  hereinafter 
designated  the  defendant. 

And  thereupon  your  orators  complain  and  say  that  heretofore  and 
before  the  t^veniy-second  day  of  September,  iWl,  Charles  John  Tompkins 
was  a  subject  of  Her  Majesty  the  Queen  of  Great  Britain  and  Ireland, 
and  was  the  author,  inventor,  designer  and  proprietor  of  a  certain 
engraving  by  your  orators  copyrighted  as  hereinafter  set  forth,  and 
entitled  '''■Little  Lord  Fauntleroy,  an  engraving  in  pure  mezzo-tint  by  Chas. 
J.  Tompkins  from  the  original  painting  of  James  Sant,  royal  academician." 

And  your  orators  further  say  that  before  the  copyrighting  of 
the  said  engraving  and  before  the  twenty-second  day  of  September,  iS91, 
the  said  Tompkins,  for  a  good  and  valuable  consideration,  transferred, 
assigned  and  sold  the  same  and  all  his  rights,  title  and  interest 
therein  to  your  orators,  and  your  orators  became  seised  of  all  the 
rights  of  the  said  Tompkins  in  and  to  the  said  engraving  and  became 
the  proprietors  thereof  and  entitled,  under  the  statutes  of  the  United 
States,  to  copyright  the  same. 

And  your  orators  further  say  that  before  the  publication  of  said 
engraving  in  the  United  States,  and  before  the  publication  thereof  in 
any  foreign  country,  and  for  the  purpose  of  copyrighting  the  same,  your 
orators,  being  the  proprietors  thereof,  did  on  the  twenty-second  day  of 
September,  iS91,  deposit  in  the  mail  within  the  United  States, 
addressed    to    the    librarian  of  Congress  at  Washington,  District  of 

1.  This  form  was  obtained  through  the     as  the  decree  and  injunction  were  ob- 
courtesy  of  Rowland  Cox,  Esq.,  of  the     tained  by  consent. 
New  York  bar.  The  case  is  not  reported. 

489  Volume  5. 


6365.  COPYRIGHT.  6365. 

Columbia,  a  printed  copy  of  the  title  of  said  engraving  for  which  they 
desired  a  copyright,  and  did,  also,  before  the  date  of  publication 
thereof  in  the  United  States,  and  before  the  date  of  publication 
thereof  in  any  foreign  country,  deposit  in  the  mail  within  the  United 
States,  addressed  to  the  librarian  of  Congress  at  Washington,  District 
of  Columbia,  two  copies  of  the  said  engraving,  and  that  the  librarian 
of  Congress  did  record  the  title  of  the  said  engraving  in  a  book  kept 
for  that  purpose  in  pursuance  of  the  statutes  of  the  United  States  in 
such  case  made  and  provided,  and  did  receive  and  accept  from  your 
orators  the  sum  of  one  dollar  for  recording  the  said  title,  and  the 
record  of  which  title  was  by  the  librarian  thus  made  on  the  twenty- 
third  C^-a,^  of  September,  iS91,  and  which  title  was  in  these  words,  to 
wit :  '  '•Little  Lord  Fauntleroy,  an  engraving  in  pure  mezzo-tint  by  Chas.  J. 
Tompkins  from  the  original  painting  of  James  Sant,  royal  academician." 

And  your  orators  further  say  that  they  gave  notice  of  their  copy- 
right of  said  engraving  entitled  as  aforesaid  by  printing  and  inscrib- 
ing upon  some  visible  portion  of  each  copy  of  said  engraving  the 
following  words  and  letters,  to  wit:  '^  Copyright,  1891,  by  Eyre '^ 
Spottiswoode." 

And  your  orators  further  say  that  having  in  all  things  complied 
with  the  conditions  and  provisions  of  the  statutes  of  the  United 
States  in  such  case  made  and  provided,  as  aforesaid,  they  acquired 
and  obtained  and  there  was  then  granted  a  good  and  valid  copyright 
in  the  United  States  for  and  upon  said  engraving  whereby  they 
became  entitled,  and  there  was  in  them  vested,  the  sole  liberty  of 
printing,  reprinting,  publishing,  copying,  executing,  finishing  and 
vending  the  said  engraving  for  a  period  of  twenty-eight  years  from 
the  twenty-third  <\di.y  of  September,  iS91,  and  which  copyright  thus  by 
your  orators  obtained  and  to  them  granted  has  continued  in  force 
from  the  said  twenty-third  day  of  September,  iS91,  and  is  now  in  force, 
and  that  your  orators  are  now  and  have  always  been  the  owners 
thereof. 

And  your  orators  further  say  that  the  said  engraving  produced  by 
the  said  Tompkins,  as  aforesaid,  and  of  which  they  became  the 
proprietors  and  which  was  by  them  copyrighted,  is  a  work  of  great 
excellence  and  of  great  artistic  value,  and  that  the  same  has  been, 
since  the  said  copyright  was  obtained,  for  sale  in  the  United  States  to 
the  public  at  a  reasonable  price,  and  your  orators  have  been  and  are 
able  and  desirous  of  supplying  the  public  in  the  United  States  and 
elsewhere  with  copies  of  the  said  engraving. 

And  your  orators  further  say  that  the  said  engraving  was  made 
from  the  original  painting  by  James  Sant,  an  eminent  English  painter, 
entitled  '■'■Little  Lord Fauntleroy,"  with  the  knowledge  and  acquiescence 
of  said  Sant,  the  said  Tompkins  having  been  employed  to  produce  the 
said  engraving  by  reason  of  his  exceptional  talent  and  ability  as  an 
engraver,  and  the  said  engraving,  your  orators  aver,  is  a  work  not 
only  of  great  artistic  value,  but  of  unmistakable  originality.^ 

1.  Originality  of  Work.  —  The  bill  ment  that  the  petitioner  is  "  the  author, 
should  show  the  existence  of  facts  of  inventor,  designer  and  proprietor  of  a 
originality  of  intellectual  production,  photograph  "  of  a  person,  which  photo- 
thought  and  conception,  and  an  aver-    graph  is  alleged  to  be  copyrighted,  is  not 

490  Volume  5. 


6385.  COPYRIGHT.  6305. 

And  your  orators  further  say,  on  information  and  belief,  that  the 
said  defendant,  American  Lithographic  Company^  is  engaged  in  business 
in  the  manufacture  and  sale,  among  other  things,  of  lithographs,  aad 
that,  well  knowing  the  premises  and  the  rights  secured  unto  your 
orators,  as  aforesaid,  under  the  statutes  relating  to  copyrights,  since 
your  orators'  rights  were  acquired  as  aforesaid,  and  wholly  without 
your  orators'  consent  and  in  violation  of  their  rights  in  the  premises 
aforesaid,  and  in  violation  of  your  orators'  said  copyright,  the  said 
defendant,  said  American  Lithographic  Company,  has  engraved,  etched, 
worked,  copied,  printed,  published  and  sold  a  large  number  of  litho- 
graphic pictures  copied  from  your  orators'  said  copyrighted  engrav- 
ing, and  has,  in  violation  of  your  orators'  rights  in  the  premises 
aforesaid,  printed,  reprinted,  copied,  executed,  finished  and  vended 
your  orators'  said  copyrighted  picture  and  the  subject  of  your  orators' 
said  copyright  in  violation  and  infringement  of  your  orators'  rights 
in  the  premises  arising  under  the  statutes  of  the  United  States  con- 
cerning copyrights,  and  in  violation  of  the  said  copyright  obtained 
and  secured  and  owned  by  your  orators  as  aforesaid,  and  continues 
so  to  do. 

And  your  orator  further  shows  unto  your  honors  that  forasmuch  as 
he  can  have  no  adequate  relief  except  in  this  honorable  court,  and  to 
the  end  that  the  said  defendant,  said  American  Lithographic  Company, 
may  answer  all  and  singular  the  premises  and  things  hereinbefore  set 
forth  and  complained  of,  and  that  the  said  defendant,  said  American 
Lithographic  Company,  may  be  forever  enjoined  and  restrained  by  in- 
junction from  printing  and  from  publishing  and  from  importing  and 
from  selling  and  from  exposing  for  sale  any  copy  or  copies  of  said 
engraving  by  your  orators  copyrighted  as  aforesaid  and  entitled 
^^ Little  Lord Fauntleroy,"  etc.,  which  it  has  etched,  engraved,  worked, 
copied,  printed  and  published,  and  in  every  way  from  infringing  your 
orators'  said  copyright  and  from  violating  your  orators'  exclusive 
rights  secured  by  them  as  hereinbefore  set  forth,  and  that  it  may  be 
ordered  to  render  an  account  of  the  profits  arising  from  the  sale  of 
said  piratical  copies  of  said  engraving,  as  far  as  any  profits  have  been 
made,  and  required  to  pay  over  such  profits  to  your  orators  and  to 
pay  to  your  orators  their  costs  and  disbursements  in  this  suit,  and  that 
your  orators  may  have  such  further  relief  in  the  premises  as  to  this 
honorable  court  may  seem  meet  and  equitable,  and  as  the  nature  and 
circumstances  of  the  case  may  require. 

And  your  orators  pray,  also,  for  a  provisional  or  preliminary  in- 
junction as  herein  prayed  for  in  respect  of  a  perpetual  injunction,  and 
for  such  further  relief  as  the  equity  of  the  case  may  require  and  to 
your  honors  may  seem  meet. 

And  finally,  to  the  end  that  equity  may  be  done  and  that  the  relief 

sufficient.       Falk  v.  City  Item  Printing  tied  'Photograph  No.  2j  of  Lillian  Rus- 

Co,  79  Fed.  Rep.  321.     But   in    Y^Wv.  sell,    by  J.    B.   Falk,  New    Yorh,"'    is 

Schumacher,  48  Fed.  Rep.   222,  it   was  sufficient,  without   entering  into  a  de- 

heldihat  an  allegation  thatthecomplain-  tailed  description  of  the  method  adopted 

ant  "  is   the  author,  inventor,  designer  in  taking  the  photograph,  nor  was  the 

and  proprietor  of  a  certain   photograph  complainant  required  to  attach  a  copy 

and  negative  thereof,  known  and  enti-  thereof  to  his  bill  of  complaint. 

491  Volume  5. 


6366.  COPYRIGHT.  6366. 

herein  prayed  for  and  all  other  relief  that  it  may  be  righteous  in  the 
premises  to  admmister  may  be  afforded  your  orators,  may  it  please 
your  honors  such  relief  fully  to  grant  and  to  grant  unto  your  orators 
a  writ  of  subpoena  ad  respondendum  issuing  out  of  and  under  the 
seal  of  this  honorable  court  directed  to  the  said  American  Lithographic 
Company  and  commanding  it  to  appear  and  make  answer  to  this  bill 
of  complaint,  and  to  perform  and  abide  by  such  order  and  decree 
herein  as  to  this  court  shall  seem  just. 

And  your  orators,  as  in  duty  bound,  will  ever  pray. 

Rowland  Cox, 
Solicitor  for  Complainants. 

Ro7vland  Cox, 

of  Counsel  for  Comp'ts. 
United  States  of  America,  ^ 
State  of  New  York,  >  ss. 

County  of  New  York.  ) 

Edwin  Young,  being  duly  sworn,  deposes  and  says  that  he  is  a  mem- 
ber of  the  firm  of  E.  6^y.  B.  Young  S'  Co.,  which  firm  and  its  prede- 
cessors have  been  for  more  than  five  years  the  representatives  in  the 
United  States  for  the  firm  oi  Eyre  dr  Spottiswoode,  the  complainants 
named  in  the  foregoing  bill  of  complaint;  that  he  has  read  said  bill 
of  complaint  and  knows  the  contents  thereof;  that  the  same  is  true 
to  his  own  knowledge  except  as  to  the  matters  therein  stated  upon  in- 
formation and  belief,  and  as  to  those  matters  he  verily  believes  to  be 
true;  that  the  complainants  herein  reside  in  London,  which  is  the 
reason  why  this  affidavit  is  made  by  affiant. 

Edwin  Young. 

Subscribed  and  sworn  to  before  me  this  second da.y  oi  June,  jS92. 

(seal)  Herman  Gustoiv, 

Notary  Public,  Ne7v  York  County. 

3.  Answer  Denying*  Infring-ement.^ 

Form  No.  6  3  6  6  .'^ 
United  States  Circuit  Court,  Northern  District  of  New  York. 
West  Publishing  Company 
vs. 
Lawyers'  Co-operative  Publishing  Company. 

The  defendant,  for  answer  to  the  bill  of  complaint  exhibited  herein, 

1.  For  the  formal  parts  of  an  answer  that  such  substitution  was  made  after 

in  a  particular  jurisdiction  consult  the  publication.     Osgood   v.    Aloe    Instru- 

titles  Answers  in  Equity,  vol.   i,   p.  ment  Co.,  69  Fed.  Rep.  291. 

854;  Answers  in  Code  Pleading,  vol.  2.  This    form    is    copied    from    the 

I,  p.  799.  records  in  the  case  of  the  West   Pub, 

Defective  Answer.  —  An  answer  which  Co.  v.  Lawyers'  Co-operative  Pub.  Co., 

alleges  that   a  copy   of   complainant's  79   Fed.    Rep.     756.      The    answer     is 

book,  profert  of  which  is  made  in  the  good  in   form,   for  although  that  case 

bill,  is  not  a  true  copy  of  the  copyrighted  was  decided  against  the  defendant   it 

book,  but  that  the  title-page  thereof  had  was  on  questions  of  fact  put  in  issue 

been  removed  and  another  page  sub-  by  the  answer,  and  not  because  of  any 

stituted,  does  not  constitute  a  sufficient  formal  defects  therein, 
defense  unless  the  answer  further  avers 

493  Volume  5. 


6366.  COPYRIGHT.  6366. 

says:  It  admits  that  the  plaintiff  is  a  corporation  organized  under 
the  laws  of  the  state  of  Minnesota^  and  having  its  principal  office  and 
place  of  business  at  the  city  of  St.  Paul  in  said  state,  and  that  the 
plaintiff  has  carried  on  and  still  carries  on  its  business  at  the  city 
of  St.  Paul,  aforesaid;  and  that  the  defendant  is  a  corporation  organ- 
ized under  the  laws  of  the  state  of  New  Yorkiox  the  purposes  alleged 
in  said  bill  of  complaint,  and  has  carried  on  and  still  carries  on  its 
business  at  the  city  of  Rochester  in  said  state;  and  that  the  business 
so  carried  on  by  the  said  defendant  and  the  said  plaintiff  is  correctly 
stated  in  said  bill  of  complaint. 

Said  defendant,  further  answering,  admits  that  the  plaintiff  has 
published  the  various  books  or  works  alleged  to  have  been  published 
by  it  in  said  bill  of  complaint,  and  that  the  same  were  printed  from 
plates  made  from  type  set  within  the  limits  of  the  United  States,  but 
whether  said  plaintiff  has  taken  the  various  steps  to  secure  a  copy- 
right upon  or  for  said  works,  or  whether  said  defendant  has  acquired 
a  copyright  therein,  or  in  any  of  the  same,  as  stated  in  said  bill  of 
complaint,  this  defendant  has  no  knowledge  or  information  sufficient 
to  form  a  belief,  and,  therefore,  leaves  the  plaintiff  to  its  proof. 

Said  defendant  admits  that  each  and  all  of  said  permanent  or  com- 
plete volumes  of  reports,  as  well  as  each  and  all  of  said  advance 
numbers  or  books  embodied  in  said  volumes,  were  prepared,  arranged 
and  reported  under  the  direction  of  the  plaintiff,  and  that  each  and 
all  of  said  advance  numbers,  volumes  or  books  contained  matter 
original  with  the  plaintiff,  but  whether  the  amount  of  the  original 
matter  contained  in  said  volumes,  advance  numbers  or  books  is  large 
or  otherwise,  or  whether  the  same  is  a  private  property  of  the  plain- 
tiff as  author  or  proprietor,  and  whether  the  plaintiff  has  obtained 
copyrights  thereon,  as  alleged  in  said  bill  of  complaint,  this  defend- 
ant has  no  knowledge  or  information  sufficient  to  form  a  belief. 

Said  defendant  further  says  that  it  has  no  knowledge  or  informa- 
tion sufficient  to  form  a  belief  as  to  the  way  in  which  said  reports, 
numbers  or  books  were  prepared  and  reported,  or  at  what  labor 
and  expense,  and,  therefore,  leaves  the  plaintiff  to  its  proof.  The 
said  defendant  admits  that  the  syllabi  and  head-notes,  and  prelimi- 
nary statements  of  facts,  except  where  prepared  by  the  court,  were 
original  with  said  plaintiff,  and  were  made,  edited  and  published  as 
stated  in  said  bill  of  complaint,  and  that  the  syllabi  or  head-notes  of 
cases  reported  in  each  permanent  or  completed  volume  were  by  the 
plaintiff  alphabetically  arranged,  and  reprinted  as  an  index  at  the 
end  of  such  volume,  as  is  alleged  in  said  bill  of  complaint. 

Said  defendant  further  admits  that  the  American  Digest  Monthly  of 
said  plaintiff,  and  the  Annual  Digest  oi  said  plaintiff  for  the  year  1 89:?, 
were  principally  compiled  from  and  composed  of  the  syllabi  or  head- 
notes  of  the  cases  originally  prepared  for  and  published  in  the 
advance  numbers  of  its  permanent  edition  of  its  reporters,  and 
which  were  from  time  to  time  reprinted  in  the  advance  numbers  or 
monthly  parts  of  its  digest;  but  whether  the  said  syllabi  or  head-notes, 
made,  edited  or  prepared  by  the  plaintiff  for  its  system  of  reports  and 
advance  numbers,  were  made,  edited  and  prepared  with  special  refer- 
ence for  use  as  digest  paragraphs  in  the  index  digests  to  each  com- 

493  Volume  5. 


6366.  COPYRIGHT.  6366. 

plete  volume  of  reports  and  in  the  monthly  or  advance  digest  sheets 
or  pamphlets,  and  also  in  the  American  Annual  Digest,  or  permanent 
digest  for  each  year,  this  defendant  has  no  knowledge  or  information 
sufficient  to  form  a  belief. 

Said  defendant  admits  that  the  said  American  Annual  Digest,  and 
said  advance  numbers  of  said  Monthly  Digest,  became  and  were  con- 
venient and  were  of  value  to  all  persons  desiring  to  use  the  same, 
but  whether  of  great  value  or  of  what  value,  this  defendant  has  no 
knowledge  or  information  sufficient  to  form  a  belief. 

The  defendant  admits  that  the  plaintiff  has  from  time  to  time 
printed  and  sold  a  large  number  of  said  volumes  and  of  said  advance 
numbers,  and  of  its  American  Annual  Digest  and  of  its  monthly 
advance  numbers  or  books,  but  whether  to  the  amount  of  several 
thousands  of  each  of  said  volumes,  or  to  what  amount  this  defend- 
ant has  no  knowledge  or  information  sufficient  to  form  a  belief. 

It  admits  that  the  plaintiff  has  caused  to  be  printed  and  inserted 
in  its  copies  or  volumes,  and  in  the  permanent  and  completed  books 
or  editions,  and  in  each  advance  number  or  book,  and  in  each  of  the 
complete  and  permanent  volumes  or  books,  notice  that  the  same 
were  copyrighted,  as  required  by  law,  as  alleged  in  said  bill  of  com- 
plaint. Whether  the  plaintiff  has  ever  sold  or  transferred  any  of  said 
copyrights  this  defendant  has  no  knowledge  or  information  sufficient 
to  form  a  belief. 

It  admits  that  the  plaintiff  has  never  authorized  this  defendant  to 
publish  any  of  said  volumes  of  reports,  or  the  syllabi  or  head-notes 
thereof,  or  extracts,  excerpts  or  abridgments  thereof,  except  such 
right  as  was  conferred  upon  the  defendant  and  upon  the  public  at 
large  to  make  use  of  such  publication,  by  reason  of  the  publication 
thereof.  The  defendant  has  no  knowledge  or  information  sufficient 
to  form  a  belief  as  to  whether  the  plaintiff  is  the  exclusive  owner  and 
proprietor  of  all  the  said  copyrights,  or  whether  it  has  the  sole  and 
exclusive  right  in  each  and  all  of  the  syllabi,  head-notes  and  prelimi- 
nary statements  of  facts  contained  in  said  volumes,  in  advance  num- 
bers or  books,  and  reprinted  in  said  Annual  or  Monthly  Digests,  as 
aforesaid;  or  whether  it  has  the  exclusive  right  to  the  head-notes, 
head-lines  or  catch-words,  preliminary  statements  of  facts,  abstracts 
of  arguments  of  counsel,  arrangements  and  division  of  the  cases  into 
volumes,  notes  of  authorities  added  to  any  of  the  cases  reported, 
indices  or  index  digests  in  and  for  each  complete  volume  of  reports, 
and  of  all  matter,  excepting  the  opinions  and  decisions  of  said  courts, 
or  any  of  the  matters  in  said  bill  of  complaint  stated. 

The  defendant  denies  that  the  value  of  said  advance  numbers, 
books,  annual  digests  and  monthly  digests,  mentioned  in  the  said  bill 
of  complaint,  is  %S00,000,  or  any  like  sum,  or  that  the  loss  or  damage 
to  the  plaintiff  by  the  violation  of  any  of  its  rights  mentioned  or 
alleged  in  said  bill  of  complaint  is  of  that  or  any  similar  amount; 
but  as  to  what  is  the  value  of  said  books,  advance  numbers  and 
digest,  this  defendant  has  no  knowledge  or  information  sufficient  to 
form  a  belief,  and  it  denies  that  the  plaintiff  has  sustained  any  loss 
or  damage  by  reason  of  violation  of  any  of  its  rights  alleged  in  said 
bill  of  complaint. 

494  Volume  5. 


6866.  COPYRIGHT.  6366. 

This  defendant  admits  that  in  its  business  of  publishing  and  sell- 
ing law-books,  reports  and  digests,  it  does  and  has  for  several  years 
past  published  and  sold  annually  a  volume  known  and  called  the 
General  Digest^  of  which  it  publishes  and  issues  advance  sheets  semi- 
monthly, and  that  said  digest  and  advance  sheets  or  numbers  are 
published  and  sold  in  competition  with  the  advance  numbers  or 
books  of  the  plaintiff,  including  its  annual  or  monthly  digest. 

Said  defendant,  further  answering  said  bill  of  complaint,  says,  that 
it  denies  each  and  every  allegation  in  said  bill  of  complaint  charging 
this  defendant  with  using  or  intending  to  use  the  syllabi  or  head- 
notes  of  the  plaintiff,  or  any  of  them,  or  reprinting,  publishing  or 
selling  in  large  numbers,  or  any  numbers,  in  advance  numbers  of  its 
General  Digest^  or  otherwise,  statements  of  facts,  syllabi  or  head-notes, 
taken,  copied  or  pirated  from  the  volumes  of  reports  of  the  plaintiff, 
or  from  the  advance  numbers  or  books  thereof,  or  from  its  annual  or 
monthly  digest,  or  that  it  has  used  or  employed,  principally  or  at  all, 
in  preparing  its  General  Digest  for  \?>92,  the  head-notes  or  points 
issued  and  published  by  the  plaintiff,  or  that  said  head-notes  or 
points  issued  and  published  by  the  defendant  are  largely,  or  at  all, 
copies  of  and  piracies  upon  the  head-notes  or  points  of  the  plaintiff, 
made,  prepared  and  edited  by  it,  and  published  in  its  volumes, 
advance  numbers  or  books,  as  charged  in  said  bill  of  complaint. 

The  said  defendant  denies  that,  in  preparing  its  General  Digest  for 
publication,  and  the  advance  numbers  thereof,  it  has  substantially, 
or  at  all,  copied  the  head-notes  and  syllabi  previously  prepared  and 
published  by  the  plaintiff,  or  that  it  has  resorted  to  any  of  the 
devices  in  reference  thereto  charged  in  said  bill  of  complaint,  or  that 
it  has  availed  itself  of  the  original  work,  method  and  ideas  of  the 
plaintiff,  in  making  and  preparmg  its  head-notes,  or  in  digesting 
cases,  as  charged  in  said  bill  of  complaint;  and  it  denies  that  any  of 
its  publications  are  pirated  from,  either  wholly  or  in  part,  the  publi- 
cations of  the  said  plaintiff. 

The  defendant  denies  that  its  General  Digest  for  \W2,  or  the 
advance  numbers  thereof,  are  infringements  of  or  piracies  upon  the 
copyrights,  if  any,  of  the  plaintiff. 

The  defendant  admits  that  its  publications  were  made  and  intended 
to  take  the  place  of,  and,  as  far  as  possible  in  legitimate  business 
competition,  supersede  the  books  and  advance  numbers  of  the  plain- 
tiff; but  it  denies  that  it  has  resorted  to  any  of  the  arts  or  devices  to 
secure  the  object  inconsistent  with  legitimate  business  competition, 
and  it  denies,  upon  information  and  belief,  that  it  has  been  and  is 
selling  large  numbers  of  its  advance  sheets  or  numbers  of  its  digest 
to  persons  who  would  otherwise  have  bought  the  volumes  and 
advance  numbers  of  the  plaintiff,  or  its  annual  or  monthly  digest  for 
\W2\  and  it  denies  that  the  plaintiff  has  sustained  loss  and  damage 
by  any  act  of  this  defendant;  and  it  denies  that  it  has  or  will  sell 
large,  or  any,  numbers  of  its  General  Digest  for  \W2  to  persons  who 
would  otherwise  buy  the  Annual  Digest  of  the  plaintiff,  to  its  loss  or 
damage,  which  sales  were  procured,  or  will  be  procured,  by  means  of 
any  of  the  wrongful  or  illegal  arts  or  devices  charged  in  said  bill  of 
complaint;  and  it  denies  that  it  has  done  any  act  contrary  to  equity 

4»6  Volume  5. 


6367.  .COPYRIGHT.  6368. 

and  good  conscience,  and  which  tends  to  the  wrong  and  injuiy  of  the 
plaintiff. 

The  defendant  denies  each  and  every  allegation  in  said  bill  of  com- 
plaint not  hereinbefore  specifically  answered  unto,  and  prays  that  it 
may  be  hence  dismissed,  with  costs. 

Lawyers'  Co-operative  Publishing  Co., 

^y  James  E.  Briggs. 
Cogswell,  Bentley  cs'  Cogswell, 

Defendant's  Solicitors. 
William  F.  Cogswell, 
Of  Counsel. 

4.  Replication.^ 

Form  No.  6367.* 
Circuit  Court  of  the  United  States,  Northern  District  of  New  York. 
The  West  Publishing  Company, 
complainant, 

vs.  y  In  Equity. 

The  Lawyers'  Co-operative  Publishing 
Company,  defendant.  J 

The  replication  of  the  West  Publishing  Company,  complainant, 
to  the  answer  of  the  Lawyers'  Co-operative  Publishing  Company, 
defendant. 

This  replicant  saving  and  reserving  unto  itself  now  and  at  all  times 
hereafter  all  and  all  manner  of  benefit  and  advantage  of  exception 
which  may  be  had  or  taken  to  the  manifold  insufficiencies  of  the  said 
answer,  for  replication  thereunto  says  that  it  will  aver,  maintain  and 
prove  its  said  bill  of  complaint  to  be  true,  certain  and  sufficient  in 
law  to  be  answered  unto,  and  that  the  said  answer  of  the  said  defend- 
ant is  uncertain,  untrue  and  insufficient  to  be  replied  unto  by  this 
replicant.  Without  this  that  any  other  matter  or  thing  whatsoever  in 
the  said  answer  contained,  material  or  effectual  in  the  law  to  be 
replied  unto,  and  not  herein  and  hereby  well  and  sufficiently  replied 
unto,  confessed  or  avoided,  traversed  or  denied  is  true.  AH  which 
matters  and  things  this  replicant  is  and  will  be  ready  to  aver,  maintain 
and  prove  as  this  honorable  court  shall  direct,  and  humbly  prays  as 
in  and  by  its  bill  it  has  already  prayed. 

Pierre  E.  Du  Bois, 

Solicitor  for  Complainant. 

5.  Decrees.^ 
a.  For  Permanent  Injunction. 

1.  For  the  formal  parts  of  a  replication  3.  For  forms  of  decrees,  generally,  Con- 
or  reply    in   a    particular    jurisdiction     suit  the  title  Decrees. 

consult  the  title  Replications.  Precedent.  —  See  also  a  decree  revers- 

2.  This  form  is  copied  from  the  ing  the  decision  of  the  circuit  court 
record  in  West  Pub.  Go.  v.  Lawyers'  dismissing  a  bill  and  directing  an  in- 
Co-operative  Pub.  Co.,  79  Fed.  Rep.  junction  and  accounting  in  Stevens  v. 
756.  Gladding,  17  How.  (U.  S.)  455. 

496  Volume  5. 


6368.  COPYRIGHT.  6368. 

Form  No.  6368.' 

At  a  Stated  Term  of  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York,  held  at  the  United  States  Circuit 
Court  Room,  in  the  Post-office  Building  in  the  City  of  New  York,  in 
said  District,  on  the  sixteenth  day  of  May,  i893. 

Present:    Hon.  William  K.  Townsend,  Judge. 
/antes  T.  Black,  Francis  Black,  ^ 

Adam  W.  BlacR  and  Francis 

A.  Walker,  complainants,        1  In  Equity. 

V.  ''No.  jfim. 

The  Henry   G.   Allen  Company, 
defendant. 

This  cause  came  on  to  be  heard  at  this  term,  and  was  argued  by 
counsel;  and  thereupon,  upon  consideration  thereof,  it  was  ordered, 
adjudged  and  decreed  as  follows: 

I.  That  the  certain  copyright  having  relation  to  and  being  for  a 
certain  book  entitled  "  United  States,  Part  III,  Political  Geography 
and  Statistics,"  and  granted  to  Francis  A.  Walker  on  the  thirtee?ith  day 
of  February  1SS8,  and  in  the  bill  of  complaint  herein  mentioned  is  a 
lawful  copyright  secured  and  existing  under  and  in  pursuance  of  the 
statutes  of  the  United  States,  and  good  and  valid  in  law,  whereby 
there  was  secured  to  and  acquired  by  the  said  Francis  A.  Walker, 
his  heirs  and  assigns,  the  sole  liberty  of  printing,  reprinting,  publish- 
ing, completing,  copying,  executing,  finishing  and  vending  the  said 
book  for  the  term  of  twenty-eight  years  from  the  time  of  recording 
the  title  thereof,  to  wit,  from  the  said  thirteenth  day  of  February, 
12,88. 

II.  That  the  defendant  herein  has  infringed  the  said  copyright  and 
the  rights  of  the  complainants  thereunder  by  reproducing,  copying, 
publishing  and  selling,  and  causing  to  be  reproduced,  copied,  pub- 
lished and  sold,  without  the  complainants'  consent,  copies  of  said  copy- 
righted book  entitled  "  United  States,  Part  III,  Political  Geography 
and  Statistics,"  as  part  of  the  twenty-third  volume  of  a  certain  reprint 
of  a  certain  book  or  publication  entitled  ^'- Encyclopcedia  Britannica, 
Ninth  Edition." 

III.  That  an  injunction  issue  herein,  perpetually  enjoining  and 
restraining  defendant  herein.  The  Henry  G.  Allen  Company,  its  officers, 
agents,  servants  and  workmen,  from  in  any  form  or  manner,  directly 
or  indirectly,  reproducing,  and  from  printing  and  from  reprinting 
and  from  copying  and  from  in  any  form  or  manner,  directly  or 
indirectly,  offering  to  reproduce,  and  from  offering  to  print  and 
from  offering  to  reprint  and  from  offering  to  copy  and  from  in  any 
manner  whatsoever  offering  to  sell  any  copy  or  copies  whatsoever 
of  said  copyrighted  book  entitled  "  United  States,  Part  III,  Political 
Geography  and  Statistics,"  or  any  part  or  parts  thereof;  and  from 
directly  or  indirectly,  in  any  form  or  manner,  reproducing,  printing, 
reprinting,  completing,  copying,  executing,  finishing,  vending,  or 
selling,  and   from  directly  or   indirectly,  in   any  form  or  manner, 

1.  This  form  is  copied  from  the  records  in   the  case  of  Black   v.  Henry  G. 
Allen  Co.,  42  Fed.  Rep.  618. 

5  E.  of  F,  P.  —32.  497  Volume  5. 


6369.  COPYRIGHT.  6369. 

offering  to  reproduce,  print,  reprint,  complete,  copy,  execute,  finish, 
vend  or  sell  any  copy  or  copies  whatsoever  of  the  book  or  publica- 
tion entitled  '■^ Encyclopcedia  Britannica,  Ninth  Edition^"  or  any 
other  book  or  publication  which  shall  contain  or  consist  in  part  of 
said  copyrighted  book  entitled  "  United  States,  Part  III,  Political 
Geography  and  Statistics.''  But  nothing  herein  contained  shall  in  any 
wise  prohibit  the  sale  by  the  said  defendant  of  any  book  whatso- 
ever published  or  issued  by  the  owners  of  said  copyright  or  their 
representatives. 

IV.  That  the  complainants  do  recover  of  the  defendant  the  costs 
and  disbursements  of  this  suit. 

Wm.  K.  Townsend,  Judge. 

b.  For  Permanent  Injunction  and  Directing  Reference  to  Master. 

Form  No.  6369. 

(Precedent  in  Myers  v.  Callaghan,  5  Fed.  Rep.  735.) 

[{Caption  as  in  Form  No.  6368. )Y 

This  cause  coming  on  for  final  hearing  on  the  bill,  answers  and 
testimony,  and  the  court  being  fully  advised,  finds: 

That  the  complainant  is  the  owner  of  the  copyright  or  exclusive 
right  of  publication  of  the  volumes  described  in  said  bill  of  complaint, 
and  known  as  volumes  thirty-two  (32),  thirty-three  (33),  thirty-four  (3Jf), 
thirty-five  (35),  thirty-six  (36),  thirty-seven  (37),  and  thirty-eight  (38),  of 
the  Illinois  Reports. 

That  said  defendants  Bernard  Callaghan,  Andrew  Callaghan,  Andrew 
P.  Callaghan,  Sheldon  A.  Clark,  violated  said  copyright  of  said  com- 
plainant, as  to  said  volumes  32,  33,  3^,  35,  36,  37,  as  38,  by  publish- 
ing, offering  for  sale,  and  selling  copies  thereof,  and  the  said  Marshall 
D.  Ewell  and  V.  B.  Denslow  in  editing  the  same. 

Wherefore,  it  is  ordered  and  decreed  that  all  said  defendants  be 
perpetually  enjoined  from  further  publishing  or  selling,  transferring 
or  removing,  any  of  said  books. 

And  as  it  does  not  appear  what  number  of  said  volumes  have  been 
published  by  said  defendants  Bernard  Callaghan,  Andrew  Callaghan, 
Andrew  P.  Callaghan,  and  Sheldon  A.  Clark,  or  the  value  of  said  com- 
plainant's volumes  before  the  illegal  publication  and  sale  by  the  said 
defendants  of  the  copies  thereof,  it  is  ordered  that  this  matter  be 
referred  to  Henry  IV.  Bishop,  one  of  the  masters  of  this  court,  to 
ascertain  and  report  what  number  of  each  of  said  volumes  have  been 
printed,  and  what  number  have  been  sold,  and  at  what  price,  by  said 
last  named  defendants,  and  that  the  defendants  last  named  may  be 
examined  in  regard  thereto,  and  that  they  may  be  required  to  produce 
their  account-books  and  papers,  and  that  said  master  also  ascertain 
and  report  what  was  the  market  value  of  each  of  said  books  of  com- 
plainant prior  to  the  said  illegal  publication  of  said  books  by  the 
defendants  last  named. 

And  also  what  was  the  actual  cost  or  value  of  reprinting  and  bind- 

1.  The  words  and  figures  to  be  supplied  within  [  ]  will  not  be  found  in  the 
reported  case. 

498  Volume  5. 


6370.  COPYRIGHT.  6370. 

ing  each  of  said  volumes;  and  that,  upon  the  making  of  such  report, 
said  complainant  have  leave  to  apply  for  a  further  order  in  regard  to 
the  damages  to  be  allowed  for  the  said  illegal  publication  and  sale  of 
said  volumes. 

And  the  solicitor  for  complainant  having  made  application  herein, 
upon  the  suggestion  that  since  the  filing  of  the  bill  in  this  cause  said 
defendants  last  named  have  proceeded  to  publish  and  "sell  copies  of 
the  books  described  in  said  bill  as  volumes  numbers  39^  J^l,  Jf2,  J^S, 
-44,  i^i  and  46,  of  said  Illinois  Reports,  and  upon  the  further  suggestion 
that  such  publication  is  in  violation  of  the  rights  of  said  complainant, 
it  is  ordered  that  he  have  leave  to  file  a  supplemental  bill  herein  in 
regard  thereto. 

[{Signature  as  in  Form  No.  6368.)]^ 

6.  Injunction.^ 

Form  No.  6370.* 

The  President  of  the  United  States  of  America  to  The  Henry  G.  Allen 
Company,  your  officers,  agents,  servants  and  workmen,  Greeting: 
Whereas,  it  has  been  represented  to  us  in  our  Circuit  Court  of  the 
United  States  for  the  Southern  District  oi  New  York,  in  the  Second  C\v- 
cuit,  on  the  part  of  fames  T.  Black,  Francis  Black,  Adam  W.  Black 
and  Francis  A.  Walker^  complainants,  that  they  have  lately  exhibited 
their  bill  of  complaint  in  our  said  Circuit  Court  of  the  United  States 
for  the  Southern  District  of  New  York,  against  you,  the  said  The 
Henry  G.  Allen  Company,  defendant,  to  be  relieved  touching  the  mat- 
ters therein  complained  of;  and  that  the  certain  copyright  having 
relation  to  and  being  for  a  certain  book  entitled  ^'United States,  Part 
III,  Political  Geography  and  Statistics,"  and  granted  to  Francis  A. 
Walker,  on  the  thirteenth  day  of  February,  1888,  and  in  the  bill  of 
complaint  herein  mentioned,  is  a  lawful  copyright  secured  and  exist- 

1.  The  words  and  figures  to  be  sup-  S.  414;  Ingram  v.  Stiff,  5  Jur.  N.  S. 
plied  within  [  ]  will  not  be  found  in  the  947;  Buxton  v.  James,  5  DeG.  &  Sm.  80; 
reported  case.  Prince  Albert  v.  Strange,  2  DeG.  &  Sm. 

2.  For  writs  of  injunction,  and  re-  652;  Bogue  v.  Houlston,  16  Jur.  372; 
straining  orders  generally,  consult  the  Campbell  v.  Scott,  11  Sim.  31;  Colburn 
title  In'junction.  v.  Simms,  2  Hare  543;  Kelly  f.  Morris, 

Injunction  in  English  Courts.  —  In  view  L.  R.  i  Eq.  697;  Morris  r^.  Ashbee,  L. 
of  the  present  international  copyright  R.  7  Eq.  34;  Tinsley  v.  Lacy,  32  L.  J. 
law,  the  practice  of  the  English  courts  Ch.  535;  Stannard  v.  Harrison.  Pemb. 
in  regard  to  enjoining  infringement  Judg.  (ist  ed.)  288;  Hotten  v.  News- 
becomes  of  some  interest.  Forms  for  agents,  etc.,  Co.,  i  Seton  (5th  ed.)  573; 
injunction  in  various  cases  of  infringe-  Kelly  v.  Hodge,  i  Seton  (5th  ed.)  572; 
ment  may  be  found  in  the  English  re-  Hole  v.  Bradbury,  12  Ch.  Div.  886; 
ports,  as  follows:  Smith  v.  Chatto,  23  W.  R.  290;  i  Seton 

Tonson    z/.  Walker,    3    Swanst.    681;  (5th  ed.)  571;  Warne  z^.  Lawrence,  i  Se- 

Lewis  V.  FuUarton,  2  Beav.  14;  Delf  v.  ton  (5th  ed.)  574;  Boucicault  v.  Ward,  i 

Delamotte,  3  Kay   &  J.    581;  Ward  v.  Seton  (5th  ed.)  575;  Pollard  v.  Moll,   r 

Beeton,     L.     R.     19    Eq.     211;     Hogg  Seton  (5th   ed.)  576;  Dicks  v.  Jackson, 

V.   Kirby,  8  Ves.   Jr.  215;  Ainsworth  v.  Pemb.  Judg.  (4th   ed.)   468;    Lewis  v. 

Bentley,   14  W.    R.    630;    Chappell   v.  Fullarton,  2  Beav.   6;  Faden  v.  Stock- 

Sheard,  2  Kay  &  J.  117;  Warne  v.  See-  dale,  8  Jur.  185,  note, 
bohm,   39  Ch.    Div.  82.      See   i    Seton         3.  This    form    is    copied    from    the 

(5th   ed.)   574;  Clement   v.  Maddick,   i  record  in  the  case  of  Black  z/.  Henry  G. 

Giff.  98;  Prowettz'.  Mortimer,  2  Jur.  N.  Allen  Co.,  42  Fed.  Rep.  618. 

499  "Volume  5. 


€371.  COPYRIGHT.  6371. 

ing  and  in  pursuance  of  the  statutes  of  the  United  States,  and  good 
and  vaUd  in  law,  whereby  there  was  secured  to  and  acquired  by  the 
said  Francis  A.  Walker,  his  heirs  and  assigns,  the  sole  liberty  of 
printing,  reprinting,  publishing,  completing,  copying,  executing,  fin- 
ishing and  vending  the  said  book  for  the  term  of  twenty-eight  years 
from  the  time  of  recording  the  title  thereof,  to  wit,  from  the  said 
thirteenth  didi^^  oi  February,  i8<^^;  and  that  you,  the  said  The  Henry 
G.  Allen  Company,  defendant  herein,  have  infringed  the  said  copyright 
and  the  rights  of  the  complainants  thereunder,  by  reproducing,  copy- 
ing, publishing  and  selling,  and  causing  to  be  reproduced,  copied, 
published  and  sold,  without  the  complainants'  consent,  copies  of  said 
copyrighted  book  entitled  ^'■United  States,  Part  III,  Political  Ge- 
ography and  Statistics"  z.'S>  part  of  Xhe.  twenty-third  so\\xvcvt  of  a  certain 
book  or  publication  entitled  '■'■  Encyclopcedia  Britannica,  Ninth  Edition" 

Now  therefore,  we  do  strictly  command  and  perpetually  enjoin  you,  ■ 
the  said  The  Henry  G.  Allen  Company,  your  officers,  agents,  servants 
and  workmen,  under  the  pains  and  penalties  which  may  fall  upon  you 
and  each  of  you  in  case  of  disobedience,  that  you  forthwith  and  for- 
ever hereafter,  desist  and  refrain  from  in  any  form  or  manner,  directly 
or  indirectly,  offering  to  reproduce,  and  from  offering  to  reprint,  and 
from  offering  to  copy  and  from  in  any  manner  whatsoever  offering  to 
sell  any  copy  or  copies  whatsoever  of  the  said  copyrighted  book 
entitled  '■''United States,  Part  III,  Political  Geography  and  Statistics,"  or 
any  part  or  parts  thereof;  and  from  directly  or  indirectly,  in  any 
form  or  manner,  reproducing,  printing,  reprinting,  copying,  executing, 
finishing,  vending  or  selling,  and  from  directly  or  indirectly,  in  any 
form  or  manner,  offering  to  reproduce,  print,  reprint,  complete,  copy, 
execute,  finish,  vend  or  sell,  any  copies  whatsoever  of  the  book  or 
publication  entitled  '•'■Encyclopcedia  Britannica,  Ninth  Edition,"  or  any 
other  book  or  publication  which  shall  contain  or  consist  in  part  of 
said  copyrighted  book  entitled  ^^ United  States,  Part  III,  Political 
Geography  and  Statistics."  But  nothing  herein  contained  shall  in  any- 
wise prohibit  the  sale  by  you,  the  said  The  Henry  G.  Allen  Company, 
of  any  book  whatsoever  published  or  issued  by  the  owners  of  said 
copyright,  or  their  representatives. 

Witness,  the  Honorable  Melville  IV.  Fuller,  Chief  Justice  of  the 
United  States  of  America,  at  the  city  of  New  York,  in  said  Southern 
District  of  New  York,  this  nineteenth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-three. 

(seal)  John  A.  Shields^  Clerk. 

Rowland  Cox, 

Complainants'  Solicitor. 

II.  ACTION  FOR  STATUTORY  PENALTIES. 
1.  On  Copies  of  Infringfingf  Photograph. 

Form  No.  6371.' 

1.  This  complaint  is  copied  from  the  The  penalty  prescribed  by  this  sec- 
records  in  Falk  v.  Schumacher,  48  Fed.  tion  of  one  dollar  for  every  sheet  found 
Rep.  222.  The  action  is  brought  un-  in  possession  of  defendant  is  affixed 
der  U.  S.  Rev.  Stat.  (1878),  §  405.  only    when    the   sheets   are   shown    to 

SOO  Volume  5. 


6371.  COPYRIGHT.  6371. 

Circuit  Court  of  the  United  States  for  the  Southern  District  of 
N'eiv  York. 

Benjamin  J.  Folk  \ 

against  > 

Schumacher  and  Ett linger.  ) 

The  complainant  complains  and  alleges: 

First.   That  complainant  is  a  citizen  of  the  United  States  and  a 
resident  therein  and  resides  in  the  city,  county  and  state  of  JVew 
York  and  is  the  author,  inventor,  designer  and  proprietor  of  a  certain 
photograph  and  the  negative  thereof  known  as  and  entitled  ^'■Photo- 
graph No.  23  of  Lillian  Russell  by  B.  J.  Falk,  N.  Y." 

Second.  That  before  the  publication  of  said  photograph  and  for 
the  purpose  of  copyrighting  the  same,  complainant,  in  conformity 
with  the  provisions  of  the  Revised  Statutes  of  the  United  States,  on 
the  twenty-sixth  day  of  February.,  iS89,  deposited  in  the  mail  addressed 
to  the  librarian  of  Congress  at  Washington,  District  of  Columbia,  a 
printed  copy  of  the  title  of  said  photograph  for  which  he  desired  a  copy- 
right, and  that  he  also,  within  ten  days^  from  the  publication  thereof, 
to  wit,  on  the  fourteenth  day  of  March.,  iS89,  deposited  in  the  mail 
addressed  to  the  librarian  of  Congress  at  Washington,  District  of 
Columbia,  two  complete  printed  copies  of  such  photograph  of  the 
best  edition  issued,  and  at  the  time  of  mailing  such  printed  copy  of 
the  title  of  said  photograph,  he  forwarded  to  said  librarian  of  Con- 
gress at  Washington,  District  of  Columbia,  the  sum  of  ffty  cents 
for  recording  the  title  of  said  photograph,  and  that  said  librarian  of 
Congress  did  record  the  title  of  such  copyrighted  photograph  in  a 
book  kept  for  that  purpose  as  required  by  section  4957  of  the 
Revised  Statutes  of  the  United  States. 

Third.  That  complainant  gave  notice  of  his  copyright  of  said 
photograph  entitled  "  Photograph  No.  23  of  Lillian  Russell  by  B.  J. 
Falk,  N.  Y."  by  printing  and  inscribing  upon  some  portion  of  the 
face  or  front  of  each  of  the  several  copies  of  said  photograph  the 
following  words:  ''1889,  Copyrighted  by  B.  J.  Falk,  New  York." 

Fourth.  And  complainant  having  in  all  things  complied  with  the 
conditions  and  provisions  of  the  Revised  Statutes  of  the  United 
States  in  such  case  made  and  provided,  as  aforesaid,  thereby  obtained 
a  copyright  of  the  United  States  for  said  photograph  in  due  form  of 
law,  and  there  was  granted  and  secured  to  him  and  he  had  sole  liberty 
of  printing,  reprinting,  publishing,  completing,  copying,  executing, 
finishing  and  vending  the  same  for  the  term  of  twenty-eight  years 
from  the  time  of  recording  the  title  thereof  by  the  librarian  of  Con- 
gress as  above  set  forth. 

Fifth.  On  information  and  belief  that  the  said  defendant  is  a  cor- 
poration created  and  existing  under  the  laws  of  the  state  of  New 
York.,  having  its  principal  place  of  business  in  the  city  of  New  York 
and  does  a  general  lithographic  business;  that  said  defendant,  well 
knowing  the  premises  and  the  rights  so  secured  to  the  complainant, 
and  without  the  consent  of  complainant,  the  proprietor  of  said  copy- 
have  been  discovered  or  detected  in  to  the  bringing  of  the  suit.  Bolles  z*. 
the  possession  of  the  defendant  prior     Outing  Co.,  45  U.S.  App.  449. 

1.  See  supra,  note  2,  p.  471. 
601  Volume  5. 


6372.  COPYRIGHT.  6372. 

right,  first  obtained  in  writing  signed  in  the  presence  of  two  or  more 
witnesses,  and  within  two  years  next  before  the  commencement  of 
this  action,  and  after  the  recording  of  the  title  of  said  photograph 
as  aforesaid,  did  engrave,  etch,  work,  copy,  print,  publish  and  import 
in  whole  and  in  part  copies  of  said  copyrighted  photograph  entitled 
as  aforesaid,  and  knowing  the  same  to  be  so  printed,  published  and 
imported,  did  sell  and  expose  to  sale  great  numbers  contrary  to  the 
statute  in  such  case  made  and  provided,  contrary  to  sections  4952 
and  4965  of  the  Revised  Statutes  of  the  United  States  and  to  the 
great  damage  of  the  complainant,  whereby  and  by  force  of  the 
statute  said  defendant  forfeited  to  the  complainant,  the  proprietor  of 
said  copyright,  every  sheet  thereof,  to  wit,  twenty  thousand  thereof  so 
sold  and  exposed  for  sale,  and  that  the  valu^of  said  sheets  of  said 
co^y '\'&  two  hundred  diO\\diX%.  And  that  by  reason  of  the  premises  said 
defendant  also  further  forfeited  one  dollar  for  every  sheet  of  the  same 
found  in  its  possession  either  printing,  printed,  copied,  published, 
imported  or  exposed  for  sale,  and  the  complainant  avers  that  there 
were  so  found  in  possession  of  the  defendant  at  the  time  of  the  com- 
mencement of  this  suit  twenty  thousand  of  such  copies,  whereby  there 
accrued  to  the  said  complainant  twenty  thousand  dollars,  for  the  aggre- 
gate of  which  said  several  sums,  to  wit,  for  the  sum  of  twenty  thou- 
sand two  hundred  dollars,  the  complainant  demands  judgment  against 
the  defendant  with  costs. 

Isaac  N.  Falk, 

Attorney  for  Complainant, 

5  Beekman  Street,  New  York  City. 
State  of  New  York,  ) 

r  SS  ' 

City  and  County  of  New  York.  \ 

Benjamin  J.  Falk,  being  duly  sworn,  deposes  and  says,  that  he  is 
plaintiff  in  this  action;  that  he  has  read  the  foregoing  complaint  and 
knows  the  contents  thereof;  that  the  same  is  true  to  the  knowledge 
of  deponent,  except  as  to  the  matters  therein  stated  to  be  alleged 
on  information  and  belief,  and  as  to  those  matters  he  believes  it  to 
be  true. 


Sworn  to  before  me  \\\\%  first  day  of  Aprils  \W1. 
(seal)  F.  Goodwin^ 

Notary  Public,  N.  Y.  Co. 


B.  J.  Falk. 


2.  For  Falsely  Imprinting  Notice. 

Form  No.  6372.' 

Circuit  Court  of  the  United  States  for  the  Southern  District  of  New 
York. 

1.  This    form    is    copied    from    the  For    allegations    in   a    similar  case, 

records,  in    Rigney  v.   Raphael   Tuck,  where,    however,    the    matter    falsely 

etc.,  Co.,  77  Fed.   Rep.   173.     For  the  marked  was  not  subject  to  copyright, 

statute    under    which    this    action    is  see    Rosenbach   v.    Dreyfuss,    2   Fed. 

brought  see  26  U.   S.   Stat,   at   Large,  Rep.  217. 

p.    1 106.      See   also    the   complaint  in  In   an   action   on   a   statute   of    this 

Rigney  v.  Button,  77  Fed.  Rep.  176.  character,  the  party  prosecuting  must 

503  Volume  5. 


6372. 


COPYRIGHT. 


6372. 


William  J.  Rigney^  \ 

against  >•  Complaint. 

Raphael  Tuck  6*  Sons  Company.  ) 

The  plaintiff,  by  A.  Bell  Malcomson,  his  attorney,  complains  of  the 
defendant  and  says  as  follows*: 

I.  That  plaintiff  is  a  citizen  of  the  United  States,  residing  in  the 
city  of  Brooklyn^  New  York,  and  is  entitled  to  recover  from  defend- 
ant the  amounts  hereinafter  set  forth,  by  virtue  of  the  statutes  of 
the  United  States  in  such  case  made  and  provided,  the  facts  in  rela- 
tion to  which  are  hereinafter  stated. 

II.  That  defendant  is  a  corporation  formed  under  the  laws  of  the 
state  of  New  York  and  carrying  on  the  business  in  the  city  of  Neiv 
York  and  elsewhere  of  printing  and  publishing  books,  prints  and 
other  articles. 

III.  That  as  a  first  cause  of  action,  upon  information  and  belief, 
plaintiff  alleges  that  heretofore  and  on  or  about  \ht.  first  day  of  May, 
i896,  the  defendant,  at  the  city  of  Ne7e'  York,  in  the  state  of  New 
York,  did  publish  and  issue  a  certain  book  entitled  "  Father  Tuck's 
Nursery  Rhymes,"  and  in  and  upon  said  book  did  knowingly  insert 
and  impress  a  false  and  untruthful  notice  that  the  same  was  copy- 
righted, which  notice  was  in  the  following  words:  ^^  Copyright  1896 
by  Raphael  Tuck  dr*  Sons,  Ltd.""^ 


allege  every  fact  necessary  to  make 
out  his  title  and  his  competency  to  sue. 
Ferrett  v.  Atwill.  i  Blatchf.  (U.  S.)  151. 

1.  The  penalty  imposed  by  section 
II  of  the  Copyright  act  of  February  3, 
1831  (4  U.  S.  Stat,  at  Large,  438),  for 
putting  the  imprint  of  a  copyright 
upon  a  work  not  legally  copyrighted, 
and  given  by  the  act  to  "the  person 
who  shall  sue  for  the  same,"  cannot 
be  recovered  in  the  name  of  more  than 
one  person.  And  a  declaration  for 
such  penalty  in  the  name  of  two  per- 
sons is  bad  on  general  demurrer.  Fer- 
rett V.  Atwill,  I  Blatchf.  (U.  S.)  151. 

2.  The  allegations  of  this  paragraph 
were  held  sufficient  on  demurrer,  the 
court  ruling  as  follows: 

"  The  first  ground  of  the  demurrer  is 
that  the  use  which  is  alleged  to  have 
been  made  of  the  notice  of  copyright  is 
consistent  with  a  proper  use  of  such 
notice,  and  that  it  is  not  alleged  with 
sufficient  clearness  to  have  been  a 
wrongful  use.  For  example,  a  book 
may  be  made  up  of  a  quantity  of  maps, 
or  of  musical  compositions,  or  of  en- 
gravings or  photographs,  each  one  of 
which  was,  before  they  were  embodied 
in  book  form,  the  subject  of  a  separate 
copyright,  and  is  entitled  to  a  copy- 
right notice.  The  position  of  the  de- 
fendant is  that  it  does  not  appear  in 
the  complaint  that  the  use  which  the  de- 


fendant made  of  the  notice  of  copyright 
was  not  the  proper  use  which  it  might 
have  made.  The  allegations  in  regard 
to  the  untruthfulness  of  the  notice  and 
wrongful  use  which  the  defendant 
made  of  it  state  the  case  in  the  lan- 
guage of  the  statute,  and  recite  the 
facts  which  constitute  a  statutory  cause 
of  action,  and  it  was  not  necessary  for 
the  pleader  to  negative  all  the  sup- 
posable  matters  of  defense.  The  second 
ground  of  demurrer  is  that  the  com- 
plaint does  not  allege  that  the  fictitious 
notice  was  inserted  or  impressed  at 
any  particular  place,  and  that,  for 
aught  that  appears,  the  book  might 
have  been  printed  in  Canada  and  have 
been  brought  here  for  sale.  The  com- 
plaint alleges  that  at  the  city  of  New 
York  the  defendant  did  publish  and 
issue  a  book,  called  "  Father  Tuck's 
Nursery  Rhymes,"  and  did  knowingly 
insert  and  impress  in  and  upon  said 
book  false  and  untruthful  notice.  The 
obvious  meaning  of  the  allegations  is 
that  the  publication  and  insertion  of 
the  notice  was  at  the  city  of  New  York. 
The  assertion  contained  in  the  whole 
complaint  is  that  the  defendant,  at 
New  York,  published  a  book  which  it 
had  not  copyrighted,  and  in  or  upon 
which  it  knowingly  inserted  a  false 
notice  of  copyright.  The  third  ground 
of  demurrer  is  that  the  complaint  does 


COS 


Volume  5. 


6372.  COPYRIGHT.  6372. 

IV.  That  the  said  book,  being  a  proper  subject  of  a  copyright,  was 
not  copyrighted  by  the  said  "-Raphael  Tuck  ^  Sons,  Ltd.,"  or  by 
^'■Raphael  Tuck  &>  Sons  Company,"  or  by  the  defendant  [or  by  any 
other  person  or  persons  and  assigned  to  defendant]  ;^  and  that  the 
notice  impressed  thereon  by  defendant  was  and  is  false  and  contrary 
to  the  statutes  of  the  United  States  in  such  case  made  and  provided, 
and  more  particularly  to  section  4963  of  the  Revised  Statutes  of  the 
United  States. 

V.  That  by  reason  of  the  premises  and  by  force  of  the  statute  in 
such  case  made  and  provided,  and  more  particularly  section  4963  of 
the  Revised  Statutes  of  the  United  States,  an  action  hath  accrued 
to  the  plaintiff  to  demand  and  have  from  the  defendant  the  sum  of 
one  hundred  dollars  forfeited  as  aforesaid  by  virtue  of  said  statute, 
the  said  one  hundred  dollars  being  part  and  parcel  of  the  sum  herein 
demanded. 

VI.  That  as  a  second  cause  of  action,  upon  information  and  belief, 
plaintiff  alleges,  that  heretofore  and  on  or  about  the  fifteenth  day  of 
May,  iB96,  the  defendant,  at  the  city  of  JVete'  York,  in  the  state  of 
New  York,  did  publish  and  issue  a  certain  book  entitled  ^^ Father 
Tuck's  Nursery  Rhymes,"  and  in  and  upon  said  book  did  knowingly 
insert  and  impress  a  false  and  untruthful  notice  that  the  same  was 
copyrighted,  which  notice  was  in  the  following  words:  ^^Copyright 
1S96  by  Raphael  Tuck  (Sr*  Sons,  Ltd.  "2 

VII.  That  the  said  book,  being  a  proper  subject  of  a  copyright, 
was  not  copyrighted  by  the  said  ^'■Raphael  Tuck  &"  Sons,  Ltd.,"  or  by 
^'■Raphael  Tuck  c^  Sons  Company,"  or  by  the  defendant  [or  by  any 
other  person  or  persons  and  assigned  to  defendant]  ;^  and  that  the 
notice  impressed  thereon  by  defendant  was  and  is  false  and  contrary 
to  the  statutes  of  the  United  States  in  such  case  made  and  provided, 

not  allege  that  the  false  notice  was  in-  fendant  had  not  obtained  a  copyright, 
serted  on  the  title-page  or  the  page  There  is  an  averment  that  the  book 
immediately  following.  Section  4963  was  not  copyrighted  by  the  defendant 
does  not  seem  to  require  that  the  false  corporation  under  either  of  its  names, 
notice  must  be  inserted  upon  one  of  but  that  allegation  is  not  equivalent  to 
the  pages  named  in  section  4962.  It  the  averment  that  it  had  not  obtained  a 
is  true  that  the  owner  of  the  copyright  copyright.  If  the  book  was  copyrighted, 
cannot  maintain  an  action  for  infringe-  and  if  the  defendant  was  the  owner  of 
ment  unless  he  inserted  his  notice  at  a  the  copyright  by  assignment,  such  a 
specified  place,  but  it  does  not  appear  state  of  facts  was  consistent  with  the 
from  section  4963  that  a  false  notice  of  averments  of  the  complaint.  It  is  true 
copyright  cannot  be  punished  if  it  is  that  there  is  an  averment  that  the  de- 
placed  upon  the  second  page  after  the  fendant  inserted  a  false  and  untruthful 
title-page,  or  is  placed  upon  the  cover  notice  that  the  book  was  copyrighted, 
of  the  book,  and  is  only  punishable  '  which  notice  was  in  the  following 
when  placed  upon  the  title-page  or  the  words,'  etc.;  but  when  the  pleader 
page  which  immediately  follows.  The  states  wherein  the  falsehood  con- 
language  of  the  section  is  more  broad,  sisted  he  does  not  state  that  it  consisted 
and  seeks  to  prevent  the  insertion  of  a  in  the  fact  that  the  book  was  not  copy- 
false  notice  '  in  or  upon  '  a  book."  righted,  but  that  it  was  not  copyrighted 
1.  The  addition  of  the  words  enclosed  by  the  corporation  which  was  mentioned 
by  [  ]  remedies  the  only  objection  to  the  in  the  notice.  The  objection  is  a  nar- 
complaint  sustained  by  the  circuit  row  one,  but  it  should  be  removed  by 
court.  On  this  point  the  court  ruled:  amendment." 
"Another  objection  to  the  complaint  is  2.  See  supra,  note  2,  p.  503. 
that  there  is  no  averment  that  the  de- 

604  Volume  5. 


6372.  COPYRIGHT.  6372. 

and  more  particularly  to  section  4963  of  the  Revised  Statutes  of  the 
United  States. 

VIII.  That  by  reason  of  the  premises  and  by  force  of  the  statute 
in  such  case  made  and  provided,,  and  more  particularly  section  4963 
of  the  Revised  Statutes  of  the  United  States,  an  action  hath  accrued 
to  the  plaintiff  to  demand  and  have  from  the  defendant  the  sum  of 
one  hi4ndred  dollars  forfeited  as  aforesaid  by  virtue  of  said  statute, 
the  said  one  hundred  dollars  being  part  and  parcel  of  the  sum  herein 
demanded. 

IX.  That  as  a  third  cause  of  action,  upon  information  and  belief, 
plaintiff  alleges  that  heretofore  and  on  or  about  the  Jirst  day  oi  June, 
iS96,  the  defendant,  at  the  city  of  JVew  York,  in  the  state  of  New 
York,  did  publish  and  issue  a  certain  book  entitled  '■'■Father  Tucks 
Nursery  Rhymes"  and  in  and  upon  said  book  did  knowingly  insert 
and  impress  a  false  and  untruthful  notice  that  the  same  was  copy- 
righted, which  notice  was  in  the  following  words:  '■'■Copyright  1896  by 
Raphael  Tuck  cr'  Sons,  Ltd."^ 

X.  That  the  said  book,  being  a  proper  subject  of  a  copyright,  was 
not  copyrighted  by  the  said  '■'■Raphael  Tuck  6^  Sons,  Ltd."  or  by 
^'■Raphael  Tuck  &>  Sons  Company,"  or  by  the  defendant  [or  by  any 
other  person  or  persons  and  assigned  to  defendant]  -^  and  that  the 
notice  impressed  thereon  by  defendant  was  and  is  false  and  contrary 
to  the  statutes  of  the  United  States  in  such  case  made  and  provided, 
and  more  particularly  to  section  4963  of  the  Revised  Statutes  of 
the  United  States. 

XI.  That  by  reason  of  the  premises  and  by  force  of  the  statute 
in  such  case  made  and  provided,  and  more  particularly  section  4963 
of  the  Revised  Statutes  of  the  United  States,  an  action  hath  accrued 
to  the  plaintiff  to  demand  and  have  from  the  defendant  the  sum  of 
one  hundred  dollars,  forfeited  as  aforesaid  by  virtue  of  said  statute, 
the  said  one  hundred  dollars  being  part  and  parcel  of  the  sum  herein 
demanded. 

XII.  That  as  a  fourth  cause  of  action,  upon  information  and  belief, 
plaintiff  alleges  that  heretofore  and  on  or  about  the  fifteenth  day  of 
June,  i896,  the  defendant,  at  the  city  oi  Netv  York,  in  the  state  of 
Ne7v  York,  did  publish  and  issue  a  certain  book  entitled  '■'■Father 
Tucks  Nursery  Rhymes,"  and  in  and  upon  said  book  did  knowingly 
insert  and  impress  a  false  and  untruthful  notice  that  the  same  was 

copyrighted,  which  notice  was  in  the  following  words:   '■^Copyright 
1896  by  Raphael  Tuck  ^  Sons,  Ltd."'^ 

XIII.  That  the  said  book,  being  a  proper  subject  of  a  copyright, 
was  not  copyrighted  by  the  said  "■Raphael  Tuck  6r  Sons,  Ltd.,"  or  by 
" Raphael  Tuck  df  Sons  Company"  or  by  the  defendant  [or  by  any 
other  person  or  persons  and  assigned  to  defendant]  ;2  and  that  the 
notice  impressed  thereon  by  defendant  was  and  is  false  and  contrary 
to  the  statutes  of  the  United  States  in  such  case  made  and  provided, 
and  more  particularly  to  section  4963  of  the  Revised  Statutes  of  the 
United  States. 

XIV.  That  by  reason  of  the  premises  and  by  force  of  the  statutes 

1.  See  supra,  note  2,  p.  503.  2.  See  supra,  note  i,  p.  504. 

606  Volume  5. 


6373.  COPYRIGHT.  6873. 

in  such  case  made  and  provided,  and  more  particularly  section  4963 
of  the  Revised  Statutes  of  the  United  States,  an  action  hath  accrued 
to  the  plaintiff  to  demand  and  have  from  the  defendant  the  sum  of 
one  hundred  dollars,  forfeited  as  aforesaid,  by  virtue  of  said  statute, 
the  said  one  hundred  dollars  being  part  and  parcel  of  the  sum  herein 
demanded. 

XV.  That  as  a  fifth  cause  of  action,  upon  information  and  belief, 
plaintiff  alleges  that  heretofore  and  on  or  about  the  twenty-fifth  day 
oi  June,  iS96,  the  defendant,  at  the  city  oi  New  York,  in  the  state  of 
JVew  York,  did  publish  and  issue  a  certain  book,  entitled  ^^  Father 
Tuck's  Nursery  Rhymes^"  and  in  and  upon  said  book  did  knowingly 
insert  and  impress  a  false  and  untruthful  notice  that  the  same  was 
copyrighted,  which  notice  was  in  the  following  words:  ^^  Copyright 
1896  by  Raphael  Tuck  &>  Sons,  Ztd."^ 

XVI.  That  the  said  book,  being  a  proper  subject  of  a  copyright, 
was  not  copyrighted  by  the  said  '■'■Raphael  Tuck  6-  Sons,  Ltd.,''  or  by 
'■'■Raphael  Tuck  cSr*  Sons  Company,''  or  by  the  defendant  [or  by  any 
other  person  or  persons  and  assigned  to  defendant]  -^  and  that  the 
notice  impressed  thereon  by  defendant  was  and  is  false  and  contrary 
to  the  statutes  of  the  United  States  in  such  case  made  and  provided, 
and  more  particularly  to  section  4963  of  the  Revised  Statutes  of  the 
United  States. 

XVII.  That  by  reason  of  the  premises,  and  by  force  of  the  statutes 
in  such  case  made  and  provided,  and  more  particularly  section  4963 
of  the  Revised  Statutes  of  the  United  States,  an  action  hath  accrued 
to  the  plaintiff  to  demand  and  have  from  the  defendant  the  sum  of 
one  hundred  dollars  forfeited  as  aforesaid  by  virtue  of  said  statute, 
the  said  one  hundred  dollars  being  part  and  parcel  of  the  sum  herein 
demanded. 

Wherefore,  plaintiff  demands  judgment  against  the  defendant  for 
the  sum  oifive  hundred  dollars,  together  with  the  costs  of  this  action. 

A.  Bell  Malcomson,  Attorney  for  Plaintiff. 
State  of  New  York, 
City  and  County  of  New  York. 

William  /.  Rigney,  being  duly  sworn,  deposes  and  says:  That  he 
is  the  plaintiff  herein;  that  he  has  read  the  foregoing  complaint  and 
knows  the  contents  thereof,  and  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  those  matters  therein  stated  to  be  alleged 
on  information  and  belief,  and  as  to  those  matters  he  believes  it  to 
be  true. 

William  J.  Rigney. 
Subscribed  and  sworn  to  before  me  thxs  first  day  oi  July,  iS96. 

Edmund  Congar  Brown, 

Notary  Public,  Kings  Co. 

III.  ACTION  FOR  VIOLATION  OF  COMMON-LAW  RIGHT  IN 
UNPUBLISHED  MANUSCRIPT.  • 

Form  No.  6373.* 

1.  See  supra,  note  2,  p.  503.  records  in   Press  Pub.  Co.  v.  Monroe, 

2.  See  supra,  note  i,  p.  504.  164  U.  S.  105.     It  will  not  be  found  in 

3.  This  complaint  is  taken  from  the     the  reported  case. 

506  Volume  5. 


[•  ss. 


6373.  COPYRIGHT.  6373. 

\Circuit  Court  of  the  United  States  for  the  Southern  District  of 
Neiv  York. 

Harriet  B.  Monroe,  plaintiff,  ) 

against  >•  Complaint, 

The  Press  Publishing  Co.,  defendant.  ) 

The  complainant,  by  George  H.  Yeaman,  her  attorney,  complains 
of  the  defendant  and  says  as  follows:]^ 

Now,  and  at  all  the  times  hereinafter  to  be  mentioiied,  the  plaintiff  is 
and  has  been  a  citizen  of  the  state  of  Illinois,  and  a  resident  therein, 
to  wit,  in  the  city  of  Chicago. 

The  defendant  now  is  and  at  all  the  times  hereinafter  to  be  mentioned 
has  been  a  citizen  of  the  state  of  New  York,  and  a  resident  therein, 
to  wit,  in  the  city  of  New  York,  that  is  to  say,  the  defendant  is  and 
at  all  times  aforesaid  has  been,  a  corporation  aggregate,  created  and 
existing  by  force  of  and  under  the  laws  of  the  aforesaid  state  of  New 
York,  and  doing  business  therein,  and  having  its  chief  place  of  busi- 
ness in  the  aforesaid  city. 

The  business  of  this  defendant  now  is  and  at  all  the  times  herein- 
after to  be  mentioned  has  been  that  of  editing,  publishing,  selling 
and  distributing  a  news-sheet  or  news-paper,  called  the  World.  Now 
and  at  all  times  aforesaid,  and  for  many  years  past,  this  news-paper 
has  had  a  very  large  and  widely  extended  circulation,  particularly  it 
has  and  has  had  a  great  number  of  purchasers  and  readers  in  the 
city  of  Chicago. 

Prior  to  September,  i892,  this  plaintiff  had  composed  and  written 
out  in  manuscript,  but  had  not  published,  a  certain  lyrical  ode  or 
song,  the  work  of  her  intellect  and  imagination,  which  was  of  value 
to  her  as  a  literary  product.  On  or  about  the  twenty-third  of  Septem- 
ber aforesaid,  a  certain  society  or  committee  styled  the  "  Committee  on 
Ceremonies  of  the  World's  Columbian  Exposition"  and  composed  of 
certain  members  of  the  Chicago  Directory  and  certain  members  of 
the  National  Commission,  the  two  bodies  jointly  governing  said 
exposition,  made  an  agreement  with  the  plaintiff,  wherein  and 
whereby,  for  a  good  consideration,  they  were  licensed  by  her  to  use 
and  were  given  exclusive  use  of  said  ode  for  the  following  purposes, 
and  these  only:  That  is  to  say,  to  have  the  same  read  or  declaimed 
or  sung,  or  partly  read  and  partly  sung,  on  the  public  occasion  of 
the  dedicatory  ceremonies  of  the  World's  Columbian  Exposition, 
which  ceremonies  were  to  be  performed  in  the  city  of  Chicago,  on  the 
twenty-first  day  of  October  next  thereafter: 

This  exclusive  right  of  use  was  limited  by  the  occasion  aforesaid, 
and  by  the  time  and  place  aforesaid. 

The  general  ownership  of  the  literary  product  remained  in  the 
plaintiff,  who  had  the  right  of  unlimited  publication  from  and  after 
the  date  aforesaid  and  the  right  of  publication  or  of  representation 
on  said  twenty-first  day  of  October  in  other  cities  than  Chicago. 

The  right  of  publication  and  of  public  representation  was  of  great 
value  to  this  plaintiff,  not  only  because  the  ode  was,  in  itself,  a  pro- 

1.  The  matter  within  [  ]  does  not  appear  in  the  printed  record  of  the  case, 
but  has  been  added  to  render  the  form  complete. 

807  Volume  5. 


6373.  COPYRIGHT.  6373. 

duction  worthy  to  bestow  honor  and  profit  upon  its  author,  but 
because  it  had  been  greatly  distinguished  in  having  been  chosen  as 
the  commemorative  ode  to  be  read  and  sung  on  an  occasion  of  such 
celebrity  as  were  the  dedicatory  ceremonies  of  the  Columbian 
Exposition. 

The  ode  had  been  composed  or  written  months  before,  and  as 
early  as  May  preceding.  During  the  ten  days  preceding  the  twenty- 
third  day  of  September  aforesaid,  the  date  when  the  plaintiff  granted 
the  aforesaid  license  to  the  Columbian  committee,  she  delivered  to 
the  same  the  manuscript  of  her  ode,  for  the  purposes  expressed  in 
the  contract  of  license,  and  with  the  injunction  that  the  manuscript 
should  be  held  secret,  in  order  that  the  plaintiff's  right  of  property 
in  the  literary  product  should  be  preserved  inviolate,  and  especially 
that  premature  publication  should  be  avoided.  The  utmost  care  was 
taken  both  by  the  plaintiff  and  by  the  committee  on  ceremonies  to- 
prevent  or  forestall  piratical  attempts  on  the  part  of  news-papers. 

Nevertheless,  this  defendant,  through  its  agents  and  servants, 
some  time  between  September  IJf  and  September  23,  iS92,  got  access 
to  the  room  or  rooms  of  this  committee,  and  stole  or  otherwise  un- 
lawfully procured  the  manuscript  aforesaid,  or  a  copy  thereof,  and 
sent  the  same  to  its  publication  bureau  in  the  city  of  JV'e7ii  York. 

As  soon  as  it  was  made  known  to  the  plaintiff  that  the  World 
possessed  a  copy  and  intended  to  publish  the  poem,  she  sent  or 
caused  to  be  sent  to  the  World  office  in  the  city  of  Ne7v  York,  that  is 
to  say,  to  the  chief  bureau  of  the  defendant,  where  its  editors  and 
publishers  and  responsible  officers  were,  and  to  all  other  news-papers 
in  correspondence  with  said  Associated  Press,  a  message  by  way  of 
the  telegraph,  which  message  distinctly  announced  that  this  ode,  and 
every  manuscript  copy  thereof,  were  the  exclusive  property  of  the 
author;  that  it  would  be  a  gross  violation  of  the  author's  rights  to- 
prematurely  publish  the  same,  and  other  cautions  of  the  same  import. 
This  message  was  received  by  the  defendant,  which  quickly  acknowl- 
edged the  same,  utterly  defying  the  plaintiff's  right  and  saying  in 
part  what  follows: 

"We  (that  is,  the  defendant)  will  take  our  chances  on  it.  Explain 
to  her  (this  plaintiff)  that  the  World  could  not  miss  an  opportunity 
to  give  the  public  such  a  grand  poem." 

Accordingly,  on  September  25th  aforesaid,  this  defendant  published, 
in  what  is  styled  a  "  Sunday  Edition"  the  aforesaid  ode,  or  what  pur- 
ported to  be  the  same,  to  the  great  and  irreparable  harm  of  the 
plaintiff,  to  wit,  there  appeared  at  the  head  of  the  first  column,  on 
the  first  page  of  the  aforesaid  "  Sunday  Edition  "  an  announcement 
which  read  as  follows: 

♦'The  World's  Fair  Ode. 

A  Tribute  to  Columbia  which  will  be  Read  and  Sung  at  the  Dedi- 
cation Ceremonies." 

This  was  followed  by  what  purported  to  be  an  analysis  of  the 
poem,  which  analysis  was  grotesquely  incorrect  and  calculated  to 
produce  a  false  and  even  ludicrous  impression  of  the  work.  Next 
followed  the  aforesaid  ode,  or  rather  a  caricature  of  it,  through 
nearly  four  columns  of  the  printed  sheet.     This  piratical  publication. 

508  Volume  5. 


6373.  COPYRIGHT.  6373. 

contained  no  less  than  sixty-two  errors,  some  of  them  so  important 
as  to  make  portions  of  the  poem  appear  meaningless. 

This  piratical  publication -appeared  nearly  one  month  before  the 
occasion  of  the  public  ceremonies  in  Chicago.  It  was  published 
throughout  the  whole  country,  as  was  hereinbefore  alleged,  on  the 
twenty-fifth  day  of  September.  On  this  day,  as  defendant  itself  boasted, 
there  was  a  sale  of  one-half  million  of  copies  of  its  journal. 

As  a  consequence  of  this  piratical  and  premature  publication,  the 
rehearsal  of  the  ode  on  the  anniversary  festival  awakened  much  less 
interest  than  it  would  otherwise  have  done,  and  the  ode  itself  was 
much  less  favorably  received  than  it  would  have  been,  if  it  had  been 
correctly  presented  for  the  first  time  on  so  distinguished  an  occasion. 
This  result  was  emphasized  and  deepened  by  the  fact  that  the  pub- 
lication was  so  full  of  errors  that,  in  itself,  it  reflected  upon  the 
original  work  great  discredit. 

Another  consequence  of  the  defendant's  misdeeds  was  that  the 
plaintiff  was  deprived  of  opportunity  to  license  the  reading  or  singing 
of  the  ode  in  other  large  cities  than  Chicago  on  the  same  anniversary 
and  on  subsequent  days,  because  the  acts  of  the  defendant  herein 
complained  of  had  made  the  ode  common  property.  The  aforesaid 
wrongful  acts  of  the  defendant  have  deprived  the  plaintiff  of  gains 
she  would  otherwise  have  received  in  the  sale  of  her  ode. 

These  aforesaid  wrongful  acts  have  also  afflicted  damage  upon  the 
plaintiff's  reputation  as  an  author.  Prior  to  the  date  of  the  aforesaid 
piratical  publication  she  had  written  and  published  many  essays,  both 
in  prose  and  verse,  and  she  enjoyed  a  favorable  and  worthy  reputa- 
tion, some  of  her  poems  having  been  published  and  widely  circulated. 

As  a  further  element  of  damages,  this  plaintiff  insists  that  the 
printing  and  publication  aforesaid,  and  the  false  descriptive  sketch, 
and  the  absurd  analysis  of  the  poem  which  accompanied  it,  was 
a  wilful,  wanton,  defiant  and  unlawful  trespass  on  the  rights  of  this 
plaintiff. 

Over  this  offensive  and  vulgar  notoriety,  which  was  thus  flagrantly 
thrust  upon  her,  the  plaintiff  was  subjected  to  much  shame  and  mor- 
tification and  great  personal  annoyance. 

Wherefore,  the  plaintiff  alleges  damages  in  the  sum  of  twenty-five 
thousand  dollars,  and  prays  that  she  may  have  judgment  against  the 
defendant  to  the  amount,  besides  costs. 

\George  H.  Yeaman, 

Attorney  for  Plaintiff.]' 

[{Verification.)Y 

1.  The  matter  within  [  ]  does  not  2.  For  form  of  verification  to  coni- 
appear  in  the  record  of  the  case,  but  plaint  in  the  United  States  circuit 
has  been  added  to  complete  the  form,     court  consult  the  title  Verifications. 

009  Volume  5. 


CORAM   NOBIS. 

Ste  the  tOU  EJLROR,  WRIT  OF. 


CORAM  VOBIS. 

Set  tit  mu  ERROR^  WRIT  OF. 


CORONERS  INQUESTS. 

Bt  Fkascb  X.  IteecEssT. 

L  CmUBATB  THAT  IBQDEST  IS  UKKECESSAST,  51a 
1.  Bj  Ctrtmer,  510. 
s.  Bf  M^eml  Fxmaumer,  511. 

n.  tbuie,  511. 
m.  suBfyuu^sM. 

lY.  KXAWWATW  OP  WITIESS,  516. 
¥.  IMHIIUIIOV.  >i6. 
YL  WAKBAFT  of  ASSEST,  >i9. 

YD.  WAiXAvr  OF  coMMTnrarr,  521. 

CBOaS-REFEIREXCES. 

Ftr  Ffrms  emtmetted  with  tit  smtjett  of  Bail  mmd  Recegmxmmet,  see  the 

tHIt  BAIL  AND  RECOGXJ'ZAXCE,  toL  3,  p.  i. 
F&r  F0nmsmf  PltmtEi^  im  Aetimu  0m  m  BmH  Bmid  »r  ReitgwoMmce,  sre 

tit  tiOt  BONDS  AND  UNDERTAKINGS  {ACTIONS 

ON\  ToL  3,  p.  52«L 
F0r  wrnUtrs  0/  Prmt^ct,  see  tie  title  CORONER'S  INQUESTS, 

5  EvcTCiJtvjEiMA  or  Pleadoeg  asj>  Practice,  p.  38. 

L  GBSHnCATE  THAT  ISQUEST  IS  UlHECESSABT. 
1.  Bj  Coroner. 

Fan  M«t  6374- 
(M.  J.  Gc»L  S«.  (1895)1  Pu  aqli.  f6u) 

X,Jekm  SmUi,  oac  of  the  cwouos  of  die  ooantj  of  Bergem,  haTing 
■oCioe  of  the  death  iAJ^kmD^e.  and  having  ▼ieved  the  dead  bodj  of 
the  said  Jsim  ZW,   and  made  inqidrf  icspecling  his  deadi,   do 

510  Volues. 


6375.  CORONER'S  INQUESTS.  6376. 

hereby  certify,  that  I  am  satisfied  no  guilt  attaches  to  any  person 
or  persons  by  reason  of   the   said   death,    and    that   an    inquest  is 


unnecessary.^ 


John  Smithy  Coroner. 
2.  By  Medical  Examiner. 

Form  No.  6375. 
(Conn.  Gen.  Stau  (188S),  §  aoo6.. 

I,  the  undersigned,  John  Smith,  medical  examiner,  having  notice  of 
the  death  oi  John  Doe,  a  white  (or  colored)  male,  twenty-three  years 
old,  late  of  the  city  of  Bangor,  state  of  Maine^  who  on  the  eighth 
day  of  May,  a.  d.  \W7,  was  found  dead  (or  died)  in  the  town  of 
Middlesex,  having  viewed  the  body  of  said  deceased,  and  made " 
immediate  inquiry  concerning  his  death,  do  hereby  certify  that  said 
John  Doe  died  \n  Middlesex  on  Xht.  eighth  day  oiMay,  a.  d.  i8P7,  from 
natural  cause,^  and  that  I  am  satisfied  that  the  said  death  was  not 
caused  by  the  criminal  act,  omission  or  carelessness  of  any  other 
person  or  persons,  and  that  an  inquest  is  unnecessary.  In  accordance 
with  the  statute  I  have  delivered  the  body  of  said  deceased  to  his 
friends  (or  to  the  town  authorities)  for  burial. 

Dated  May  8,  iS97. 

John  Smitk,  Medical  Examiner. 

11.  Venirk.* 

Form  No.  6376. 
(Fla.  Rev.  Stat.  (1S92),  p.  913.) 
State  of  Florida,  \ 
Leon  County.        \ 

In  the  name  of  the  State  of  Florida  —  To  any  constable  of  said  county : 
Whereas,  I  have  been  notified  that  the  dead  body  of  John  Doe  is 

1.  In  cases  where  it  shall  have  be-  in  its  identification,  always  slating  sex, 
come  necessary  for  the  coroner  to  bury  color,  apparent  age,  color  and  cut  of 
the  dead  body,  the  certificate  shall  con-  hair,  beard,  color  of  eyes,  and  all 
tinue  and  say,  "  That  the  said  deceased  special  marks  or  deformities  of  body, 
has  no  friends  who  appear  to  take  4.  Or  suicide  or  accident,  as  the  case 
charge  of  and  bury  his  (01;  ktr)  body,  may  be,  stating  manner  of  suicide  or 
nor.  as  I  can  ascertain,  has  he  (or  slu)  nature  of  accident. 

left  property,  sufficient  and  within  reach         S.  SequritM  of  YeBire.  —  The  form  of 

of  the  overseers  of  the  poor,  to  defray  venire   prescribed  in  various  states  is 

the  expenses  thereof;  I  have  therefore  substantially  like   that   set   out  infra, 

buried  the  same."  Forms  Nos.  6376  to  6379.     For  statutes 

2.  This  certificate  must  be  mailed  or  relating  to  the  venire  see  as  follows: 
delivered    to   the  county  coroner    im-        Arisema. —  Pen.  Code  (1887),  §  1309. 
mediately  after  the  medical  examiner         CaM/arma. —  Pen.  Code  (1897),  §  1510. 
is  satisfied  that  the  death  has  not  been         CaiiraJg.  —  Mills'  Anno.  Stat.  (1891), 
caused  bv  the  fault  of  another.     Conn.  §  870. 

Gen.  Stat.  (1S8S),  §  2006.  Gmiurticmt.  —  Gen.    Stat.    (188S),    § 

S.  Or,  if  an   unknown  person,  state     2009. 
that    fact  and    carefully  describe    the         Dtlaxoare.  —  Laws  (1893),  p.  261. 
body,  its  clothing,  and   articles  found         Florida.  —  Rev.  Stat.  (1892),  |  3011. 
on  or  near  it  which  may  be  of  service        Idaho. —  Rev.  Stat.  (1887),  §  8377. 

511  Volume  5. 


6376. 


CORONER'S  INQUESTS. 


6376. 


lying  at  (^Here  describe  the  place  where  the  body  is  found),  in  said 
county,  and  I  have  good  reason  to  believe  that  his  death  was  caused 
by  the  criminal  act  or  negligence  of  another  (^Here  set  out  the  grounds 
of  such  opinion)-^  you  are  hereby  required  to  forthwith  summon  a  jury 
of  good  and  lawful  men  of  said  county,  not  less  than  six  in  all,  to 


Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  981,  par.  13. 

Iowa.  —  Code  (1897),  §  515. 

Kansas.  —  Gen.  Stat.  (1889),  §  1780. 

Kentucky.  —  Stat.  (1894),  ^  528. 

Maine.  —  Rev.  Stat.  (1883),  c.  139,  §  i. 

Maryland.  — '?\x\i.  Gen.  Laws  (1888), 
art.  22. 

Michigan.  —  How.  Anno.  Stat.  (1882), 

§^9584,  9595- 

Mississippi. — Anno.  Code  (1892),  §  816. 

Missouri.  —  Rev.  Stat.  (1889),  §  2442. 

Montana.  — Pen.  Code  (1895),  §  2790. 

N^ebraska.  —  Comp.  Stat,  (1897),  §§ 
2198,  2199. 

Nevada.  —  Gen.  Stat.  (1885),  §   2256. 

New  Hampshire. — Pub.  Stat.  (1891), 
c.  262,  §  3. 

New  Jersey. —  Gen.  Stat.  (1895),  p. 
898,  §  7. 

N'orth  Carolina.  —  Code  (1883)  §  657. 

North  Dakota.  —  Rev.  Codes  (1895), 
§§  2009,  2010. 

Oregon,  —  Hill's  Anno.  Laws  (1892), 
§  1660. 

South  Carolina.  —  Crim.  Stat.  (1893), 
§580. 

Utah.  —  Rev.  Stat.  (1898),  §§  1223, 
1224. 

Virginia.  —  Code  (1887),  §  3938. 
West  Virginia. — Code  (1887),  p.  932, 

§1. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  4866. 

Wyoming.— Re^v.  Stat.  (1887),  §  1879. 

Oath  of  Jurors.  —  The  statutes  pre- 
scribing the  form  and  method  of  ad- 
ministering the  oath  of  the  jurors  are 
as  follows: 

Alabama. — Crim.  Code  (1886),  § 
4803. 

Arizona.  —  Pen.  Code  (1S87),  §  2310. 

California. —  Pen.  Code  (1897),  §1511. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§871- 

Connecticut.  — G^n.  Stat.  (r888),  § 
3264. 

Delaware.  —  Laws  (1893),  p.  261. 

Florida.  —  Rev.  Stat.  (1892),  §  3015. 

Idaho.  —  Rev.  Stat.  (1887),  §  8378. 

Illinois.  — Sia.rr  &  C.  Anno.  Stat. 
(1896),  p.  982,  par.  16. 

/owa.  —  Code  (1897),  §  519. 

Kansas.  —  Gen.  Stat.  (1889),  §  ^7^^- 

Kentucky.  — Stat.  (1894),  §  528. 


Maine.  —  Rev.  Stat.  (1883),  c.  139,  §  3. 
Michigan,  —  How.  Anno.  Stat.  (1882), 

§§  9585.  9595- 

Mississippi. — Anno.  Code  (1892),  §  819. 

Missouri.  —  Rev.  Stat.  (1889),  §  2446. 

Montana.  —  Pen.  Code  (1895),  §  2791. 

Nebraska. — Comp.  Stat.  (1897),  §  2201. 

Nevada.  —Gen.  Stat.  (1885),  §  2258. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  262,  §  7. 

New  Jersey.  —  Gen.  Stat.  (1895),  p. 
899,  §  ID. 

North  Carolitta.  — Code  (1883),  §  657. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  2011. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§  1661, 

South  Carolina.  —  Crim.    Stat.   (1893), 

§583. 

Tennessee.  — Code  (1896),  ^  7278. 
Utah.  —  Rev.  Stat.  (1898),  §  1226. 
Virginia.  —  Code  (1887),  §  3941. 
West  Virginia.  —  Code  (1891),  p.  949, 

§3. 

Wisconsin. — Sanb.  &  B.  Anno.  Stat. 
(1889),  §  4869. 

Wyofning.-fiev.  Stat.  (1887),  §  1880. 

Charge  to  Jurors.  —  For  statutes  relat- 
ing to  the  coroner's  charge  to  the  jurors 
see  as  follows: 

Florida.  —  Rev.  Stat.  (1892),  §  3016. 

Georgia.  —  3  Code  (1895),  ^  1262. 

Maine.  —  Rev.  Stat.  (1883),  c.  139,  §  8. 

Mississippi.  —  Anno.  Code  (1892), 
§821. 

Missouri.  —  Rev.  Stat.  (1889),  §  2447. 

New  Jersey. — Gen.  Stat.  (1895),  p.  899, 

New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  262,  §  9. 

South  Carolina. — Crim.   Stat.   (1893), 

§584- 

1.  Oroands  for  Inqnest.  —  Unless  there 
shall  appear  to  the  satisfaction  of  the 
coroner,  after  considering  the  circum- 
stances attending  the  cause  of  death, 
that  he  has  good  reason  to  believe  that 
the  death  was  caused  by  the  criminal  act 
and  negligence  of  another,  no  inquest 
shall  be  held  nor  shall  any  compensa- 
tion be  allowed  for  a  jury,  and  if  in  the 
opinion  of  the  coroner  an  inquest  ought 
to  be  held,  he  shall  include  the  grounds 
of  that  opinion  in  the  order  for  the  jury. 
Fla.  Rev.  Stat.  (1892),  §  3010. 


512 


Volume  5. 


6377.  CORONER'S  INQUESTS.  6378. 

appear  before  me  immediately  at  the  place  where  said  body  is  lying 
in  said  county,  to  inquire,  upon  a  view  of  the  said  body,  how  and  in 
what  manner  and  by  whom  he  came  to  his  death. 
Given  under  my  hand  and  seal  this  tenth  day  oi  May,  a.  d.  i897. 

Charles  Foe.     (seal) 
Coroner. 

Form  No.  6377. 

(Iowa  Code  (1897),  §  517.)  ' 

State  of  I(nva,  ) 
Allamakee  County.  \ 
To  any  peace  officer  of  said  county: 

In  the  name  of  the  state  of  Iowa  you  are  hereby  required  to  sum- 
mon forthwith  three  electors  of  your  county,  to  appear  before  me  at 
(^natne  the  place),  at  (name  the  day  and  hour  or  say  forthwith'),  then  and 
there  to  hold  an  inquest  upon  the  dead  body  of  John  Doe,  there  lying, 
and  find  by  what  means  he  died. 

Witness  my  hand  this  tenth  day  oi  June,  a.  d.  \W7. 

George  Jones, 
Coroner  of  Allamakee  County. 


Form  No.  6378. 

(Me.  Rev.  Stat.  (1883),  c.  139,  §  i.)» 

(seal)  To  either  of  the  constables  in  the  town  of  Paris,^  in  the 
county  of  Oxford,  Greeting: 

In  the  name  of  the  State  of  Maine,  you  are  hereby  required 
immediately  to  summon  six  good  and  lawful  men  of  said  town  of 
Paris,  to  appear  before  me,  one  of  the  coroners  of  said  county  of 
Oxford,  at  the  dwelling-house  ol  John  Smith,  within  said  town,  at  the 
hour  of  elei'enA.  u.,  then  and  there  to  inquire  upon  and  view  the  body 
oi  John  Doe,  there  lying  dead,  how  and  in  what  manner  he  came  to 
his  death.     Fail  not  herein  at  your  peril. 

Given  under  my  hand  and  seal,  at  Oxford,  the  ninth  day  of  Aprils 
A.  D.  1 897. 

Charles  Francis. 

1.  In  New  Hampshire  the  coroner  is-  on  the  tenth  day  of  April,  at  ten  o'clock 
sues  a  summons,  directed  to  three  in  the  forenoon,  then  and  there  to  in- 
reputable  persons,  one  of  whom  must  quire,  upon  a  view  of  the  body  oi  fohn 
be  a  justice  of  the  peace.  The  form  Smith  {(ix  a  person  unknown), y^^^r^Xyxn^ 
set  out  in  N.  H.  Pub.  Stat.  (1891),  §  3,  dead,  how  and  in  what  manner  he 
is  as  follows:  came  to  his  death.  Fail  not  of  appear- 
"  The  State  of  New  Hampshire.  ance  at  your  peril. 

Strafford,  ss.     To  John  Doe,  Richard        Given  under  my  hand  and  seal,  at 

Roe  and  Frank  Smith:  Madbury,  in  said  county,  the  ninth  day 

(seal)     In  the  name  of  the  state  of  of  April,  iSg^. 
New  Hampshire,    you   are    hereby   re-  John  Ray,  Coroner." 

quired  to  appear  before  me,  John  Ray,        2.  The  same  or  an  adjoining  town  in 

one  of   the   coroners  of  the  county  of  the  same  county.    Me.  Rev.  Stat.  (1883), 

Strafford,     at     the    dwelling-house    of  c.  139,  §  I. 
Ralph  Jones,  in   the  town  oi  Madbury, 

5  E.  of  F.  P.  —  33.  518  Volume  5. 


6379. 


CORONERS  INQUESTS. 


6379. 


Form  No.  6379. 

(N.  J.  Gen.  Stat.  (1895),  p.  898,  §  7./ 

Bergen  county,  to  wit:  The  state  of  New  Jersey  to  any  of  the  con- 
stables of  the  said  county: 

You  are  required  immediately  upon  sight  hereof,  to  summon  six^ 
good  and  lawful  men  of  the  said  county  of  Bergen  to  be  and  appear 
before  mt,  John  Smith,  ont  of  the  coroners  (or  Justices)!^  of  the  county 
aforesaid,  at  31  Pearl  street,  Hackensack,  in  the  said  county,  on  the 
second  day  ol  June,  iS97,  at  the  hour  of  nine  o'clock  in  they^r^noon  of 
the  same  day,  then  and  there  to  inquire  of,  do  and  execute  all  such 
things  as,  on  behalf  of  the  state,  shall  be  lawfully  given  them  in 
charge  touching  the  death  of  John  Doe  (or  a  person  unknown).  And 
be  you  then  there  to  certify  what  you  shall  have  done  in  the  premises, 
and  further  to  do  and  execute  what,  in  behalf  of  the  said  state,  shall 
be  then  and  there  enjoined  upon  you. 

Given  under  my  hand  and  seal,  at  Hackensack,  in  said  county, 
the  first  day  of  June,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-seven. 

(seal)  John  Smith,  Coroner. 


III.  SUBPffiNA.* 


1.  Missouri.  —  Substantially  the  same 
form,  drawn  under  Mo.  Rev.  Stat.dSSg), 
§  2442,  is  given  in  Mo.  Rev.  Stat.  (1889), 
p.  2263,  No.  151.  This  form,  however, 
is  not  under  seal. 

2.  The  jury  shall  consist  of  six  jurors. 
N.  J.  Gen.  Stat.  (1895),  p.  903,  «i  37. 

3.  A  justice  of  the  peace  is  only  author- 
ized to  act  as  a  coroner  when  a  coroner 
cannot  be  had  in  due  time  to  take  the 
inquest.  If  the  condition  of  the  dead 
body  should  be  such  that  it  be  mani- 
festly improper,  in  the  judgment  of 
ordinary  men,  to  defer  its  burial  long 
enough  to  notify  a  coroner,  in  such  case 
the  justice  would  be  authorized  to  act. 
The  fact  that  a  justice  may  be  more 
conveniently  located,  that  he  has  re- 
ceived first  notice,  that  he  has  per- 
formed in  good  faith  the  first  official 
act  believing  that  a  coroner  could  not 
be  had  in  due  time  —  no  one  of  these 
facts,  or  all  of  them  together,  will 
authorize  a  justice  to  act  when  it  ap- 
pears plainly  that  a  coroner  might 
have  been  had  in  due  time.  Chadwick 
V.  Errickson,  40  N.  J.  L.  159. 

4.  For  forms  of  subpoena,  generally,  con- 
sult the  title  Subpcena,  and  for  statutes 
relating  especially  to  the  coroner's  sub- 
pcena see  as  follows: 

Arizona.  —  Pen.  Code  (1887),  §  2311. 
Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§761. 


California.  —  Pen.  Code  (1897),  § 
1512. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§872. 

Connecticut.  —  Gen.  Stat.  (1888),  § 
2016. 

Delaware.  —  Laws  (1893),  p.  262. 

Florida.  —  Rev.  Stat.  (1892),  §  3018. 

Idaho.  —  Rev,  Stat.  (1887),  §  8379. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  982,  par.  18. 

Io7va.  —  Code  (1897),  §  520. 

ATansas.  — Gen.  Stat.  (1889),  §  1782. 

Maine.  —  Rev.  Stat.  (1883),  c.  139^ 
§5. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§§  9586,  9595- 

Mississippi.  —  Anno.  Code  (1892),  § 
818. 

Missouri.  —  Rev.  Stat.  (1889),  §  2449. 

Montana. —  Pen.  Code  (1895),  S  2792. 

Nebraska.  —  Comp.  Stat.  (1897),  § 
2203. 

Nevada.  — G&n.  Stat.  (1885),  g  2259. 

N'cTv  Hampshire.  —  Pub.  Stat.  (1891), 
c.  262,  §  8. 

New  Jersey. — Gen.  Stat.  (1895),  p. 
899,  §  12. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  2012. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
1221. 

Oregon. — Hill's  Anno.  Laws  (1892),. 
§  1662. 


514 


Volume  5. 


6380.  CORONER'S  INQUESTS.  6381. 

Form  No.  6380. 

(Mo.  Rev.  Stat.'(i889),  p.  2263,  No.  153.)' 

State  of  Missouri,  ) 
County  of  Barton.  J 

The   State   of  Missouri  to  John  Ren,  John   Smith  and  John  Pen^ 
Greeting: 

You  are  hereby  commanded  to  appear  forthwith  before  me,  Henry 
C.  Collins,  coroner  of  the  county  of  Barton,  and  an  inquest  now  sit- 
ting at  Lamar,  in  said  county,  to  be  examined,  and  to  declare  your 
knowledge  concerning  the  manner  in  which  John  Jones  (or  a  certain 
person  unknown),  there  lying  dead,  came  to  his  death,  and  all  other 
matters  on  which  you  shall  be  examined;  and  hereof  fail  not  at  your 
peril. 

Given  under  my  hand,  this  tenth  day  of  March,  iS98. 

Henry  C.  Collins,  Coroner 

Form  No.  6381. 

(Cook's  N.  Y.  Code  Crim.  Proc.  (1891),  p.  481,  No.  271.) 

State  of  Ne7u  York,      ") 
County  of  New  York.  \ 

In  the  name  of  the  People  of  the  State  of  New  York. 
The  People  of  the  State  of  New  York  to  Charles  Jones,  George  Davis 
and  William  Ross: 

We  command  you  and  each  of  you,  that  all  excuses  and  business 
being  laid  aside,  to  appear  in  your  proper  persons  before  the  under- 
signed, one  of  the  coroners  of  said  county  of  New  York,  No.  S16  Sixth 
avenue,  in  the  city  of  New  York,  in  said  county,  on  the  tenth  day  of 

South  Carolina.  —  Crim.  Stat.  (1893),  Mississippi.  —  Anno.    Code.   (1892),  § 

§  587.  818. 

Rhode  Island.  —  Gen.  Laws  (1896),  c.  Missouri.  — Rev.  Stat.  (1889),  §  2450. 

287,  §  18.  Nebraska.  —  Comp.     Stat.    (1897),     § 

Tennessee.  —  Code  (1896),  p  7279.  2204. 

Utah.  —  Rev.  Stat.  (1898),  §  1227.  New  Hampshire.  —  Pub.  Stat.  (1891), 

Virginia.  —  Code  (1887),  S  3939-  c.  262,  §  11. 

West  Virginia. — Code  (1891),  p.  949,  New  Jersey. — Gen.   Stat.    (1895),    p. 

%  I.  899,  §  12. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat.  North  Dakota.  —  Rev.  Codes   (1895), 

(1889),  §  4870.  ^  2013. 

Wyoming.— Rev.  Slait.  (1887),  §  1881.  Ohio.  —  B&tcs'  Anno.  Stat.  (1897).  § 

Oath  of  Witnesses.  —  For  statutes  re-  1221. 

latingto  the  oath  to  be  administered  to  South  Carolina.  —Crim.  Stat.  (1893), 

witness  see  as  follows:  §  590» 

Arkansas.  — S&ndi.  &   H.  Dig.  (1894),  67a/4.  — Rev.  Stat.  (1898),  §  1228. 

§  753.  Virginia. — Code  (1887),  §  3942. 

Colorado.  —  Mills'  Anno.  Stat.  (1891),  West  Virginia.  —  Code  (1891),  p.  950, 

§  873.  §  4- 

Florida.  —  Rev.  Stat.  (1892),  §  3018.  Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 

Iowa.— Code  (1897),  §  520.  (1889),  §  4871. 

Kansas.  —  Gen.  Stat.  (1889),  §  1783.  Wyoming.  —  Rev.  Stat.  (1887),  §  1882. 

j1/»VAiVa«.  —  How.  Anno.  Stat.  (1882),         I.  Missouri.— K^v.    Stat.     (1889),    § 

§§  9587,  9595.  2449- 

515  Volume  5. 


6382.  CORONERS  INQUESTS.  6383. 

May,  1 897,  at  nine  o'clock  a.  m.  on  that  day,  to  give  evidence  con- 
cerning the  death  of  John  Roe.     Hereof  fail  not  at  your  peril. 
Dated  at  New  York  this  ninth  day  of  May,  i897. 

John  Smith,  Coroner. 

IV.  EXAMINATION  OF  WITNESS. 


State  of  New  York, 

ss. 


Form  No.  6382. 

(Cook's  N.  Y.  Code  Crim.  Proc.  (1891),  p.  483,  No.  279.)* 

County  of  New  York.  ] 

Examination  of  witnesses  produced,  sworn  and  examined  on  this 
eleventh  day  of  May,  at  No.  213  Sixth  avenue,  Ne7v  York  City,  before 
John  Smith,  coroner,  George  Jones,  Frank  Ross,  (^Here  set  forth  the 
names  of  the  jurors),  good  and  lawful  men  of  said  county,  duly  sum- 
moned and  sworn  by  the  said  coroner  to  inquire  how  and  in  what 
manner  and  when  and  where  John  Doe  came  to  his  death  and  who 
such  person  was,  and  into  all  the  circumstances  attending  such  death, 
and  to  make  true  inquisition  according  to  the  evidence  or  arising 
from  the  investigation  of  the  body. 

Richard  Roe,  being  produced  and  sworn,  says  that:  (Jlere  insert  his 
testimony^ . 

Richard  Roe.. 

Subscribed  and  sworn  before  me  this  eleventh  day  of  May,  1 S97. 

John  Smith,  Coroner. 

(^Add also  evidence  of  other  witnesses  in  a  similar  manner.') 

I  do  hereby  certify  that  the  testimony  of  the  several  witnesses 
appearing  upon  the  foregoing  inquest  was  reduced  to  writing  by  me, 
and  the  same  subscribed  by  said  witnesses  in  my  presence,  and  that 
the  said  testimony  is  the  whole  of  the  testimony  taken  on  such 
inquest,  and  that  the  same  is  correctly  stated  as  given  by  the  wit- 
nesses respectively. 

Dated  at  New  York  this  eleventh  day  of  May,  i  Wl. 

John  Smith,  Coroner. 

V.  INQUISITION.2 

Form  No.  6383. 
(Cook's  N.  Y.  Code  Crim.  Proc.  (1891),  p.  483,  No.  278.) 

State  of  New  York,  \ 

City  and  County  of  New  York,  f 
An  inquisition  taken  at  No.  213  Sixth  avenue  in  the  city  of  New 

1.  This  examination  is  to  be  annexed  2.  The  form  of  inquisition  prescribed 

to  the   inquisition  and  filed  therewith  in  many  of  the   states  is  substantially 

by  the  coroner,  or  under  his  direction,  like  that  set  forth  infra,  in  Forms  No. 

in  the  office  of  the  clerk  of  the  court  of  6383  to  6385.     For  the  various  statutes 

sessions   in    the   county,   or  of   a  city  relating  to   the  inquisition  see  as  fol- 

court  having  power  to  inquire  into  the  lows: 

offense  by  the  intervention  of  the  grand  California.  —  Pen,      Code     (1897),    § 

jury.     N.  Y.  Code  Crim.  Proc,  §778.  1514. 

516  Volume  5. 


6383. 


CORONERS  INQUESTS. 


6383. 


York.,  in  the  county  of  New  York.,  on  the  tenth  day  of  May.,  i897, 
before  me,  /okn  Smith.,  one  of  the  coroners  of  said  county  aforesaid, 
on  the  view  of  the  body  oi  John  Doe  then  and  there  lying  dead,  upon 
the  oaths  and  affirmations  of  iJHere  set  forth  the  names  of  the  jurors)., 
good  and  lawful  men  of  the  state  of  New  York.,  duly  chosen,  who 
being  then  and  there  duly  sworn  and  charged  to  inquire,  on  behalf 
of  the  people  of  said  state,  where,  when,  how  and  after  what  man- 
ner the  said  John  Doe  came  to  his  death,  do,  upon  their  oaths  and 
affirmations,  say  that  the  sdi\<l  John  Doe  {Here  state  the  findings  of  the 
fury  with  particularity^.^ 


Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§875. 

Delaware.  —  Laws(iS93),  p.  262. 
Florida.  —  Rev.  Stat.  (1892),  §  3020. 
Iowa.  — Code  (1897),  521. 
Kansas.  —  Gen.  Stat.  (1889),  §  1785. 
Maine.  —  Rev.  Stat.  (1883),  c.  139,  §  9. 
Michigan. —  How.  Anno.  Stat.  (1882), 

§9590- 

Minnesota.  —  Stat.  (1894),  §  850. 

Montana.  — Pen.  Code  (1895),  8  2794. 

Nebraska.  — Comp.  Stat.  (1897),  §  2206. 

Nevada.  — Gen.  Stat.  (1885),  §  2261. 

North  Carolina.  —  Code  (1883),  §  657. 

Oklahoma.  —  Stat.  (1893),  §  1751. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§  1664. 

Rhode  Island.  —  Gen.  Laws  (1896), 
c.  287,  §  19. 

Tennessee.  —  Code  (1896),  §  7286. 

Utah.  —  Rew.  Stat.  (1898),  §  1231. 

Virginia.  —  Code  (1887),  §  3943, 

IVest  Virginia.  —  Code  (1891),  p.  950, 

§5. 

Wisconsin. — Sanb.  &  B.  Anno.  Stat. 
(1889),  §  4874. 

Wyoming.  —  Rev.  Stat.  (1887),  §  83. 

1.  Statement  of  Finding  —  Generally.  — 
The  inquisition  must  set  forth  who  the 
person  killed  or  wounded  is,  and  when, 
where  and  by  what  means  he  came  to 
his  death  or  was  wounded,  and,  if  he 
was  killed  or  wounded  or  his  death 
occasioned  by  the  act  of  another  by 
criminal  means,  who  is  guilty  thereof 
insofar  as  by  such  inquisition  they  have 
been  able  to  ascertain.  N.  Y.  Code 
Crim.  Proc,  §  777, 

Bullet  Wound.  —  "  Came  to  his  death 
by  a  bullet  fired  by  a  certain  Richard 
Roe  on  the  tenth  day  of  May,  1897,  at 
the  corner  of  2jrd  street  and  Sixth 
avenue  in  the  city  of  Ncu  York,  and 
that  said  bullet  was  fired  under  the 
following  circumstances,  to  wit:  That 
on  the  said  tenth  day  of  May,  1897,  at 
said  corner  of  2jrd  street  and  Sixth 
avenue  in  the  city  of  New  York,  the 
said  Richard  Roe,  being  then  and  there 


a  police  oflScer  of  the  city  of  New  York, 
saw  the  sa.idfohn  Doe  running  along 
2jrd  street  in  the  city  of  New  York  with 
a  parcel  under  his  arm;  that  the  said 
Richard  Roe  called  to  the  said  fohn  Doe 
and  shouted  to  him  to  stop,  and  that  as 
the  ssiidfohn  Doe  did  not  stop  running 
and  paid  no  heed  to  the  shouts  and 
cries  of  said  officer  to  stop,  the  said 
Richard  Roe  aimed  his  revolver  and 
fired  at  the  saidy^y^w  Doe,  who  was 
then  about  thirty  feet  away  from  the 
said  Richard  Roe,  and  that  thereupon 
the  said  fohn  Doe  fell  mortally  wounded 
from  the  effect  of  the  bullet  so  fired  by 
the  said  Richard  Roe  then  and  there, 
and  that  the  said  fohn  Doe  thereafter 
languished  from  the  effect  of  the  said 
bullet  wound  so  inflicted  and  died  at 
Bellevue  Hospital  in  the  city  of  Neru 
York  after  the  expiration  oi  four  hours. 

And  the  jury  further  say  upon  their 
oaths  and  affirmations  that  the  said 
Richard  Roe  in  firing  the  said  bullet 
and  mortally  wounding  and  causing 
the  death  of  the  said  fohn  Doe  far  ex- 
ceeded his  duty  and  that  the  death  of 
the  ssdAfohn  Doe  was  and  is  murder 
by  the  said  Richard  Roe. " 

Drowning.  — "  Came  to  his  death  from 
drowning  in  the  £ast  river  in  the  state 
of  New  York,  and  that  the  body  of  the 
said  fohn  Doe  was  found  floating  in  the 
said  East  river  on  the  tenth  day  of 
May,  1897. 

And  the  jury  further  say  upon  their 
oaths  and  affirmations  that  the  sa.\dfohn 
Doe  was  a  well  known,  respectable  and 
wealthy  citizen  of  the  city  of  New 
York,  and  that  when  last  seen  on  the 
ninth  day  of  May,  1897,  the  s&\d  fohn 
Doe  had  with  him  a  large  sum  of  money, 
a  gold  watch  and  other  articles  of 
value,  and  that  when  the  body  of  the 
saXd  fohn  Doe  was  found  as  aforesaid, 
in  the  said  East  river  on  the  tenth  day 
of  May,  1897,  there  was  no  money,  or 
watch,  or  any  article  in  the  clothes  or 
upon  the  person  of  the  %s\dfohn  Doe. 


517 


Volume  5. 


6384. 


CORONERS  INQUESTS. 


6384. 


Dated  at  New  York  this  eleventh  day  of  May,  xS97. 

(^Signatures  of  all  the  jurors. ) 
John  Smith,  Coroner.^ 

Form  No.  6384. 

(Sand.  &  H.  Dig.  Ark.  (1894),  §  760.) 
State  of  Arkansas,  ) 
County  of  Clark.     \ 

An  inquisition,  taken  on  th.&  tenth  day  of  May,  iS97,  at  Arkadelphia, 


And  the  jury  further  say  upon  their 
oaths  and  affirmations  that  the  removal 
of  the  said  money,  watch  and  other 
valuables  from  the  clothes  and  person 
of  the  ^saA  John  Doe  is  an  indication 
that  the  said  John  Doe  came  to  his 
death  and  came  to  be  so  floating  in  the 
said  East  river  by  foul  play  at  the  hands 
of  some  person  or  persons  unknown." 

Justijiable  Homicide.  —  "  Came  to  his 
death  from  a  blow  on  the  head  inflicted 
by  a  certain  Richard  Roe  on  the  tertth 
day  of  May,  1897,  at  21^  Sixth  avenue 
in  the  city  of  New  York. 

And  the  jury  further  say  upon  their 
oaths  and  affirmations  that  the  said 
Richard  Roe  is  and  was  a  policeman  of 
the  said  city  of  New  York,  and  that  the 
said  Richard  Roe  having  arrested  the 
saidyo/^«  Doe  at  the  said  No.  21^  Sixth 
avenue  in  the  city  of  New  York  on  the 
tenth  day  of  May,  1897,  for  felony  com- 
mitted by  burglariously  breaking  into 
the  premises  of  a  certain  William 
Smith  at  the  said  No.  2ij  Sixth  avenue 
in  the  city  of  New  York,  the  said  John 
Doe  then  and  there  violently  broke 
away  from  the  said  Richard  Roe  and 
then  and  there  violently  attacked  the 
said  Richard  Roe  and  that  said  Richard 
Roe,  in  self-defense  and  justifiably  in 
the  execution  of  his  duty  as  a  police 
officer  of  the  city  of  New  York,  did 
then  and  there  at  No.  2ij  Sixth  avenue 
in  the  city  of  New  York  on  the  tenth  day 
of  May,  1897,  strike  such  blow  with  his 
club  on  the  head  of  the  saAd  John  Doe  and 
that  said  blow  inflicted  a  mortal  wound, 
from  which  said  John  Doe  languished 
and  died  after  the  expiration  of  two  days 
at  Bellevue  Hospital  in  the  city  of  New 
York. 

And  the  jury  further  say  upon  their 
oaths  and  affirmations  that  the  said 
Richard  Roe  was  and  is  in  no  way  to 
blame  for  said  death  and  should  be 
and  is  exonerated  from  all  guilt  in 
connection  with  such  death." 

Knife  Wound.  —  "  Came  to  his  death 
from  a  knife  wound  in  the  left  side, 
which  wound  was  inflicted  by  a  certain 
Richard  Roe  of  the  county  of  New  York 


on  the  tenth  day  of  May,  i8g/,  at  No. 
2/j  Sixth  avenue,  by  means  of  a  cer- 
tain knife  then  and  there  held  in  the 
hands  of  the  said  Richard  Roe,  and  that 
the  said  knife  wound  then  and  there 
inflicted  on  the  left  side  of  the  %^\A.John 
Doe  was  a  mortal  wound. 

And  the  jury  further  say  upon  their 
oaths  and  affirmations  that  the  said 
knife  wound  was  so  inflicted  on  the  said 
John  Doe  by  said  Richard  Roe  while  the 
said_/i?/^«  Doe  was  endeavoring  to  ap- 
prehend the  said  Richard  Roe,  who  was 
then  committing  a  burglary  on  the 
premises  of  the  S2L.\6.John  Doe  at  No.  2ij 
Sixth  avenue,  New  York  city." 

Poison.  —  "Came  to  his  death  from 
swallowing  a  certain  poison  known  as 
arsenic,  which  was  administered  and 
given  to  the  saidy(?.^«  Z)^^on  the  tenth 
day  of  Af ay,  iS<p7,  at  No.  2/j  Sixth  ave- 
nue in  the  city  of  New  York  by  a  cer- 
tain Richard  Roe,  of  the  said  city  and 
county  oi  N^ew  York. 

And  the  jury  further  say  on  their 
oaths  and  affirmations  that  the  said 
Richard  Roe  gave  the  said  arsenic  to  the 
%2J\6.John  Doe  in  a  cup  of  coffee  on  the 
said  tenth  day  of  May,  1897,  with  the 
premeditated  design  and  intention  to 
then  arid  there  cause  the  death  of  the 
said  John  Doe  by  means  of  the  said 
arsenic,  and  that  the  said  Richard  Roe 
wilfully  and  deliberately  mixed  the  said 
arsenic  in  the  said  cup  of  coffee,  well 
knowing  that  the  said  arsenic  was 
deadly  poison  and  would  cause  the 
death  of  the  saxdjohn  Doe. 

And  the  jury  further  say  upon  their 
oaths  and  affirmations  that  the  killing 
of  the  saxdijohn  Doe  by  said  Richard 
Roe  on  the  said  tenth  day  oiMay,  1897,  at 
the  said  No.  213  Sixth  avenue  by  means 
of  said  arsenic  was  wilful  murder." 

1.  Where  the  inquest  was  signed  by 
the  coroner  and  duly  certified  toby  hini 
and  the  jurors  signed  by  making  their 
marks  and  the  whole  was  certified  to  by 
the  coroner,  who  was  a  sworn  officer, 
his  certificate  of  the  signatures  of  the 
jurors  was  sufficient.  State  v.  Evans, 
27  La.  Ann.  297. 


518 


Volume  5. 


6385.  CORONERS  INQUESTS.  6386. 

in  said  county  of  Clark,  heiove  John  Smith,  coroner  of  said  county, 
upon  the  view  of  the  dead  body  of  (Jlere  insert  the  name  of  the  deceased, 
if  kn(yivn,  or,  if  unknown,  a  description  of  the  person,  by  his  apparent  age, 
size,  clothes,  etc.'),  by  the  oaths  of  (^Here  insert  the  jurors'  tiames),  good 
and  lawful  jurors  of  said  county,  who,  being  in  due  form  sworn,  say 
that  the  said  (describing  deceased  as  above)  came  to  his  death  (Here  in- 
sert the  time,  cause,  manner  and  circumstances  of  the  death  as  found). 

In  testimony  whereof,  as  well  the  said  coroner  as  the  said  jurors, 
have  hereunto  set  their  hands,  the  day  and  year  first  aforesaid. 

{Signatures  of  coroner  and  jurors.) 


State  of  Illinois,  ^^ 


Form  No.  6385. 

(Precedent  in  U.  S.  L.  Ins.  Co.  v.  Vocke,  129  111.  561.) 

A 

County  of  Cook.  \ 

An  inquisition  was  taken  for  the  People  of  the  State  of  Illinois,  at 
38  Grant  place,  in  the  city  of  Chicago,  in  said  county  of  Cook,  on  the 
18th  day  of  January,  a.  d.  i8<?5,  before  me,  Henry  L.  Hertz,  coroner 
in  and  for  said  county,  upon  view  of  the  body  of  Otto  W.  Kielgast, 
then  and  there  lying  dead,  upon  the  oaths  of  six  good  and  lawful  men 
of  the  said  county,  who,  being  duly  sworn  to  inquire,  on  the  part  of 
the  People  of  the  State  of  Illinois,  into  all  the  circumstances  attend- 
ing the  death  of  the  said  Otto  W.  Kielgast,  and  by  whom  the  same 
was  produced,  and  in  what  manner  and  when  and  where  the  said  Otto 
W.  Kielgast  came  to  his  death,  do  say,  upon  their  oaths  as  aforesaid, 
that  the  said  Otto  W.  Kielgast,  now  lying  dead  at  38  Grant  place,  in 
said  city  of  Chicago,  county  of  Cook,  State  of  Illinois,  came  to  his 
death  on  the  nth  day  oi  January,  a.  d.  i8^5;  and  we,  the  jury,  find 
that  O.  IV.  Kielgast  came  to  his  death  on  the  night  of  January  17, 
1S80,  by  a  pistol-shot  fired  by  his  own  hand,  while  laboring  under  a 
fit  of  temporary  insanity. 

In  testimony  whereof,  said  coroner  and  the  jury  of  this  inquest 
have  hereunto  set  their  hands  the  day  and  year  aforesaid. 

Douglas  Barstow,  Foreman.         Louis  Gasselin, 
O.  W.  Haynie,  H.  M.  Gillette, 

Angelo  Faiel,  M.  J.  Shute. 

Henry  L.  Hertz,  Coroner. 
P.  Knoff,  Deputy. 

VI.  WARRANT  OF  ARREST.^ 

1.  Beqaisites  of  Warrant. —  For  statutes  Delaware.  —  Laws  (1893),  p.  263. 

relating  to  the  coroner's  warrant  of  ar-  Idaho.  —  Rev.   Stat.   (1887),  §§   8384, 

rest  see  as  follows:  8385. 

Alabama.  — Qr'wti.  Code (i886),| 4809.  Iowa.  —Code (1897),  §  524. 

Arizona.  —  Pen.  Code (1887),  §§  2316,  Kansas.  —Gen.  Stat.  (1889),  §§  1787- 

2317.  1790- 

Arkansas.— ?,dSiA.  &  H.  Dig.  (1894).  Kentucky.  —  Stat.  (1894),  §  529. 

§§  764.  765.  Maine.— ^^v.  Stat. (1883),  c.  139,  §  10. 

California.  —  Pen.    Code    (1897),    §§  Michigan.  —  How.  Anno.  Stat.  (1882), 

1517.  1518.  §§9592.9595-        ,           ^.      ,„     ^    a 

Colorado.  —  Mills'  Anno.  Stat.  (1891),  Mississippi.  —  Anno.  Code   (1892),  § 

§§  877-880.  822. 

519  Volume  5. 


6386. 


CORONERS  INQUESTS. 


6386. 


Form  No.  6386. 
(Precedent  in  State  v.  Bailey,  32  Kan.  85.)' 

State  of  Kansas^  \ 
Reno  County.  \ 
The  State  of  Kansas  to  J.  M.  Hedrick,  Sheriff  of  Reno  County: 

Whereas,  on  the  21st  day  of  May,  \Z83,  notice  was  given  me,  the 
undersigned,  A.  W.  McKinney,  a  coroner  in  and  for  said  county,  that 
the  dead  body  of  a  man  had  been  found  at  the  N.  W.  l-Jf.,  sec.  P, 
town  2Ji.  S.,  range  6  west,  in  said  county,  supposed  to  have  died  by 
unlawful  means;  thereupon  I  issued  a  summons  for  six  citizens  of 
said  county,  and  directed  the  same  to  J.  M.  Hedrick,  sheriff  of  said 
county,  returnable  forthwith.     Summons  returned  at  10  o'clock. 

The  following  jurors  appeared:  A.  M.  Switzer,  J.  Q.  Robertson,  J. 
C.  Moore,  J.  Peter  Klein,  George  L.  Wainner,  Edward  Dennis,  who 
were  duly  sworn.  The  jurors  having  inspected  the  body,  heard  the 
testimony,  and  made  all  needful  inquiries,  returned  to  me  their 
inquisition  in  writing  under  their  hands,  as  follows: 

"State  oi  Kansas,  Reno  County. — An  inquisition,  holden  at  the 
residence  oi  J.  P.Bailey,  on  section  9,  town  ^4,  range  5,  in  said 
county,  on  the  21st  day  of  May,  iS83,  before  me,  A.  W.  McKinney, 
coroner  of  said  county,  on  the  body  of  y.  P.  Bailey,  there  lying  dead. 


Montana.  —  Pen.  Code  (1895),  §§  2797, 
2801. 

Nebraska.  —  Comp.  Stat.  (1897),  § 
2207. 

New  Jersey.  —  Gen.   Stat.    (1895),    p. 

899.  §  14. 

Nevada.  —  Gen.  Stat.  (1885),  §§  2263, 
2264. 

North  Dakota.  —  Rev.  Codes  (1895), 
§§  2016,  2018. 

South  Carolina.  —  Crim.  Stat.  (1893),  § 

598- 

Tennessee.  —  Code    (1896),    §§    7289, 

7290. 

Utak.  —  Rtw.  Stat.  (1898),  §  1234. 

Virginia.  —  Code  (1887),  §  3945. 

West  Virginia.  —  Code  (1891),  p.  950, 

§7. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  4876. 

Wyoming.  —  Rev.  Stat.  (1887),  §  1884. 

1.  It  was  held  in  this  case  that  the 
facts  are  not  set  forth  in  exhaustive 
detail  nor  as  fully  as  they  should  be, 
nor  with  perfect  accuracy,  yet  the  pro- 
ceedings thereafter  are  not  so  irregular 
for  these  reasons  as  to  be  utterly  void. 
State  V.  Bailey,  32  Kan.  83. 

In  State  v.  Tennison,  39  Kan.   726, 
the  defendant  was   arrested  upon   the 
following  warrant: 
"  State  of  Kansas,  ) 
Johnson  County.  ) 
To    the    Sheriff    of  Johnson    County, 

Kansas : 


Whereas,  a  coroner's  jury  duly  sum- 
moned and  sworn  to  determine  the 
cause  of  the  death  ofy.  D.  Tennison ^ 
held  on  June  syth,  i8<?7,  a.nA  July  nth, 
i8<5'7,  returned  a  verdict  thereon  on  July 
nth,  18^7,  that  the  said  J.  D.  Tennison 
came  to  his  death  by  means  of  poison- 
ing, being  arsenic  feloniously  adminis- 
tered, as  they  the  jurors  believe,  by  Mrs. 
J.  D.  Tennison  and  others  to  said  jurors 
unknown;  this,  therefore,  is  to  com- 
mand you  forthwith  to  arrest  said^rj. 
J.  D.  Tennison  and  take  her  to  some 
justice  of  the  peace  of  said  county  then 
and  there  to  answer  to  the  charge  of 
feloniously  administering  the  said 
poison  and  causing  the  death  of  the 
said  J.  D.  Tennison.  In  witness 
whereof,  I  have  hereunto  set  my  hand 
this  July  I J  th,  i?,87. 

Dr.  Thomas  Hamill,  Coroner." 

The  defendant  submitted  to  a  prelimi- 
nary examination  on  this  warrant  and 
did  not  question  the  sufficiency  of  the 
charge  therein  contained,  but  after  the 
information  was  filed  sought  to  have 
the  prosecution  abated  because  the 
warrant  was  void.  The  court  ruled  that 
although  the  charge  as  stated  in  the 
warrant  is  not  as  full  and  precise  as  it 
should  have  been,  it  was  too  late  to 
challenge  its  sufficiency  after  the  pre- 
liminary examination  was  concluded 
and  the  defendant  bound  over  for  trial. 


620 


Volume  5. 


6387.  CORONERS  INQUESTS.  6388. 

by  the  jurors  whose  names  are  hereunto  subscribed.  The  said 
jurors,  upon  their  oaths,  do  say  he  came  to  his  death  by  being  hit 
upon  the  head  with  a  piece  of  iron  water-pipe  in  the  hands  of  J.  I. 
Bailey. 

Given  under  our  hands,  this  day  of  inquisition. 

A.  M.  Switzer.  J.  C.  Moore. 

J.  Q.  Robertson.  Geo.  I.  Wainner. 

J.  Peter  Klein.  Edward  Dennis." 

You  are  therefore  required  to  arrest  the  said  J.  I.  Bailey,  and  bring 
him  forthwith  before  George  D.  Barclay,  at  his  office  in  Hutchinson, 
in  said  county,  to  answer  said  charge,  and  then  and  there  return  this 
writ. 

Witness  my  hand,  in  Reno  county,  this  21st  day  of  May,  iS83. 

A.  W.  Mc Kinney. 
Coroner  of  Reno  County. 

Form  No.  6387. 

(Cook's  N.  Y.  Code  Crim.  Proc.  (1891),  p.  484,  No.  280.)* 

State  of  New  York,      ) 
County  of  New  York.  )      ' 

In  the  name  of  the  People  of  the  State  of  New  York: 
To  any  sheriff,  constable,  marshal  or  policeman  in  this  county: 

An  inquisition  having  been  this  day  found  by  a  coroner's  jury  be- 
fore me,  stating  that  John  Doe  has  come  to  his  death  by  the  act  of 
Charles  Davis,  by  criminal  means  as  found  by  the  inquisition. 

You  are  therefore  commanded  forthwith  to  arrest  the  above  named 
Charles  Davis  and  bring  him  before  me,  or  in  the  case  of  my  absence 
or  inability  to  act,  before  the  nearest  or  most  accessible  coroner  in 
this  county. 

Dated  at  the  City  oi  New  York  this  eleventh  day  oi  May,  iS97. 

John  Smith, 
Coroner  of  the  County  of  New  York. 

VII.  WARRANT  OF  COMMITMENT.^ 

Form  No.  6388. 

(Del.  Laws  (1893),  p.  263.)' 

Kent  County,  ss. 

The  state  of  Delaware  to  the  sheriff  of  said  county: 

It  having  been  found  by  an  inquisition  taken  the  eleventh  day  of 

May,  A.  D.  i2>97,  helort  John  Smith,  coroner  of  the  county  aforesaid, 

\.  New  York.— Code  Crim.'PTOC.,%%        Illinois. —SiatT    &    C.    Anno.    Stat. 

780,  781.  (1896),  p.  984,  par.  26. 

2.  For  fomifl  of  commitment,  generally,         South  Carolina,  —  Crim.  Stat.  (1893), 

consult  the  title  Commitment  and  Dis-  §  599. 

CHARGE,  vol.  4,  p.  926.  See  also  the  3.  See  also  a  form  in  Matter  of  Col- 
following  statutes:  lins,  11  Abb.  Pr.  (N.  Y.  Oyer  &  T.  Ct.) 

Arkansas.  — Sand.  &  H.  Dig.  (1894),  408. 
§768. 

6S1  Volume  5. 


6388.  CORONERS  INQUESTS.  6388. 

upon  view  of  the  dead  body  of  John  Doe,  that  the  said  John  Doe  came 
to  his  At2X!a  (set  forth  as  found  by  the  inquisition)-.  We  do  therefore, 
herewith,  send  to  you  the  said  Charles  Jones  3in<l  command  you  to 
receive  and  safely  keep  him  for  trial,  or  until  he  shall  be  lawfully 
discharged. 

Witness  the  hand  and  seal  of  the  said  coroner,  the  11th  day  of 
May,  1 897. 

(sEAi)  John  Smith,  Coroner. 

533  Volume  5. 


CORPORATIONS. 

By  C.  a,  Molloy. 

I.  IN  General,  527.  ^ 

1.  Incorporation,  528. 

a.  Application,  528. 

b.  Granting  Application,  531. 

».  Amending  Certificate  0/  Incorporation,  533. 

a.  notice  to  Attorney-General,  534. 

b.  Petition,  535. 

c.  Decree,  536. 

(i)  Interlocutory,  536. 
(2)  Final,  537. 

II.  CONSOLIDATED  CORPORATIONS,  538. 

1.   Proceedings  by  or  on  Behalf  of,  538. 

a.  To  Enforce  Consolidation  Agreement,  539. 

(i)  Bill  in  Equity,  539. 
(2)  Answer,  543. 

b.  To  Foreclose  Mortgage,  549. 

c.  To  Recover  Subscription  to  Constituent  Corporation,  563, 
a.  Proceedings  against,  566. 

a.  For  Injunction,  567. 

(i)   To  Enjoin  Operation  of  Proposed  Lease,  567, 

(2)  To    Restrain    Operation    of    Agreement    Creating 

Monopoly,  568. 

{a)  Attorney  -  General  s  Information,    568. 

(^)  Order  to  Show  Cause  why  Injunction  should 

not  Issue,  604. 
(^)  Order  for  Injunction,  606. 
yd')  Injunction,  607. 

(3)  To  Restrain  Operation  of  Consolidated  Competing 

Railroad,  609. 

b.  For  Mandamus,  615. 

(i)   To  Compel  Reconstruction  of  Highway,  615. 
(2)   To  Compel  Running  of  Passenger  Trains,  616. 

c.  For  Mandatory  Injunction  to  Enforce  Decree,  619. 

d.  By  Judgment  Creditor  of  Constituent  Corporation,  620. 

(i)   To  Set  Aside  Transfer  of  Property,  620. 
(2)   To  Subject  Property  to  Lien  and  Judgment  against 
Constituent  Corporation,  625. 

e.  By  Trustee  of  Stock  Asking  Instructions,  626. 

/.   Upon  Causes  of  Action  Existing  against  Constituent  Cor- 
poration, 628. 

(1)  On  Bonds,  628. 

(2)  On  Judgment,  633. 

(3)  On  Mortgage,  634. 

523  Volume  5. 


CORPORATIONS. 

III.  REORGANIZED  CORPORATIONS,  637. 

1.  Proceedings  by  or  on  Behalf  of  ^  637. 

a.  For  Mandamus^  637. 

b.  Answer  of  Secretary  of  State  to  Order  to  Show  Cause^  641. 

2.  Proceedings  against^  644. 

a.  To  Recover  Bonds  and  Prevent  Issue  of  Other  Bonds,  644. 

b.  Answer  Alleging  Nonliability,  648. 

c.  Answer  of  Reorganization  Committee  to  an  Attack  upon 

their  Powers.,  650. 

IV.  DISSOLUTION  — WINDING  UP,  658. 

1.  Proceedings  to  Dissolve,  Generally,  658. 

a.  Before  Attorney-General,  659, 

(i)  Notice  of  Motion,  659. 

(2)  Submission  of  Statement  of  Facts,  659. 

(a)  By  Written  Request,  659. 

(J))  By  Petition,  660, 

b.  Obtaining  Leave  to  Sue,  662. 

(i)  Petition,  662. 

(a)  By  Attorney-General,  662. 

(^)  By  Stockholder,  662. 
(2)  Order  Granting  Leave,  663. 

{a)   To  Attorney- General,  663. 

(J))   To  Stockholder,  664. 

c.  Bill  for  Dissolution,  665. 

d.  Complaint,  Petition,  Suggestioti  or  Information,  66 j. 

(i)  For  Abuse,  Misuse  or  Nonuse  of  Franchise,  66^. 
(^)  In  General,  667. 
(J))  Illegal  Business  —  Lottery,  669. 
{/)  Illegal  Combination  —  Monopoly,  673, 

aa.   Gas  Trust,  673. 

bb.   Oil  Trust,  676. 

cc.   Sugar  Trust,  683. 
(aT)  Improper  Consolidation,  Unlawful  Lease  and 

Nonuser,  684. 
{e)  Improper  Use  of  Funds  by  Building  and  Loan 

Association,  688. 
(/")  Insolvency,  689. 

aa.  At  Instattce  of  Attorney-General,  689. 

bb.   At  Instance  of  Stockholder,  691. 
(^)  Neglect  and  Mismanagement,  694. 
(Ji)  Nonpayment  of  Stock,  697. 
(/)  Other  Violations  of  Law,  698, 

aa.  Relating  to  Banks,  698. 

bb.  Relating  to  InsurOi^ce  Companies, 'joo. 

cc.   Relating  to  Railroads,  701. 

(2)  For  Usurpation  of  Franchises,  703. 

(3)  Cross-petition    of  Creditor  of   Insolvent   Corpora' 

tion,  711. 

e.  Answer  or  Plea,  717. 

(i)  Denying  Abuse  or  Misuse  of  Franchise,  717. 
(2)  Denying  Usurpation  of  Franchise,  719. 

524  Volume  5. 


CORPORA  TIONS. 

(3)  Setting  Up  Valid  Consolidation  Agreement,  723. 
y.  Demurrer,  725. 

(i)   To  Bill  in  Equity,  725. 

(a)  Charging  IJnlawful  Preferences,  725. 
(^)  Seeking  to  Forfeit  Franchise  of  Plank  Road 
Company,  726. 

(2)  To  Petition,  727. 

(3)  To  Plea,  728. 
g.  Replication,  728. 

h.   Judgment  or  Decree,  730. 
».  Proceedings  for  Voluntary  Dissolution,  735. 
a.  Petition,  736. 
^.    Order  to  Sho7v  Cause,  739. 
r.   Order  Fixing  Time  and  Place  of  Hearing  Petition,  740. 

d.  Clerk's  Notice  of  Time  and  Place  of  Hearing  Petition,  741. 

e.  Objections  by  Creditor,  741. 

f.  Petition  of  Minority  Stockholders  and  Creditors  to  Dismiss 

Application,  742. 

g.  Decree,  744. 

8.  Proceedings  After  Dissolution,  745, 

a.  By  or  on  Behalf  of  Corporation,  745. 

(i)  By  Receiver,  745. 

(2)  For  Mandamus,  748. 

(3)  To  Revive  Suit  against  Debtor,  748. 

(4)  For  Writ  of  Prohibition,  749, 

(5)  Answer  Alleging  Dissolution,  752. 

b.  Against  Corporation,  753. 

(i)  Complaint,  753. 

(2)  Petition  of  Creditors,  754. 

{a)   To  Declare  Trust  on  Corporate  Property,  754. 

(J>)   To  have  Sole  Remaining  Officer  Act  as  Trustee 
for  Creditors,  756. 

CROSS-REFERENCES. 

For  Form  of  Plea  in  Abatement  in  Actions  by  or  against  Corporations,  see 
the  title  ABATEMENT,  PLEAS  IN,  vol.  i,  Forms  Nos.  60, 

61.  76,  77,  7S,  9^- 

For  Form  of  Bill  in  Equity  against  Promoters,  see  the  title  A  CCO  UNTS 
AND  ACCOUNTING,  vol.  i,  Form  No.  491. 

For  Form  of  Bill  in  Equity  against  Organizers  of  a  Corporation  and 
Vendors  of  Property  thereto,  see  the  title  ACCOUNTS  AND 
ACCOUNTING,  vol.  i,  Form  No.  489. 

For  Form  of  Affidavit  by  Officer  of  Corporation,  see  the  title  AFFI- 
DAVITS, vol.  I,  Form  No.  958  et  seq. 

For  Form  of  Answer  Denying  Corporate  Existence,  see  the  title 
ANSWERS  IN  CODE  PLEADING,  vol.  i,  Form  No.  1495. 

For  Forfn  of  Answer  Setting  Up  Failure  to  Comply  with  Statutory  Regu- 
lations, see  the  title  ANSWERS  IN  CODE  PLEADING, 
vol.  I,  Form  No.  1396. 

For  Form  of  Verification  by  Officer  of  Corporation,  see  the  title 
ANSWERS  IN  CODE  PLEADING,  vol.  i,  Form  No.  I4jg. 

525  Volume  5. 


CORPORA  TIONS. 

For  Form  of  Petition  by  or  against  Corporation  upon  a  Promissory  Note^ 
see  the  title  BILLS  AND  NOTES,  vol.  3,  Forms  Nos.  4140, 
4149. 

For  Form  of  Plea  that  Defendant  Signed  Draft  as  Officer  of  Corpora- 
tion, see  the  title  BILLS  AND  NOTES,  vol.  3,  Form  No.  4252. 

For  Formal  Parts  of  Pleadings  in  Actions  by  and  against  Corporations, 
see  the  titles  ANSWERS  IN  CODE  PLEADING ;  AN- 
SWERS IN  EQUITY;  BILLS  IN  EQUITY;  COM- 
PLAINTS;  DECLARATIONS;  PLEAS;  etc.,  and  the 
GENERAL  INDEX  to  this  work. 

For  Forms  in  Actions  upon  Bonds  and  Undertakings  of  Corporations  or 
Affecting  the  Rights  of  Corporations,  see  the  title  BONDS  AND 
UNDERTAKINGS  {ACTIONS  ON),  vol.  3,  Forms  Nos. 

4395.  4453  ^t  ^^q- 

For  Forms  in  Actions  by  and  against  or  relating  to  a  Particular  Kind  of 
Corporations,  see  the  titles  CARRIERS,  vol,  4,  p.  192;  ELE- 
VATED RAILROADS;  NATIONAL  BANKS;  RE- 
LIGIOUS SOCIETIES;  etc.,  and  the  GENERAL  INDEX 
to  this  work. 

For  Forms  in  Actions  by  and  against  Officers  of  Corporations,  see  the 
title  DIRECTORS,  ETC. 

For  Forms  of  Indictments  for  Conspiring  to  Hinder  Business  of  a  Cor- 
poration, see  the  title  CONSPIRACY,  Forms  Nos.  61^4,  61^3. 

For  Forms  in  Actions  against  Corporations  for  False  Imprisonment,  see 
the  title  FALSE  IMPRISONMENT. 

For  Forms  in  Proceedings  to  Foreclose  Mortgages,  see  the  title  FORE- 
CLOSURE, ETC. 

For  Forms  in  Actions  by  or  against  or  relating  to  Foreign  Corporations, 
see  the  title  FOREIGN  CORPORA  TIONS. 

For  Forms  in  Actions  against  Corporations  for  Libel,  see  the  title 
LIBEL. 

For  Forms  relating  to  Public  Corporations,  generally,  see  the  title 
MUNICIPAL  CORPORA  TIONS. 

For  Forms  in  Proceedings  for  Change  of  Name  of  Corporations,  see  the 
title  NAMES. 

For  Forms  of  Service  of  Process  on  Corporations,  see  the  title  SER- 
VICE OF  WRITS  AND  PAPERS. 

For  Forms  in  Proceedings  to  Sequester  Corporate  Property,  see  the  title 
SEQ  UES  TRA  TION. 

For  Forms  in  Actions  by  and  against  Shareholders  and  Stockholders  or 
concerning  Shares  of  Stock,  see  the  title  STOCK  AND  STOCK- 
HOLDERS. 

For  other  Forms  in  Actions  and  Proceedings  affecting  Corporations  or 
the  Property  of  Corporations,  see  the  titles  CERTIFIED 
CASES;  CERTIORARI;  COMMERCIAL  AGENCIES; 
CREDITORS'  SUITS;  DEATH  BY  WRONGFUL 
ACT;  DEPOSITS;  DIVIDENDS;  EMINENT  DO- 
MAIN; INfUNCTIONS;  INSOLVENCY;  INSUR- 
ANCE; MANDAMUS;  NUISANCES;  PERSONAL 
INfURIES;  QUO  WARRANTO;  RAILROADS;  RE- 
CEIVERS; and  the  GENERAL  INDEX  to  this  work. 

526  Volume  5, 


6389. 


CORPORATIONS. 


6389. 


For  matters  of  Procedure^  see  Encyclopedia  of  Pleading  and 
Practice,  titles  CORPORATIONS;   WINDING  UP. 

For  matters  of  Substantive  Law,  j-<?^  American  and  English  Encyclo- 
pedia OF  Law,  titles  -CONSOLIDA  TION  OF  CORPORA- 
TIONS; CORPORATIONS  {PRIVATES;  DISSOLU- 
TION OF  CORPORATIONS;  REORGANIZATION  OF 
CORPORATIONS. 


I.  IN  GENERAL.1 


1.  Actions  by  and  against  Corporations. 

—  Every  corporation,  both  foreign  and 
domestic,  may  sue  and  be  sued,  both  at 
law  and  in  equity,  whenever  the  cor- 
porate property  or  rights  are  involved, 
exactly  as  an  individual  might  under 
similar  circumstances.  5  Encycl.  of 
PI.  and  Pr.  54.  Hence  the  forms  in 
actions  by  and  against  corporations  gen- 
erally will  be  found  under  their  proper 
tiltes  in  this  work.  There  are  certain 
actions,  however,  affecting  peculiarly 
corporations  and  corporate  interests. 
These  latter  only  are  treated  in  this  title. 

Statutes  exist  in  every  state  providing 
for  the  formation,  control  and  existence 
of  corporations,  defining  their  powers 
and  prescribing  their  restrictions.  The 
following  is  a  list  of  the  statutory 
provisions  relating  to  corporations 
generally: 

Alabama. — Civ.  Code  (1886),  §  1521 
et  seq.;  Acts  (1890-1891),  Nos.  325,  403, 
430. 

Arizona.  —  Rev.  Stat.  (1887),  §  329 
et  seq. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
c.  47. 

California.  —  Civ.  Code  (1897),  §  283 
et  seq. 

Colorado.  —  Mills' Anno.  Stat.  (1891), 
c.  30;  Laws  (1891),  p.  95. 

Connecticut.  — Gen.  Stat.  (1888),  §  1905 
et  seq.;  Laws  (1889),  p.  138;  Laws  (1893), 
pp.  224,  263;   Laws  (1895),  pp.  467,  571. 

Delaware. —  Rev.  Stat.  (1893),  c.  70; 
17  Laws,  c.  147. 

District  of  Columbia. — Comp.  Stat. 
(1894);  c.  15. 

Florida.  —  Rev.  Stat.  (1892),  §  2119 
et  seq. 

Georgia. —  2  Code (1896),  gi^  i%2)^etseq., 
1879  et  seq.,  1903,  1986,  2000,  2008, 2147, 
2159,  2167,  2180,  2339,  2349  et  seq. 

Idaho.  — R^v.  Stat.  (1887),  §  2575 
et  seq. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  985  et  seq.,  p.  loil,  par.  25, 
p.  1028,  par.  50  et  seq.,  p.  1036,  par.  80 
et  seq. ;  Laws  (1897),  p.  281. 


^Indiana.  —  Horner's  Stat.  (1896),  §§ 
3001  etseq.,  1141,  5556,  3951,  3965  ^^J^^. 

Iowa.  — Code  (1897),  §  1607  et  seq. 

Kansas.  —  Gen.  Stat.  (1S97),  c.  66. 

Kentucky.  —  Stat.  (1894),  c.  32;  Acts 
(1896),  c.  31;  Acts  (1897),  c.  14. 

Louisiana.  —  Rev.  Laws  (1897),  p.  134 
et  seq. 

Maine.  —  Rev.  Stat.  (1883),  c.  46; 
Laws  (1891),  c.  99,  140;  Laws  (1893),  c. 
212;  Laws  (1897)  c.  192,  225. 

Maryland.  — 'Pub.  Gen.  Laws  (1888), 
p.  280  et  seq. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
105,  106. 

Michigan.  — How.  Anno.  Stat.  (1882), 
§§  3343  el  ^eq.,  4247  et  seq.,  4860  et  seq. ; 
Pub.  Acts  (1891),  pp.  16,  143,  277;  Pub. 
Acts  (1895),  p.  326. 

Minnesota.  — Stat.  (1894),  c.  34,  §  2714 
et  seq. 

Mississippi. —  Anno.    Code   (1892),    c. 

25. 

Missouri.  —  Rev.  Stat.  (1889),  c.  42. 

Montana. — Civ.  Code,  §  390  et  seq.. 
Code  Civ.   Proc,  §  2190^^  j^^. 

Nebraska.  —  Comp.  Stat.  (1897),  c.  16. 

Nevada.  — Gen.  Stat.  (1885),  c.  8. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
C.  147  et  seq. 

Newfersey.  — Gen.  Stat.  (1896),  p.  904 
et  seq. 

New  Mexico.  —  Comp.  Laws  (1884),  § 
192  et  seq.;  Laws  (1897),  c.  i,  19,  29. 

New  York.  —  Birds.  Rev.  Stat.  (1896), 
p.  647  etseq. 

North  Carolina.  —  Code  (1883),  c.  16; 
Laws  (1885),  c.  19,  190;  Laws  (1889),  c. 
170;  Laws  (1891),  c.  257;  Laws  (1893), 
c.  244. 

North  Dakota.  —  Rev.  Codes  (1895),  §§ 
2850,  3265,  5775  et  seq.;  Laws  (1897), 
p.  63. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
3232  etseq. 

Oklahoma. — Stat.  (1893),  c.  17. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§§  354  ^/j^^r.,  3217,  3271. 

Pennsylvania.  —  Bright.  Pur.  Dig» 
(1894),  p.  403  et  seq. 


527 


Volume  5. 


6389. 


CORPORA  TIONS. 


6389. 


1.  Incorporation.! 
a.  Application. 
Form  No.  6389. 

To  the  Honorable  John  Marshal,   Associate  Judge  of  the   Superior 
(or  Circuif)  Court  of  the  County  of  Kent  (or  Albemarle),  State  of 
Delaware  (or  Virginia):  ^ 
Under  and  pursuant  to  the  requirements  of  {Here  properly  indicate 
and  refer  to  the  laws  under  which  it  is  sought  to  incorporate),  we,  the 
undersigned  {names  of  the  proposed  incorporators),^  desiring  for  our- 
selves, our  associates  and  successors,  to  form  and  be  incorporated 
as  a  corporation  (or  joint  stock  company),  do  hereby  make,  sign  and 
acknowledge  this  certificate  in  writing,  certifying  as  follows: 


Rhode  Island. — Gen.  Laws  (1896),  c. 
176  et  seq. 

South  Carolina. —Rgv.  Stat.  (1S93),  § 
1499  et  seq. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §  2889  et'seq. 

Tennessee.  —  Code  (1896),  3  2024  et  seq. 

Texas.  —  Rev.  Stat.  (1895),  art.  638  et 
seq. 

Utah.  —  Rev.  Stat.  (1898),  §§  314  et 
seq.,  3623,  3661  et  seq. 

Vermont.  —Stat.  (1894),  c.  164  et  seq. 

Virginia. — Code  (1887),  c.  46,  47. 

Washington.  —  Ballinger's  Codes  & 
Stat.  (1897),  §  4250  et  seq. 

IVest  Virginia.  — Code  (1891),  c.  52  et 


seq. 


Stat. 


Wisconsin.  —  Sanb.  &  B.  Anno. 
(1889),  §§  1764,  1777-  1788,  1833. 

Wyoming.  —  Rev.  Stat.  (1887),  §§  501 
et  seq.,  3093  et  seq. ;  Const.  (1890),  art.  10; 
Laws  (1890),  p.  21  et  seq.;  Laws  (1895), 
p.  223. 

See  also  lists  of  statutes  cited  infra, 
note  I,    p.   538,  note  2,   p  658,  note   i, 

P-  735. 

1.  The  instrament  by  which  a  private 
corporation  is  formed  is  variously  desig- 
nated. It  is  called  "agreement"  in 
Utah  and  West  Virginia;  "articles  of 
incorporation"  in  Arizona,  Arkansas, 
California,  Connecticut,  Dakota,  Florida, 
Idaho,  Iowa,  Kentucky,  Michigan,  Min- 
nesota, Missouri,  Nebraska,  North  Caro- 
lina, Ohio,  Oklahoma,  Oregon,  Vermont, 
Washington,  Wisconsin;  "articles  of 
association  "  in  Indiana  and  New  Hamp- 
shire; "  certificate  of  incorporation"  in 
Colorado,  Delaware,  District  of  Columbia, 
Maine,  Maryland,  Montana,  Nevada, 
New  fersey.  New  York,  Virginia,  Wy- 
oming; "charter"  in  Louisiana,  Massa- 
chusetts, Mississippi,  Pennsylvania,  Ten- 
nessee, Texas;  "declaration"  m  Alabama. 
Georgia,  South  Carolina,  and  "  license" 


in  Illinois.  See  list  of  statutes  cited 
supra,  note  i,  p.  527. 

Application  to  courts  is  the  proper 
method  of  incorporation  in  only  a  few 
of  the  states. 

Alabama.  —  Civ.  Code  (1886),  §  1660. 

Delaware.  —  17  Laws,  c.  147  (Rev. 
Stat.  (1893),  p.  574  etseq.). 

Georgia. —  2  Code  (1895),  §§  2349,  2350. 

North  Carolina.  —  Code  (1883),  § 
677. 

Virginia.  —  Code  (1887),  §  1145. 

And  even  in  these  states  the  proceed- 
ing is  only  quasi  judicial  in  its  nature, 
the  court  acting  in  a  legislative  rather 
than  in  a  judicial  capacity.  Gas-Light 
Co.  V.  West,  78  Ga.  318.  The  forms  of 
this  method  of  incorporation  are  given 
in  this  article. 

In  the  other  states,  however,  the 
forms  of  incorporation  are  in  no  way 
connected  with  court  proceedings,  and 
are  omitted  as  not  properly  being  plead- 
ing or  practice  forms. 

2.  Most  be  presented,  in  Alabama,  to 
the  judge  of  probate.  Ala.  Civ.  Code 
(1886),  §  1660.  In  Delaware,  to  the  as- 
sociate judge  of  the  county.  17  Del. 
Laws,  c.  147  (Rev.  Stat.  (1893),  p.  574). 
In  Georgia,  to  the  superior  court.  2 
Code  (1895),  §  2350.  In  North  Carolina, 
to  the  clerk  of  the  superior  court.  N. 
Car.  Code  (1883),  §  677.  In  Virginia, 
to  the  circuit  or  corporation  court.  Va. 
Code  (1887),  §  1145. 

3.  Must  be  presented  by  not  less  than 
three  persons  in  Alabama,  Delaware  and 
North  Carolina.  Ala.  Laws  (1887),  p. 
103;  17  Del.  Laws,  c.  147  (Rev.  Stat. 
(1893),  p.  574);  N.  Car.  Code  (1883), 
§  677.  In  Georgia  the  petition  may  be 
made  by  any  number  of  persons.  2 
Code  (1895),  §  2350.  In  Virginia  the 
petition  may  be  made  by  not  less  tha-n 
five  persons.      Va.  Code  (1887),  §  Ii45- 


528 


Volume  5. 


6389. 


CORPORA  TIONS. 


6389. 


I.  The  corporate  name  of  said  corporation  (or  company)  shall  be 
■  The  Dover  Brick  Compatiy^ 

II.  The  purposes  and  object  for  which  this  corporation  (or  company) 
is  organized  are  {Here  set  out.  the  object  and  purposes  of  the  corporation), 
and  generally  to  do  all  things  necessary  or  proper  for  carrying  on 
said  business,  and  for  those  purposes  to  have,  possess  and  enjoy  all 
the  rights,  benefits,  privileges  and  immunities  incident  to,  and  given 
under  the  laws  of  this  state  to,  a  corporation  (or  company)  of  such 
character.2 

III.  The  amount  of  the  capital  stock  shall  be  (or  shall  not  be  less 
than)  one  hundred  thousand  dollars,  to  be  divided  into  shares  of  the 
par  value  of  one  thousand  dollars  each,  and  the  amount  to  be  paid  in 
to  commence  business  shall  be  twelve  thousand  dollars,  being  more 
than  ten  per  centum  of  the  said  capital  stock. ^ 

[IV.  The  period  at  which  said  corporation  shall  commence  and 
terminate  shall  be  as  follows:  It  shall  commence  on  tht  first  day  of 
March,  eighteen  hundred  a?id  ninety-eight,  and  shall  terminate  on  the 
first  day  of  March,  nineteen  hundred  and  eighteen.^^ 

V.  The  value  or  amount  of  real  estate  of  which  said  corporation 
may  become  seised  and  possessed  shall  not  exceed  in  value  (or  in 
amount)  the  sum  of  two  hundred  and  fifty  thousand  dollars  (or  fifty  acres 
of  land),  [and  the  value  of  the  personal  estate  of  which  said  corpo- 
ration may  become  seised  and  possessed  may  be  the  sum  of  one  hun- 
dred thousand  dollars.  ]* 


1.  Coiporate  name  must  be  stated. 
Alabama.— Civ.   Code  (i886),  §  l66o. 
Delaware.  —  17    Laws,    c.    147   (Rev. 

Stat.  (1893),  p.574)- 

Georgia.  —  2  Code  (1S95),  §  2350. 
North      Carolina.  —  Code     (1883),     § 

677. 

Virginia.  —  Code  (1887),  ^  1145. 

2.  Object  of  incorporation  must  be 
stated. 

Alabama.— Civ.  Code  (18S6),  §  1660. 

Delaware. — 17  Laws,  c.  147  (Rev. 
Stat,  (1893),  p.  574). 

Georgia. —  2  Code  (1895),  §  2350;  In 
re  Deveaux,  54  Ga.  673. 

North  Carolina. —  Code  (1883),  §  677. 

Viroinia. —  Code  (18S7),  ^  1145. 

Where  petition  does  not  designate  the 
ptirposes  of  the  corporation,  but  the 
name  of  the  same  indicates  its  business 
and  the  object  thereof  appears,  the  char- 
ter is  not  invalid.  Van  Pelt  v.  Home 
Bldg.,  etc.,  Assoc,  79  Ga.  439.  Also, 
a  statement  of  the  objects  of  the  corpo- 
ration in  the  judge's  order  cures  the 
defect  of  failing  to  state  them  in  the 
petition.  Redwine  v.  Gate  City  Loan, 
etc.,  Assoc,  54  Ga.  474. 

3.  Amotmt  of  capital  stock,  number 
and  par  value  of  shares,  and  the 
amount  to  be  paid  before  commencing 
business,  which  shall  not  be  less  than 


a  certain  per  centum  of  the  whole  capi- 
tal stock,  must  be  stated. 

Delaware. — 17  Laws,  c  147  (Rev.  Stat. 
(1893),  p.  574).  Similar  statutes  exist 
in: 

Alabama.— Civ.  Code  (1886),  §  1660, 

Georgia. —  2  Code  (1895),  g  2350. 

North  Carolina.—  Code  (1883),  §  677. 

Virginia. —  Code  (1887),  §  1145. 

Amount  with  which  to  commence  busi- 
ness must  be  stated. 

Delaware. — 17  Laws,  c  147  (Rev. 
Stat.  (1893),  p.  574)- 

Georgia.— 2  Code  (1895),  §  2350. 

Amount  actually  paid  in  must  be 
stated. 

Georgia.— 2  Code  (1S95).  §  2350. 

4.  Time  of  commencement  and  termina- 
tion must  be  stated. 

Delaware. — 17  Laws,  c  147  (Rev.  Stat. 
(1893),  p.  574). 

Georgia. —  2  Code  (1895),  §  2350. 

North  Carolina.— CoAc{l%i-i),  §677. 

6.  Value  of  real  property  which  the 
corporation  may  own  must  be  stated. 

Delaivare.  —  17  Laws,  c.  147  (Rev. 
Stat.  (1893),  p.  574)- 

Virginia.  — CoAe:  (1887),  §  1 145. 

Value  of  personal  property  which  indi- 
viduals may  own  must  be  stated. 

Dela-ware.  — 17  Laws,  c.  147  (Rev. 
Stat.  (1893),  p.  574)- 


5  E.  of  F.  P.  —  34. 


629 


Volume  5. 


6390. 


CORPORA  TIONS. 


6390. 


VI,  The  location  of  the  principal  place  of  business  or  the  chief 
office  of  said  corporation  (or  company')  will  be  at  the  city  of  Dover  (or 
Charlottesville),  in  the  county  of  Kent  (or  Albemarle),  in  the  state  of 
Delaware  (or  Virginia).'^ 

VII.  The  names  and  residences  of  the  original  subscribers  to  the 
capital  stock  are  as  follows :  {Here  list  names  and  residences  of  sub- 
scribers, and  amou?its  subscribed  by  them  respectively.  )2 

[VIII.  The  day  on  which  the  annual  election  referred  to  in  section 
23  of  the  act  hereinbefore  mentioned  shall  be  the  first  Tuesday  in 
March  in  each  and  every  year.] 

In  witness  whereof  we,  the  undersigned,  the  original  subscribers 
to  the  capital  stock  of  the  corporation,  have  hereunto  set  our  hands 
and  seals  tMxs  first  day  of  February,  i%98. 

(^Signatures,  seals,  witnesses  and  acknowledgments,  as  in  the  case  of 
ordinary  conveyances.)"^ 

'*■  Form  No.  6390.* 


1.  Principal  place  of  business  must  be 
stated. 

Alabama.  —  Civ.  Code  (1886),  §  1660. 

Delaware.  — 17  Laws,  c.  147  (Rev. 
Stat.  (1893),  p.  574). 

Georgia.  —  2  Code  (1895),  §  2350. 

North  Carolina.  —  Code  (1883),  § 
677. 

Virginia.  —  Code  (1887),  §  1 145. 

Chief  business  to  be  transacted  must 
be  stated. 

Virginia. — Code  (1887),  §  1145. 

2.  Names  and  residences  of  original  sub- 
scribers and  original  incorporators  must 
be  stated. 

Alabama.  —  Civ.  Code  (1886),  §  1660. 

Delaivare.  — 17  Laws,  c.  147  (Rev. 
Stat.  (1893),  p.  574). 

North  Carolina.  —  Code  (1883),  g  677. 

Names  and  residences  of  officers  who  for 
the  first  year  are  to  manage  the  affairs 
of  the  company  must  be  stated., 

Virginia.  —  Code  (1887),  §  1 145. 
Hence,  instead  of  paragraph  VII  in  the 
text,  insert  the  following:  "VII.  The 
names  and  residences  of  the  officers 
who  shall  manage  the  affairs  of  the 
company  for  the  first  year  are  as  fol- 
lows:" {listing  the  names  and  residences  of 
the  president  and  secretary,  directors,  etc.) 

Other  provisions  or  articles  not  incon- 
sistent with  law  as  may  be  deemed 
proper  must  be  stated. 

Alabama.  — C'w.  Code  (1886),  §  1660. 

Delaware.  — 17  Laws.  c.  147  (Rev. 
Stat.  (1893).  p.  574  et  seq). 

3.  Provisions  for  signing,  sealing  and 
acknowledging  the  articles  or  petition 
are  set  out  in  the  statute. 

Alabama.  —  Civ.  Code  (1886),  §  1660. 


Delaware.  — 17  Laws,  c.  147  (Rev 
Stat.  (1893),  p.  574  et  seq.). 

Georgia.  —  2  Code  (1895),  §  2350. 

North  Carolina.  —  Code  (1883),  §  677. 

Virginia. — Code  (1887),  §  1145. 

Publication  of  the  petition,  articles  or 
certificate  must  be  made  in  the  manner 
provided  by  law. 

Delaware. — 17  Laws,  c.  147  (Rev. 
Stat.  (1893),  p.  574  etseq.). 

Georgia.  —  2  Code  (1895),  §  2350  et  seq. 

North  Carolina.  —  Code  (1883),  j^  679. 

4.   Georgia.  —  2  Code  (1895),  g  2350. 

Petition  for  incorporation  of  a  company 
for  the  purpose  of  keeping  a  hose  with 
which  to  extinguish  fires  is  set  out  in 
Screven  Hose  Co.  v.  Philpot,  53  Ga. 
626,  and  is  as  follows: 

"  State  of  Georgia —  Chatham  County. 
To    the   Honorable   the   Judge  of   the 

Superior  Court  of  Chatham  County: 

The  petition  of  Isaac  Russell  and  oth- 
ers respectfully  showeth  that  your 
petitioners,  in  connection  with  other 
parties,  have  entered  into  an  associa- 
tion under  the  name  of  '  The  Screven 
Hose  Company  of  Savannah,  Georgia,' 
and  that  the  object  of  their  association 
is  to  keep  on  hand  a  suitable  hose  car- 
riage and  hose  in  the  city  of  Savannah, 
county  of  Chatham,  and  state  of  Geor- 
gia, and  with  said  hose  carriage  and 
hose,  and  their  personal  exertions,  to 
assist  in  the  extinguishment  of  fires  in 
said  city  of  Savannah,  and  in  the  pro- 
tection of  the  property  of  their  fellow- 
citizens;  and  that  under  the  provisions 
of  the  charter  applied  for  in  this  peti- 
tion no  capital  stock  is  required  to  be 
paid   in,   the   incorporation    proposing 


530 


Volume  5. 


639 1 .  CORPORA  TIONS.  639 1 . 

To  the  Honorable  Superior  Court  of  the  County  of  Pulaski^  in  the 
State  of  Georgia}- 
The  petition  of  {names  of  incorporators)  respectfully  shows  the  fol- 
lowing facts: 

I.  Petitioners,  under  and  pursuant  to  the  requirements  of  the  Civil 
Code  of  Georgia,  chapter  2,  article  8,  section  i,  desire  for  themselves, 
their  associates  and  successors  to  be  constituted  a  body  corporate. 

II.  (^Like  paragraph  I  in  Form  No.  6889:) 

III.  {Like paragraph  II  in  Form  No.  6389.) 

IV.  The  capital  stock  of  said  corporation  shall  be  one  hundred 
thousand  dollars,  to  be  divided  into  one  hundred  shares  of  one  thousand 
dollars  each,  all  of  which  is  to  be  paid  in  before  commencing  busi- 
ness, and  petitioners  desire  the  right  to  increase  said  capital  stock  to 
any  amount  not  exceeding  two  hundred  thousand  dollars,  by  a  direct 
vote  of  three-fourths  of  the  stock,  at  a  special  meeting  called  for 
that  purpose.2 

V.  {Like  paragraph  IV  in  Form  No.  6389.) 

VI.  {Like  paragraph  VI  in  Form  No.  6389.) 

VII.  The  business  of  said  corporation  shall  be  managed  by  a 
board  of  directors  consisting  of  five  stockholders,  who  shall  be 
elected  annually  at  the  annual  meeting  of  said  corporation,  to  be 
held  on  \\i&  first  Tuesday  in  March  of  each  and  every  year;  but  the 
first  board  of  such  directors  shall  be  elected  at  a  meeting  to  be  held 
for  the  organization  of  said  corporation  immediately  after  the  grant- 
ing of  a  charter. 

VIII.  The  said  board  of  directors  shall  elect  from  its  members  a 
president,  a  secretary  and  a  treasurer,  and  may  make  such  rules  and 
by-laws  as  may  be  proper  for  the  government  of  said  corporation 
and  not  in  conflict  with  the  laws  of  the  state. 

Wherefore,  your  said  petitioners  pray  the  court  to  grant  an  order 
declaring  this  application  granted,  and  that  they  be  incorporated  as 
the  corporation  aforesaid  for  a  term  of  twenty  years,  with  the  privi- 
lege of  renewal  according  to  law  in  such  case  made  and  provided. 
Oliver  Ellsworth,  Attorney  for  the  Petitioners. 

b.  Granting  Application. 
Form  No.  6391.* 

Georgia  —  Pulaski  County. 

In  the  matter  of  the  application  of  )  In  the  Superior  Court  of 
{names  of  incorporators)  iox  2iZ\idLX\.tx\  Pulaski  County,  Special 
ior  Iht  {name  of  corporation).  )      March  term,  iS98. 

not  to  act  upon  capital  stock,  but  only  1.  Must  be  presented  to  the  superior 
for  the  purposes  first  aforesaid.  And  court.  2  Ga.  Code  (1895),  §  2350. 
your  petitioners  pray  that  they,  with  2.  Amotint  of  capital  to  be  employed 
the  other  members  of  their  association,  and  paid  in  must  be  specified,  /n  re 
may,  for  the  purpose  aforesaid,  be  in-  Deveaux,  54  Ga.  673.  The  amount  of 
corporated  by  the  name  and  style  of  capital  actually  paid  in  must  be  stated 
'TAf  Screven  Hose  Company  of  Savan-  as  a  condition  precedent  to  the  grant- 
nah,  Georgia:  for  the  space  of  twenty  ing  of  the  charter.  Hendrix  v.  Acad- 
years,  with  the  privileges  incident  to  emy  of  Music,  73  Ga.  440. 
corporations  created  by  courts,  as  pro-  3.  Geon^ia. —  2  Code  (1895),  S  2350.  pro- 
vided by  the  statutes  of  the  state,  and  vidingforthe  judge's  order  to  be  passed 
your  petitioners  will  ever  pray,"  etc.  declaring  the  application  granted. 

631  Volume  5. 


6391. 


CORPORA  TIONS. 


6391. 


Upon  the  hearing  of  the  application  of  {ttames  of  the  incorporators), 
all  of  the  county  of  Pulaski,  state  of  Georgia,  heretofore  on  \)s\&  first 
day  of  February,  iS98,  filed  in  the  office  of  the  clerk  of  the  Superior 
Court  of  said  county,  asking  for  a  charter  for  the  organization  and 
incorporation  of  a  certain  corporation  to  be  known  as  T/ie  Haivkins- 
ville  Poultry  Association,  for  the  purpose  of  {Here  set  out  the  purpose  of 
the  corporation  as  stated  in  the petitioti);  and  the  said  {names  of  incotpo- 
rators)  having  complied  with  all  the  requirements  of  the  law  relating 
to  the  incorporation  of  such  a  corporation,  the  court  is  satisfied  that 
said  application  is  legitimately  within  the  purview  and   intention  of 


An  order  for  incorporation  is  set  out  in 
Screven  Hose  Co.  v.  Philpot,  53  Ga. 
626,  and  is  as  follotvs: 

'' Superior  Conrt  of  Chatham  County, 
May  Term,  187^. 
State  of  Georgia —  Chatham  County: 

On  reading  the  foregoing  petition, 
the  court  being  satisfied  that  the  appli- 
cation is  legitimately  within  the  pur- 
view and  intention  of  the  statutes  of  the 
state  of  Georgia  in  that  behalf  made  and 
provided,  and  that  the  terms  of  the  law 
have  been  complied  with:  It  is  ordered 
that  the  said  application  be  granted, 
and  that  the  petitioners,  with  the  other 
members  of  the  association  and  their 
successors,  be  and  they  are  hereby  in- 
corporated and  made  a  body  corporate 
and  politic,  by  the  name  and  style  of 
'  The  Screven  Hose  Company  of  Savannah, 
Georgia,'  for  and  during  the  term  of 
twenty  years,  with  the  privilege  of  re- 
newal at  the  expiration  of  that  time, 
according  to  the  provisions  of  the  laws 
of  Georgia,  And  it  is  further  ordered 
that  the  said  corporation  shall  have 
power  to  make  and  pass  such  constitu- 
tion, by-laws,  rules  and  regulations  for 
the  management  of  the  affairs  and  busi- 
ness of  the  company,  which  may  be 
deemed  needful,  as  may  be  framed  and 
adopted  by  the  officers  and  members  of 
the  same,  not  inconsistent  with  law. 
And  further,  to  exercise  all  corporate 
powers  and  privileges  incident  to  cor- 
porations created  by  courts,  as  provided 
by  law.  And  it  is  further  ordered  that 
a  certified  copy  of  this  petition  and 
order,  under  the  seal  of  the  court,  be 
furnished  by  the  clerk  of  the  court  to 
the  petitioners. 

Savannah,  June  6th,  1&74. 

William  Schley, 

Judge  Superior  Court, 

Eastern  Circuit." 

Alabama.  —  Upon  filing  the  declara- 
tion, the  judgment  of  probate  must 
issue  to  two  or  more  subscribers  a  com- 
mission authorizing  them  as  commis- 


sioners to  open  books  of  subscription, 
Ala.  Civ.  Code  (1886),  §  1661.  This 
commission  may  be  as  follows: 

(In  the  office  of 
Jofm  Pomeroy, 
Judge  of  the 
Probate  Q,oMxX. 
To  John  Doe  and  Samuel  Short,  of  the 

city  oi  Birmingham,  county  and  state 

aforesaid: 

Please  take  notice  that  in  pursuance 
of  the  declaration  of  incorporation  by 
you  and  your  associates  this  day  duly 
filed  in  my  office  in  accordance  with 
the  statutes  of  the  state  of  Alabama  in 
such  case  made  and  provided,  I, /(J^m 
Pomeroy,  probate  judge  of  said  county 
and  state,  hereby  authorize  you  as 
commissioners  to  open  books  of  sub- 
scription to  the  capital  stock  of  the 
(name  of  corporation)  Si.x.  such  time  and 
place  and  upon  such  notice  as  you  may 
appoint. 

In  witness  whereof  I  have  hereunto 
set  my  hand  and  affixed  the  seal  of 
said  court  X\x\%  fifth  day  of  March,  i8gS. 

(seal)  fohn  Pomeroy, 

Probate  Judge." 

After  the  opening  of  books  of  sub- 
scription and  other  compliance  with  the 
provisions  of  the  law,  and  upon  proper 
affidavit  filed,  the  judge  of  probate 
must  issue  to  the  subscribers,  their  as- 
sociates and  their  successors,  a  certifi- 
cate of  incorporation.  Ala.  Civ.  Code 
(1886),  §  1663.  Such  certificate  may  be 
as  follows: 
"The  State  oi  Alabama,  }         InthePro- 

fefferson  County.  \     '  bate  Court. 

To  fohn  Doe   {naming    the    other    sub- 
scribers): 

Please  take  notice  that  whereas,  it 
appears  that  you  have  been  in  all  re- 
spects duly  organized  according  to  the 
laws  of  the  state  oi  Alabama,  as  appears 
from  the  declaration,  report  of  the  com- 
missioners appointed  to  open  books  of 
subscription,  the  minute  entry  of  the 
organization   of   your   corporation,  as 


532 


Volume  5. 


6392. 


CORPORA  TIONS. 


6392. 


the  civil  code  of  the  state  of  Georgia.  Whereupon  it  is  ordered,  that 
said  application  be  and  the  same  is  hereby  granted,  and  that  the 
above  named  persons  {jiaming  theni),  their  associates  and  successors, 
be  and  they  are  hereby  incorporated  for  and  during  the  term  of 
twenty  years,  under  the  name  and  style  of  The  Hawkinsville  Poultry 
Association,  with  the  privilege  of  renewal  at  the  expiration  of  that 
time,  according  to  the  provisions  of  the  civil  code^  of  the  state  of 
Georgia,  vested  with  all  the  rights,  privileges  and  immunities  by  law 
given  to  and  subject  to  all  the  restrictions  and  liabilities  by  law 
placed  upon  such  a  corporation. 

C.  C.  Smith,  Judge  of  the  Superior  Court 
of  Pulaski  County,  Georgia. 


2.  Amending"  Certificate  of  Incorporation.^ 


well  as  by  the  affidavit  of  the  persons 
authorized  to  receive  subscriptions,  all 
of  which  have  been  duly  filed  in  my 
office,  you  and  your  associates  and  suc- 
cessors are  hereby  duly  organized  as  a 
corporation  under  the  name  and  style 
of  (name  of  corporation),  and  for  the 
purposes  expressed  in  the  declaration, 
having  the  powers,  capacity  and  au- 
thority conferred  by  law  upon  such  a 
corporation. 

In  witness  whereof  I  have  hereunto 
set  my  hand  and  affixed  the  seal  of 
sa:d  court  this  twenty-fifth  day  of  March, 
i89<5'. 

(seal)  John  Pomeroy, 

Probate  Judge." 

Delaware.  —  The  approval  of  the 
judge  must  be  indorsed  upon  the  ap- 
plication and  the  same  transmitted,  so 
indorsed,  to  the  secretary  of  the  state, 
and  a  copy  of  the  same  furnished  and 
certified  by  said  secretary,  under  his 
hand  and  seal  of  office,  shall  be  recorded 
in  the  recorder's  office  of  the  county  in 
which  the  application  is  made.  17  Del. 
Laws,  c.  147  (Rev.  Stat.  (1893),  p.   574). 

North  Carolina.  —  Formerly  the  clerk 
issued  the  certificate  of  incorporation. 
Code  (1883),  §  679;  but  under  the  Pub- 
lic Laws  (1893),  c.  318,  after  the  articles 
of  agreement  have  been  recorded  the 
clerk  shall  send  a  copy,  certified  under 
the  seal  of  the  court,  to  the  secretary  of 
state,  who  shall  record  the  same,  and 
shall  issue  letters  patent  under  the 
great  seal  of  the  state,  declaring  the 
signers  of  the  articles  a  corporation, 
which  letters  patent  shall  be  recorded 
in  the  clerk's  office  where  the  articles  of 
agreement  are  recorded. 

Virginia. — Code  (1887),  §  1 145,  pro- 
viding that  the  court  or  judge  in  vaca- 
tion shall  have  discretion  to  grant  or 


refuse  a  charter  of  incorporation  upon 
the  terms  set  forth  in  the  certificate,  or 
granted  upon  such  other  terms  as  may 
be  adjudged  reasonable.  The  order 
granting  charter  may  be  as  follows: 

"  It  appearing  from  the  foregoing 
certificate  in  writing  made,  signed, 
sealed  and  acknowledged  in  due  course 
of  law  and  this  day  presented  to  me, 
John  Marshall,  judge  of  the  Circuit 
Court  of  Albemarle  county,  state  of 
Virginia,  that  (names  of  incorporators) 
desire  to  form  a  joint  stock  company 
under  the  provisions  of  the  code  of  the 
state  of  Virginia,  title  18,  chapter  47, 
for  the  purposes  set  forth  in  said  certifi- 
cate, which  said  certificate  is  hereby 
made  a  part  of  the  record  of  this  order, 
a  charter  of  incorporation  is  by  me 
hereby  granted  to  the  said  (names  of  in- 
corporators), their  associates,  successors 
and  assigns,  and  they  are  hereby  made 
and  created  a  body  corporate  by  the 
name  of  The  Albemarle  Horse  Breeders' 
Association,  with  all  the  powers,  privi- 
leges and  immunities  by  law  con- 
ferred upon  such  a  corporation  and 
subject  to  all  provisions  and  restric- 
tions imposed  by  law  upon  such  a  cor- 
poration according  to  the  terms  and 
conditions  and  for  the  purposes  set  out 
in  said  certificate  of  writing. 

Given  under  my  hand  this  first  day 
of  March,  ligS. 

John  Marshall, 

Judge  of  the  Circuit  Court 

of  Albemarle  County." 

1.  Amendment  of  charter  of  corporation 
may  be  by  a  proceeding  similar  to  the 
original  incorporation  proceeding. 

Alabama.  — Acts  (1889),  p.  17. 

Delarvare.  —  17  Laws,  c.  147  (Rev. 
Stat.  (1893),  p.  574). 

Georgia.— 2  Code  (1895),  §  2350. 


533 


Volume  5. 


6392.  CORPORA  TIONS.  6393. 

a.  Notice  to  Attorney-General.* 

Form  No.  6392.' 

In  the  matter'of  the  application  of  the  Northport  Company  ) 
to  amend  its  original  certificate  of  incorporation.  j 

To  Daniel  Webster,  Esq.,  Attorney-General  of  the  State  of  New 
York: 
You  will  please  take  notice  that  upon  the  petition  and  upon  all 
the  papers  on  file  in  this  proceeding,  including  the  original  certificate 
of  incorporation  as  well  as  the  proposed  amended  certificate  of 
incorporation,  copies  of  all  of  which  have  herewith  been  served 
upon  you,  the  undersigned,  at  the  special  term  of  the  Supreine  Court 
of  New  York,  to  be  held  at  Riverhead,  in  the  county  of  Suffolk,  state 
of  New  York,  on  the  twenty-Jifth  day  of  March,  i898,  at  len  o'clock 
in  the /(!7r^noon  of  that  day,  or  as  soon  thereafter  as  counsel  can  be 
heard,  will  make  application  to  said  court  under  and  by  virtue  of  the 
New  York  Laws  of  1890,  chapter  563,  as  amended  by  New  York 
Laws  of  1892,  chapter  687,  for  an  order  amending  said  original  cer- 
tificate of  incorporation  of  the  said  Norl/iporl  Company,  which  fails 
to  express  the  true  objects  and  purpose  of  the  corporation,  so  as  to 
truly  set  forth  such  object  and  purpose  as  set  forth  in  said  applica- 
tion, and  for  such  other  and  further  relief  as  to  the  court  may  seem 
proper  and  just. 

Dated  tht  fifth  day  of  March,  i898. 

Yours,  etc., 

Oliver  Ellsworth, 
Attorney  for  the  Northport  Company. 

b.  Petition.* 
Form  No.  6393.* 
Supreme  Court,  County  of  Suffolk. 
In  the  matter  of  the  application  of  the  Northport  \ 
Company  to  amend  the  original  certificate   of  >• 
incorporation.  ) 

To  the  Supreme  Court  of  the  State  of  New  York: 

Your  petitioner,  the  Northport  Company,  by  its  petition  here  to  the 
court,  says: 

North  Carolina.  —  Laws  (1885),  c.  19;  terms  and  conditions  as  it  may  impose, 

Laws  (1893),  c.  380.  amend  any  certificate  of  incorporation 

Virginia.  —  Code  (1887),  §  1145.  which  fails  to  express  the  true  object 

Consult  also  the  statutory  provisions  and    purpose    of    the    corporation,    so 

referred  to  supra,  note  i,  p.  527.  as  to   truly  set  forth  such  object  and 

For  change  of  name  of  a  corporation  by  purpose.     N.    Y.    Laws   (1890),  c.  563, 

amendment  or  otherwise  see  the   title  §   7,    as   amended  Laws   (1892),    c.   687 

Names.  (Birds.  Rev.  Stat.  (1896),  p.  651,  §  7). 

1.  For  forms  of  notices  of  motions  or  Consult  also  list  of  statutes  cited  j-u/r^z, 
applications,  generally,  consult  the  title  note  i,  p.  527 

Motions.  3.  For  formal  parts  of  petitions  of  this 

2.  New   York.  —  The  supreme  court     character,  generally,  see  the  title  Peti- 
may,  upon  due  cause  shown  and  proof    tions. 

made,  and  upon  notice  to  the  attorney-  4.  New  York.  —  N.  Y.  Laws  (1890), 
general  and  to  such  other  persons  as  c.  563,  as  amended  Laws  (1890),  c.  687 
the  court  may  direct,  and  upon  such     (Bird's  Rev.  Stat.  (1896),  p.  651,  §  7). 

534  Volume  5. 


6893.  CORPORATIONS.  6393. 

I.  That  it  now  is,  and  since  the  secotid  day  of  January^  iS98,  has 
been,  a  corporation  duly  incorporated,  organized  and  existing  under 
and  by  virtue  of  the  laws  of  the  state  of  New  York. 

II.  That  on  said  second  day  of  January,  \ZdS,  the  original  certifi- 
cate of  incorporation  of  said  Northport  Company  was  filed  and 
recorded  in  the  office  of  the  secretary  of  the  state  of  Neiu  York  as 
by  law  in  such  cases  required. 

III.  That  on  the  fifth  diay  oi  January,  iS98,  a  certified  copy  of 
said  original  certificate  of  incorporation  was  filed  and  recorded  in 
the  office  of  the  clerk  of  Suffolk  county,  state  oi  New  York,  as  in 
such  cases  by  law  required, 

IV.  That  a  copy  of  said  original  certificate  of  incorporation  of  the 
Northport  Company  is  hereto  annexed,  marked  Exhibit  A  and  made 
a  part  of  this  petition. 

V.  That  said  original  certificate  of  incorporation  fails  to  express 
the  true  object  and  purpose  of  said  corporation,  the  said  Northport 
Company. 

VI.  That  the  true  object  and  purposes  of  the  said  corporation, 
the  said  Northport  Company,  was  at  the  time  of  its  said  incorporation, 
and  ever  since  has  been  and  still  is,  as  follows,  to  wit:  (^Here  set  out 
the  true  object  and  purpose  of  the  corporation.") 

Wherefore,  in  accordance  with  and  under  the  provisions  of  the 
New  York  Laws  of  1890,  chapter  563,  section  7,  as  amended  by  the 
New  York  Laws  of  1897,  chapter  687,  your  petitioner,  the  said 
Northport  Co7npany,  prays  for  an  order  of  the  court  upon  such  terms 
and  conditions  as  it  may  impose,  directing  the  amendment  of  the 
said  original  certificate  of  incorporation  of  said  corporation, 
the  said  Northport  Company,  so  as  to  truly  set  forth  the  object  and 
purpose  of  said  corporation,  in  such  manner  that  the  amended  certi- 
ficate of  incorporation  may  conform  to  and  be  in  the  words  and 
figures  as  set  out  in  a  certain  proposed  amended  certificate  of  incor- 
poration heretofore  by  your  said  petitioner  made  and  executed,  and 
duly  signed  and  acknowledged  by  the  directors  of  said  corporation, 
which  said  proposed  amended  certificate  of  incorporation  is  hereto 
annexed,  marked  Exhibit  B  and  made  a  part  of  this  petition,  and  for 
such  other  and  further  relief  as  to  the  court  may  seem  just  and 
proper. 

f         V  The  Northport  Company, 

K^^^^)  By  John  Doe,  President. 

State  of  New  York,  \ 
County  of  Suffolk.     ]  ^^• 

I,  John  Doe,  being  first  duly  sworn,  upon  oath  say  that  I  am  the 
president  of  The  Northport  Company,  the  petitioner  named  in  the 
foregoing  petition;  that  the  foregoing  petition  is  true  of  my  own 
knowledge  except  as  to  the  matters  therein  stated  to  be  alleged  upon 
information  and  belief,  and  that  as  to  those  matters  I  believe  it  to 
be  true;  that  I  have  affixed  the  corporate  seal  of  said  corporation  to 
said  petition  and  signed  the  name  of  said  corporation  to  said  petition 
on  behalf  of  said  corporation  by  authority  of  its  board  of  directors. 

John  Doe. 

Sworn  to  before  me  this  second  d.z.y  of  March,  i898. 

(seal)  Norton  Porter,  Notary  Public. 

685  Volume  5. 


6394.  CORPORATIONS.  6395. 


In  the  Court  of  Common  Pleas  No.  i, 
of  Allegheny  County,  of  the  October 
and  November  Term,  i885.  No. 
91. 


Form  No.  6394, 

In  the  matter  of  the  petition  of ' 
the  Grand  Lodge  of  the  Order 
of  United  Workmen  of  Penn- 
sylvania for   certain    amend- 
ments and  alterations  in  the 
charter  of  said  order. 
To  the  Honorable  Judges  of  the  Court  of  Common  Pleas  of  Allegheny 
County: 
The   petition   of   the    Grand  Lodge  of  the  Ajicient  Order  of  United 
Workmen  of  Pennsylvania  respectfully  represents: 

That  the  petitioner,  the  Grand  Lodge  of  Ancient  Order  of  United 
Workmen  of  Pennsylvania,  is  an  association  incorporated  by  act  of 
assembly,  approved  March  9,  1871,  which  said  act  reads  as  follows: 
{Here  was  set  out  the  act^;  that  said  corporation  is  embraced  in 
corporations  of  the  first  class,  specified  in  section  two  of  the  act  of 
April  29,  1874,  entitled  "An  Act  to  provide  for  the  incorporation 
and  regulation  of  certain  corporations,"  and  its  supplements;  that 
the  corporation,  in  pursuance  of  the  said  act  of  1874,  being  desirous 
of  altering  and  amending  the  articles  and  conditions  of  its  said  act 
of  incorporation,  duly  adopted,  at  the  regular  annual  session,  held  in 
January,  i885,  the  following  amendments:  {Here  was  set  out  specifi- 
cally the  amendments  adopted?^ 

Your  petitioner  therefore  prays  the  honorable  court  to  order  a  decree 
that  the  amendments  and  alterations  above  specified  be  approved, 
and  made  a  part  of  the  charter  of  the  said  Grand  Lodge  of  Ancient 
Order  of  United  Workmen  of  Pennsylvania. 

In  witness  whereof,  the  corporate  seal  of  said  corporation  has  been 
hereto  affixed,  duly  attested,  this  twenty- fifth  day  of  October,  1S8S. 
(seal)  Joseph  C.  Smith,  Grand  Master  Workman. 

Attest:     Joseph  M.  McNair,  Grand  Recorder. 
{Acknowledgment.^ 

e.  Decree.^ 

(1)  Interlocutory. 

Form  No.  6395.* 
(Precedent  in  In  re  First  Presb.  Church,  iii  Pa.  St.  157.)* 

1.  Pennsylvania. — P.  L.  (1874),  p.  73  4.  Pennsylvania. —  P.  L.  (1869),  p.  82. 
(Bright.  Pur.  Dig.  (1894),  p.  409,  §  24).  Compare  P.  L.  (1874),  p.  73  (Bright. 
Consult  also  list  of  statutes  cited  i-M/ra,  Pur.  Dig.  (1894),  p.  409,  §  24),  provid- 
note  I,  p.  527.  ing   for  a  similar   decree  in  cases   of 

This  petition  is  based  on  the  facts  in  In  amendment  of  charter  of  an  ordinary 

re  Grand  Lodge,  etc.,  no  Pa.  St.  613.  corporation.     Consult  also  list  of  stat- 

2.  Petition  should  state  all  facts  neces-  utes  cited  supra,  note  i,  p.  527,  for 
sary  to  enable  the  court  to  act  under-  similar  provisions  in  other  jurisdic- 
standingly;  nothing  should    be  left  to  tions. 

inference.     The  petition  in  In  re  Grand  5.  Another  Precedent. — In  In  r^  Grand 

Lodge,  etc.,  no  Pa.  St.  613,  was  defec-  Lodge,  etc.,  no  Pa.  St.  615,  the  follow- 

tive  for  this  reason.  ing  decree  amending  the  charter  of  in- 

3.  For  the  formal  parts  of  decrees  or  corporation  is  given:  "And  now,  to 
orders,  generally,  consult  the  titles  De-  wit,  March  gth,  18^,  the  foregoing 
CREES  and  Orders.  amendments   and    alterations    of    the 

536  Volume  5. 


6396.  CORPORATIONS.  6396. 

In  the  Court  of  Common  Pleas  No.  2,  of  Allegheny  County. 
In  the  matter  of   the  apphcation  of  First'\ 

Presbyterian    Church    of    Bloomfield  for  I 

amendment    of   charter   and    change   of  | 

name.  J 

And  now,  November  17th,  xZS^.,  the  foregoing  petition  exhibited  in 
open  court,  and  it  appearing  to  the  court  that  due  notice  of  this 
apphcation  and  these  proceedings  were  given  to  th&^Auditor-Getieral 
of  Pennsylvania,  on  the  15th  day  of  November,  i8<£4  (proof  thereof 
being  filed  in  this  court) ;  and  the  court,  upon  consideration  thereof, 
being  of  opinion  that  said  amendment  of  the  charter  and  change  of 
name  of  said  corporation  will  be  lawful,  beneficial,  and  not  injurious 
to  the  community,  do  direct  said  petition,  or  writing,  to  be  filed  in 
the  office  of  the  prothonotary  of  the  court,  and  that  notice  thereof 
be  inserted  in  one  newspaper  printed  in  said  county  for  three  weeks, 
setting  forth  that  said  application  has  been  made,  and  that  a  decree 
will  be  made  on  the  5th  day  of  January,  i885,  at  10  o'clock  a.  m. 
conformably  to  the  prayer  of  the  petition,  unless  sufficient  reason 
be  shown  why  the  same  should  not  be  made. 

By  the  court, 

Christopher  Magee,  Judge. 

(2)  Final. 

Form  No.  6396.' 
(Precedent  in  In  re  First  Presb.  Ciiurch,  iii  Pa.  St.  159.)* 

(  Title  of  court  and  cause  as  in  Form  No.  6395. ) 

And  now,  to  wit,  June  27th,  i885,  it  appearing  to  the  court  that 
the  order  of  the  court  made  November  19th,  i2>8J^,  as  to  the  notice  to 
be  inserted  in  a  newspaper  printed  in  the  county  for  three  weeks,  set- 
ting forth  that  said  application  had  been  made,  and  that  a  decree 
would  be  made  on  the  fifth  day  oi  January,  iS85,  at  ten  o'clock  A.  m. 
conformably  to  the  prayer  of  the  petition  unless  sufficient  reason  be 

Act    of    Incorporation    of    the    Grand  and    the   Commercial  Gazette;  and   that 

Lodge   of  the  Ancient  Order  of   United  the  same  will  be  granted  on  April  4th ^ 

Workmen  of  Pennsylvania  having  been  iSc?^,  unless  exceptions  are  filed  thereto 

duly  presented  to  this  court,  in  order  before  said  date." 

that  the  same   might  be  deemed   and  See  also  In  re  First   Presb.  Church, 

taken  to  be  a  part  of  the  Act  of  Incor-  107  Pa.  St.  544,  for  another  order  of  this 

poration    or    Charter    of    said    Grand  character. 

Lodge,  and  it  appearing  to  the  court  1.  Pennsylvania.  —  See  supra,  note 
that  such  amendments  are  lawful  and  i,  p.  527.  See  also  In  re  First  Presb. 
beneficial,  and  do  not  conflict  with  the  Church,  107  Pa.  St.  543,  for  another 
requirements  or  the  Act  of  the  General  order  of  this  character. 
Assembly  of  this  commonwealth,  en-  2.  In  this  case  it  was  held  that  the 
titled  '  An  Act  to  provide  for  the  Incor-  court  of  common  pleas  might  change 
poration  and  Regulation  of  certain  the  name  of  a  corporation  to  that  of 
Corporations,'  approved  the  29th  day  another  corporation,  but  that  the 
of  April,  1874,  nor  with  the  constitution  change  did  not  invest  the  corporation 
of  this  state,  it  is  hereby  ordered  and  under  its  new  name  with  any  property, 
decreed  that  notice  thereof  shall  be  trusts  or  charter  rights  of  the  corpora- 
given  by  publication,  in  accordance  tion  whose  name  it  had  taken.  Inre 
with  the  statute  in  such  case  made  and  First  Presb.  Church,  11 1  Pa.  156. 
provided,   in   the   Chronicle,    Telegraph, 

537  Volume  5. 


6396. 


CORPORA  TIONS. 


6397. 


shown  why  the  same  should  not  be  done,  has  been  complied  with, 
and  no  sufficient  reason  having  been  shown  why  the  said  amendment 
of  the  charter  and  change  of  name  of  the  said  corporation  should 
not  be  made,  it  is  now  ordered,  adjudged  and  decreed  that  the  name 
of  said  corporation  shall  be  the  Fourth  Presbyterian  Church  of  Pitts- 
burgh, and  that  said  amendment  and  change  of  name  shall  be 
deemed  and  taken  (when  duly  recorded)  to  be  a  part  of  the  charter 
of  said  corporation;  and  it  is  further  ordered  that  said  amendment 
shall  be  recorded  in  the  office  for  the  recording  of  deeds,  in  and  for 
the  said  county  of  Allegheny. 

By  the  Court: 

Christopher  Magee^  Judge. 


II.  CONSOLIDATED  CORPORATIONS.^ 
1.  Proceedings  by  or  on  Behalf  of.^ 


1.  For  statutory  provisions  relating  to 
the  consolidation  of  corporations,  gen- 
erally, consult  the  following: 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  625  et  seq. 

Illinois. — Starr  &  C.  Anno.  Stat. 
(1896),  p.  1036,  pars.  80-82. 

Maryland.  —  Pub.  Gen.  Laws  (1888), 
art.  23,  §  39. 

Maine.  —  Laws  (1891),  c.  84. 

Nevada.  —Gen.  Stat.  (1885),  §§  1075, 
1076. 

Pennsylvania.  —  Bright.  Pur.  Dig. 
(1894),  p.  413,  §  38. 

Tennessee.  —  Code    (1896),    §§    2024- 

2544- 

Utah.  — Rev.  Stat.  (1898),  §  340. 

See  also  list  of  statutes  cited  supra, 
note  I,  p.  527. 

For  statutory  provisions  relating  to 
the  consolidation  of  railroad  corpora- 
tions consult  the  following: 

Alabama.  —  Civ.  Code  (1886),  §  1580. 

Arizona.  —  Rev.  Stat.  (1887),  §  317. 

Arkansas. — Sand.  &  H.  Dig.  (1894), 
§§6188,  6189. 

California.  —  Civ.  Code  (1897),  §§  361, 

473- 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  604  et  seq. 

Connecticut.  —  Gen.  Stat.  (1888),  § 
3443  et  seq. 

Florida.  —  Rev.  Stat.  (1892),  §  2248. 

Georgia.  —  2  Code  (1895),  §  2173  et 
seq. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  3236,  par.  23;  p.  3240,  par.  32; 
p.  3241,  par.  33  et  seq. 

Indiana.  —  Horner's  Stat.  (1896),  §§ 
3556,  3951.  3965-3979- 

Kansas.  —  i  Gen.  Stat.  (1897),  pp. 
761-763. 


Maryland.  —  Laws  (1890),  c.  553. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§  3343  et  seq.;  Pub.  Acts  (1891),  p.  277. 

Minnesota.  —  Rev.  Stat.  (1894),  §  2715 
et  seq. 

Missouri.  —  Rev.  Stat.  (1889),  §  2567. 

Montana.  — Civ.  Code  (1895),  §§  911- 
924. 

Nebraska.  —  Comp.  Stat.  (1897),  § 
1764  et  seq. 

Newfersey.  —  Gen.  Stat.  (1896),  pp. 
2635-2719. 

New  Mexico.  — Comp.  Laws  (1885),  § 
2702  et  seq. 

New  York.  —  Birds.  Rev.  Stat.  (1896), 
pp.  2530,  2531,  2552-2558. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
3386  et  seq. 

Oklahoma.  —  Stat.  (1893),  §  1016  et 
seq. 

Pennsylvania.  —  Bright.  Pur.  Dig. 
(1894),  p.  1801,  §  107  et  seq. 

South  Carolina.  —  Rev.  Stat.  (1893), 
§  161 5  et  seq. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §  2986. 

Tennessee.  —  Code    (1896),    §§    2024- 

2544. 

Texas.  —  Rev.  Stat.  (1895),  §  4529. 

[/tah.  —  Rev.  Stat.  (1898),  §  435. 

Washington.  —  Ballinger's  Codes  & 
Stat.  (1897),  §  4304. 

West  Virginia. — Code  (1887),   c.    54, 

§53. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  1833. 

Wyoming.  —  Rev.  Stat.  (1887),  §  562. 

2.  Proceedings  by  and  against  corpora- 
tions, generally,  see  supra,  note  I, 
p.  527. 

Sufficiency  of  Averment  of  Consolida- 
tion.—  In  the  Matter  of  Minneapolis, 


538 


Volume  5. 


6397. 


CORPORATIONS. 


6397. 


a.  To  Enforce  Consolidation  Agreement.' 

(1)  Bill  in  Equity. 

Form  No.  6397.* 


The    Philadelphia    and    Reading^\xi\Xit  Q,owr\.  of  Common  Pleas,  ^o. 

Railroad  Company,  plaintiff,  ^    for  the   City  and  County  of 

against  \     Philadelphia.     Of  the  December 

The  River  Front  Railroad  Com-  I      Terra,  i8<?9.     No.  861.     Sitting 

pany,  defendant.  J      in  Chancery. 

To  the  Honorable  Judges  of  the  said  Court: 

Your  orator  complains  and  says  that: 

I.  The  plaintiff,  the  Philadelphia  and  Reading  Railroad  Company^ 
was  incorporated  under  the  act  of  assembly  of  this  commonwealth, 
entitled  "An  Act  to  authorize  the  governor  to  incorporate  the  Phila- 
delphia and  Reading  Railroad  Company,"  approved  April  4,  1833, 
under  which  it  constructed  and  now  owns  the  railroad  extending 


etc.,  R.  Co.,  36  Minn.  481,  where  peti- 
tioner instituted  proceedings  to  con- 
demn a  crossing  at  grade  over  the  right 
of  way  of  another  company,  it  was  held 
that  the  allegation  set  forth  as  the  peti- 
tioner's creation  and  existence  as  a  con- 
solidated corporation  was  sufficient. 
These  allegations  were  as  follows: 
"Your  petitioner,  Xh^  Minneapolis  and 
St.  Louis  Railway  Company,  avers  that 
on  theyfrj/day  oijune,  A.  D.  i8<f/,  it 
was  constituted  a  corporation  for  rail- 
way purposes,  under  the  corporate 
name  of  the  Minneapolis  and  St.  Louis 
Railway  Company,  and  vested  with  and 
now  owns  and  possesses  all  the  rights, 
properties  and  franchises  of  the  Min- 
neapolis and  St.  Louis  Railway  Company 
(that  certain  corporation  created  by  and 
existing  under  chapter  66  of  the  Special 
Laws  of  the  legislature  of  the  territory 
of  Minnesota,  entitled  '  An  act  to  incor- 
porate the  Minnesota  Western  Rail- 
road Company,'  approved  March  3, 
1853,  and  the  several  acts  amendatory 
thereof),  the  Minneapolis  and  Duluth 
Railway  Company  (a  corporation  duly 
created  and  existing  under  the' laws  of 
the  state  of  Minnesota),  the  Minnesota 
and  Iowa  Southern  Railroad  Company 
and  the  Fort  Dodge  and  Fort  Ridgely 
Railroad  Company  (each  a  corporation 
for  railway  purposes,  duly  organized 
and  existing  under  the  general  incor- 
poration laws  of  the  state  of  Iowa),  by 
and  through  certain  consolidation  pro- 
ceedings and  agreements  entered  into 
between  said  companies  severally,  pur- 
suant to  the  laws  aforesaid,  the  general 
laws  of  this  state  and  similar  general 
laws  in  the  state  of  Iowa." 


After  consolidation  is  completed  by  the 
filing  of  the  certificate  with  the  secre- 
tary of  state,  the  new  corporation 
succeeds  to  the  rights,  powers  and  fran- 
chises of  the  original  corporation  upon 
the  election  of  a  board  of  directors.  In 
a  pleading  by  the  new  corporation,  all 
these  facts  must  be  affirmatively  al- 
leged. Mansfield,  etc.,  R.  Co.  v.  Brown, 
26  Ohio  St.  223. 

Most  be  Sued  in  Name  of  Consolidated 
Corporation.  —  An  action  by  or  against 
a  corporation,  brought  prior  to  its  con- 
solidation with  another  corporation, 
cannot  after  consolidation  be  prose- 
cuted by  or  against  it  or  in  its  original 
name.  Kansas,  etc.,  R.  Co.  v.  Smith, 
40  Kan.  192.  The  new  corporation 
may  be  substituted  in  place  of  the 
original.  See  California  Cent.  R.  Co. 
V.  Hooper,  76  Cal.  404.  But  compare 
Cunkle  v.  Interstate  R.  Co.,  54  Kan. 
194,  as  to  the  time  of  substitution.  The 
new  corporation  by  adopting  a  petition 
in  error  of  one  of  the  constituent  cor- 
porations thereby  becomes  substitute 
as  a  party  in  the  court  below  on  a  new 
trial  therein.  Wichita,  etc.,  R.  Co.  v. 
Quinn,  57  Kan.  737. 

1.  For  forms  relating  to  specific  enforce- 
ment of  contracts,  generally,  consult  the 
title  Spf.cific  Performance. 

2.  This  bill  is  based  upon  the  facts  of 
the  case  of  Philadelphia,  etc.,  R.  Co.  f. 
River  Front  R.  Co.,  168  Pa.  St.  358. 

For  formal  parts  of  bills  in  equity, 
generally,  consult  the  title  Bills  in 
Equity,  vol.  3,  p.  417  et  seq.\  of  com- 
plaints and  petitions,  consult  the  title 
Complaints,  vol.  4,  p.  1019  et  seq. 


539 


Volume  5. 


6397.  CORPORATIONS.  6397. 

from  the  city  of  Philadelphia  to  various  points  in  the  interior  of  this 
state;  that  the  terminus  of  the  road  is  in  the  city  of  Philadelphia  at  a 
point  known  as /'fjr/ ^/V/z/wt;//^,  the  southern  boundary  of  the  prop- 
erty of  said  company  at  that  place  being  Cutnberland  street,  in  the 
eighteenth  ward  of  said  city. 

II.  That  by  a  supplement  to  said  act  of  assembly,  approved  April 
12, 1864,  entitled  {Here  was  set  out  title  of  the  act),^  the  right  to  make 
lateral  or  branch  roads,  leading  from  the  main  line  of  its  railroad  to 
places  or  points  in  any  of  the  counties  into  or  through  which  the 
said  main  line  may  pass,  was  conferred  upon  the  Philadelphia  and 
Reading  Railroad  Cofnpany. 

III.  That  the  defendant,  the  River  Front  Railroad  Company,  was 
incorporated  on  the  fifteenth  day  of  May,  iS76,  under  the  provisions 
of  an  act  of  assembly,  approved  April  4,  1868,  entitled  (Here  was  set 
out  title  of  the  aet).^ 

IV.  That  by  the  twelfth  section  of  said  act  of  April  4,  1868,  it  is 
provided  that  "  no  corporation  formed  thereunder  shall  enter  upon 
or  occupy  any  street,  lane  or  alley  in  any  incorporated  city  without 
the  consent  of  such  city  being  first  obtained." 

V.  That  in  i877  the  River  Front  Railroad  Company  and  the  Phila- 
delphia and  Reading  Railroad  Compa?iy  each  proposed  building  a  branch 
railroad  upon  the  same  streets  in  the  city  of  Philadelphia,  and  it  was 
agreed  between  them  that  the  two  companies  should  build  and  own 
jointly  a  single  line  between  Callowhill  and  Cumberland  streets,  and 
an  ordinance  of  the  city  of  Philadelphia  was  passed  and  approved 
May  21,  1877,  entitled  {Here  was  set  out  title  of  ordinance').'^ 

VI.  That  the  legal  effect  of  the  ordinance  was  to  give  the  consent 
of  the  city  oi  Philadelphia  to  both  of  said  railroad  companies  to  enter 
on  and  occupy  the  streets  named  therein. 

VII.  That  in  accordance  with  the  agreement  aforesaid,  and  the 
provisions  of  the  ordinance  mentioned,  the  two  railroad  companies 
did  construct  jointly  in  the  year  i%81  a  double  track  railroad  extend- 
ing from  the  south  side  of  Cumberland  street  along  Peach  street  to 
Shackamaxon  street;  thence  through  private  property  to  Delaware 
avenue  and  along  Delaware  avenue  to  Callowhill  street,  in  the  eleventh 
ward  of  the  said  city,  and  the  cost  of  construction  was  borne  equally 

1.  The  title  of  the  act  referred  to  in  the  from  the  point  of  connection  with  the 
text  was  as  follows:  "An  Act  extending  Pennsylvania  Railroad  as  then  located, 
so  much  of  the  provisions  of  the  act  to  constructed,  and  in  use  at  Delaware 
incorporate  the  Pennsylvania  Railroad  avenue  and  Dock  street,  by  such  route 
Company,  approved  April  13th,  1846,  as  as  should  be  approved  by  the  select 
relates  to  the  making  of  lateral  or  and  common  councils  of  the  city  of 
branch  railroads  to  the  Lebanon  Valley  Philadelphia,  to  a  point  of  connection 
and  Philadelphia  and  Reading  Railroad  with  the  Philadelphia  and  Trenton 
Companies."  Railroad     at     its     Kensington     depot 

2.  The  title  of  the  act  referred  to  in  the  grounds  at  Harrison  and  Leib  streets." 
text  was  as  follows:  "An  Act  to  au-  3.  The  title  of  the  ordinance  referred  to 
thorize  the  formation  and  regulation  in  the  text  was  as  follows:  "An  ordi- 
of  railroad  companies,  for  the  purpose  nance  to  authorize  the  River  Front 
of  constructing,  operating,  and  main-  Railroad  Company  and  the  Philadel- 
taining  a  railroad  for  public  use  for  phia  and  Reading  Railroad  Company 
the  conveyance  of  persons  and  prop-  to  severally  and  jointly  occupy  and  use 
erty  to  be  located  in  the  city  and  certain  streets  for  railroad  purposes." 
county  of  Philadelphia  and  to  extend 

540  Volume  5. 


6397. 


CORPORA  TIONS. 


6397. 


by  the  said  two  companies,  and  the  same  is  owned  by  them  as  equal 
tenants  in  common. 

VIII.  That  the  said  railroad  until  May  1,  i889,  was  maintained  and 
operated  by  both  the  said  companies  jointly  under  the  terms  of  an 
agreement,  a  copy  of  which",  marked  Exhibit  D,  is  annexed  as  part 
of  the  bill.i 


1.  Agreement  for  joint  control  of  track, 
marked  Exhibit  D  and  referred  to  in 
the  text,  was  as  follows: 

"Agreement  between  Philadelphia  and 
Reading  Railroad  Company  and  the  River 
Front  Railroad  Company. 

Rules  for  the  government  of  the  Rail- 
road on  Delaware  z.\^ViW&,  Philadelphia, 
between  Cumberland  street  and  Callow- 
hill  slTQ^i.     Taking  effect  May  ist,  x'isSz. 

There  shall  be  appointed  a  Joint  Dis- 
patcher, whose  sole  duty  shall  be  the 
traflSc  management  of  the  line  between 
Cumberland  and  Callowhill  streets,  on 
Delaware  avenue. 

The  maintenance  of  the  line  shall  be 
divided  between  the  two  interests  in 
such  a  manner  that  the  Engineer's  de- 
partment of  the  Reading's  interest  shall 
have  charge  of  the  maintenance  of  the 
line  for  tzvelve  [rs)  months  at  a  time, 
and  that  of  River  Front  Railroad  for 
like  periods,  neither  interest,  except  by 
an  agreement,  to  retain  charge  for  a 
longer  continuous  period  than  one  year, 
it  being  understood  that  the  first  year's 
management,  dating  from  Mayist,  i9>82, 
and  terminating  April  joth,  l?)8j,  shall 
be  assumed  by  the  River  Front  Rail- 
road Company. 

The  intention  of  the  joint  ownership 
is,  that  the  cost  of  maintaining  the  line, 
and  all  other  expenses,  except  the  pay 
of  the  Dispatcher,  shall  be  borne  in 
proportion  to  the  actual  tonnage  repre- 
sented by  the  two  interests,  but  the 
strict  enforcement  of  the  actual  tonnage 
method  may,  by  mutual  consent,  be 
suspended  and  instead  an  estimated 
weight,  to  be  agreed  upon,  may  be  ap- 
plied to  each  loaded  car,  which  until  the 
removal  of  the  actual  weight  method 
shall  become  the  basis  for  determining 
the  proj>ortion  of  expenses  chargeable 
to  the  respective  interests,  or  in  lieu  of 
either  of  the  foregoing  methods,  having 
in  view  more  especially  the  avoidance  of 
the  expense  that  would  be  incurred  in 
keeping  an  accurate  account  of  cars 
moved,  and  so  long  as  it  shall  be  mu- 
tually satisfactory,  it  may  be  proper  to 
assume  that  there  has  been  an  equal 
division  of  the  tonnage  between  the  re- 
spective interests  of  the  parties  to  this 


agreement,  and  thg  expenses  may  be 
so  adjusted,  subject,  however,  to  an  im- 
mediate restoration  of  the  tonnage  basis 
whenever  a  desire  that  such  be  done  be 
expressed  by  either  interest. 

The  adjustment  of  the  tonnage,  and 
all  other  accounts  appertaining  to  the 
operation  and  maintenance  of  the  line, 
shall  be  made  quarterly  through  such 
officers  as  shall  be  designated  by  the 
respective  interests. 

The  pay  of  the  Dispatcher  shall  be 
fixed  by  the  joint  interests,  and  each 
shall  bear  an  equal  share  of  the  same, 
each  interest  paying  direct  to  the  Dis- 
patcher their  proportion  of  the  salary, 
the  purpose  of  this  method  being  that 
the  Dispatcher  shall  keep  in  constant 
mind,  that  as  between  the  two  interests 
he  is  a  joint  representative  of  a  joint 
ownership;  it  is  also  agreed  that  under 
no  circumstances  will  it  be  proper  for 
either  interest  to  pay  to  the  Dispatcher 
more  than  one-half  of  the  agreed  salary, 
and  that  an  expression  of  dissatisfaction 
from  either  interest  shall  be  considered 
a  good  and  sufficient  reason  for  the 
Dispatcher's  removal. 

The  charge  for  tolls  and  motive  pow- 
er, applying  from  Afny  ist,  1Z82,  which 
each  interest  shall  make  and  collect 
from  Consignees  or  Shippers  upon  cars 
delivered  or  taken  from  private  sidings, 
shall  be  one  dollar  {%i.oo)  per  eight- 
wheeled  loaded  car,  which  rate  shall 
continue  in  force  until  changed  by  an 
agreement  between  the  proper  officers 
of  the  respective  interests. 

All  questions  as  to  the  management 
of  the  joint  line  that  may  arise  here- 
after shall  be  referred  to  the  General 
Managers  of  the  joint  interests,  or  to 
such  officers  as  they  may  delegate  for 
that  purpose. 

The  foregoing  has  been  approved  and 
accepted  on  behalf  of  the  Receivers  of 
the  Philadelphia  and  Reading  Railroad 
Company. 

By  /.  E.  Wootten, 

General  Manager. 

The  foregoing  has  been  approved  and 
accepted  on  behalf  of  the  River  Front 
Railroad  Company. 

By  O.  E.  McClellan." 


541 


Volume  5. 


6897.  CORPORATIONS.  6397. 

IX.  That  at  present  the  River  Front  Railroad  Company  is  leased 
and  operated  by  the  Pennsylvania  Railroad  Company^  a  corporation 
existing  under  the  laws  of  this  comfnonwealih,  and  that  the  president 
of  the  said  River  Front  Railroad  Company  is  one  of  the  vice-presidents 
of  the  Pennsylvania  Railroad  Company,  and  the  board  of  directors  of 
the  former  company  is  composed  entirely  of  persons  who  are  also 
directors  of  the  latter. 

X.  That  the  railroad  of  the  River  Front  Railroad  Company  extends 
both  north  and  south  of  the  joint  railroad  before  mentioned,  and 
connects  the  railroad  of  the  Pennsylvania  Railroad  Company  at  Dock 
street,  in  the  fifth  ward  of  the  city  oi  Philadelphia,  with  the  Philadel- 
phia and  Trenton  Railroad  Company,  which  is  leased  and  operated  by 
the  Pennsylvania  Railroad,  at  a  point  in  the  twenty-fifth  ward  of  said 
city, 

XI.  That  the  said  railroad  between  Calloivhill  street  and  Cumber- 
land street  is  also  connected  with  the  main  line  of  the  Philadelphia 
and  Reading  Railroad  at  a  point  just  north  of  Cumberland  street,  and 
the  traffic  of  said  railroad  between  Callowhill  street  and  Cumberland 
street  is  exclusively  transported  in  cars  to  the  separate  railroads  of 
the  Pennsylvania  Railroad  and  the  Philadelphia  and  Reading  Railroad 
Company. 

XII.  That  numerous  warehouses,  wharves  and  other  places  of 
business  are  situated  along  the  line  of  the  common  railroad,  and 
since  its  construction,  turnouts  and  sidings  have  been  constructed 
connecting  the  same  with  said  warehouses,  wharves  and  places  of 
business. 

XIII.  That  in  pursuance  of  the  agreement  referred  to  oi  May  1, 
i882,  Exhibit  T>,  the  plaintiff  and  defendant  alternated  in  taking 
charge  of  the  maintenance  of  said  line  of  railroad  on  Delaware  avenue 
up  to  \\it.  first  day  of  May,  i887,  when  it  became  the  right  of  the 
Philadelphia  and  Reading  Railroad  to  take  charge  of  the  mainten- 
ance of  said  line  under  said  agreement. 

XIV.  That  said  company  was  then  in  the  hands  of  receivers,  and 
at  the  instance  of  the  River  Front  Railroad  Company,  permitted  the 
company  to  take  charge  of  the  maintenance  of  said  line  on  Delaware 
avenue  from  l\i^  first  day  of  May,  i887,  to  the  first  day  of  May,  i888. 

XV.  That  this  arrangement  was  entirely  provisional  and  only  had 
application  to  the  year  beginning  May  1,  i887,  and  ending  May  1, 
i888.  That  the  River  Front  Railroad  continued  in  charge  of  said 
railroad  during  the  year  extending  from  May,  i888,  to  May,  i889. 

XVI.  That  prior  to  the  first  day  of  May,  i889,  the  plaintiff  desired  to 
take  charge  of  the  maintenance  of  the  line  for  the  year  extending 
from  thefirstday  of  May,  i889,  in  accordance  with  said  agreement,  and 
notified  the  River  Front  Railroad  Company  of  its  purpose  so  to  do,  and 
to  this  end  entered  into  possession  of  the  railroad  on  Delaware 
avenue. 

XVII.  That  the  River  Front  Railroad  Company  then,  unlawfully  and 
in  violation  of  the  terms  of  said  agreement,  procured  a  large  number 
of  men  and  placed  them  along  the  line  of  the  railroad,  and  forcibly 
prevented  the  plaintiff  from  making  the  repairs  necessary  to  maintain 
the  line  on  said  Delaware  avenue,  and  further  obstructed  and  inter- 

543  Volume  5. 


6398.  CORPORATIONS.  6398. 

fered  with  the  plaintiff  in  the  exercise  of  the  rights  vested  in  it  by  the 
terms  of  the  agreement  in  regard  to  the  maintenance  of  said  road. 

XVIII.  That  in  order  to  preserve  the  public  peace  the  mayor  of 
the  city  of  Philadelphia  directed  the  maintenance  of  said  line  on 
Delaware  avenue  to  be  taken  in  charge  of  the  department  of  public 
safety  of  the  city  of  Philadelphia^  and  that  the  road  since  May  i,  i859, 
has  been  maintained  by  the  mayor  of  the  city  of  Philadelphia^  acting 
through  the  department  of  public  safety.  That  the  River  Front 
Railroad  Company  denies  the  right  of  the  Philadelphia  and  Reading 
Railroad  Company  to  take  charge  of  the  said  road  at  any  time,  under 
said  agreement,  and  the  plaintiff  is  thereby  deprived  of  the  rights 
vested  in  it  under  the  agreement,  including  the  right  to  take  charge 
and  maintain  said  road. 

Wherefore  it  prays: 

ist.  That  the  defendant  shall  keep,  preserve  and  perform  all  the 
terms,  covenants  and  conditions  of  the  agreement  of  May  i,  i8^^, 
and  especially  the  covenant  authorizing  the  Philadelphia  and  Reading 
Railroad  Company,  in  each  alternate  year,  to  take  charge  of  the  main- 
tenance of  the  line  on  Delaware  avenue,  as  set  forth  in  the  agreement. 

2d.  That  an  injunction  be  issued  restraining  the  River  Front  Rail- 
road Company,  its  officers  and  agents,  from  obstructing  or  interfering 
with  the  plaintiff,  its  officers  and  agents,  in  taking  charge  of  and 
maintaining  the  said  line  during  said  period. 

3d.  {General  relief  .^ 

George  P.  Smith,  Plaintiff's  Solicitor, 

(2)  Answer. 

Form  No.  6398.' 

Supreme  Court.     New  York  County. 

The  Bradford,  Eldred  and  Cuba  Railroad  " 
Company,  and  Thomas  C.  Piatt,  as  re- 
ceiver, plaintiffs, 

against 

The  New  York,  Lake  Erie  and  Western 
Railroad  Company,  defendant. 
The  amended  answer  of  the  defendant  to  the  complaint  of  the 

plaintiff  in  the  above  entitled  action: 

The  said  defendant,  answering  the  said  complaint  — 

First.  Denies  that  he  has  any  knowledge  or  information  sufficient 

1.  This  answer  is  copied  from  the  record  to  guarantee  payment  of   interest   on 

in  the  case  of  Bradford,  etc.,  R.  Co.  v.  bonds  of  that  other,  in  case  of  inability 

New  York,  etc.,  R.  Co.,  123  N.  Y.  316.  of  the  latter  to  do  so,  equity  would  not 

The  complaint  in   that  case  sought  to  decree    specific    performance   of  such 

enforce    a   certain     consolidation    and  contract. 

traffic  agreement  between  the  plaintiff  Por  the  formal  parts  of  answers,  gen- 

and  the  defendant,  and  for  an  account-  erally,  consult   the   titles  Answers  in 

ing.     It  was  held  that,  where  two  rail-  Code     Pleading      and     Answers    in 

road    companies   had  entered   into   an  Equity;    of   pleas,   generally,    consult 

agreement  by  which  one  was  to  have  the  title  Pleas. 
virtual  control  of  the  other  and  it  was 

543  Volume  5. 


6398.  CORPORATIONS.  6398. 

to  form  a  belief  of  the  allegations  contained  in  the  second  paragraph 
thereof;  that  by  order  of  this  court,  duly  made  and  entered  on  the 
fourth  day  of  February,  i885,  or  otherwise  in  a  certain  action  then 
depending,  wherein  the  Metropolitan  Trust  Company,  of  the  city  of 
New  York,  was  and  is  plaintiff,  and  the  plaintiff  company  herein  was 
defendant,  the  plaintiff  Thomas  C.  Piatt  was  appointed  receiver  of 
the  property  and  franchises  of  this  plaintiff  company,  with  the  right 
to  sue  on  behalf  of  the  said  company,  or  that  said  Thomas  C  Piatt,  duly 
or  otherwise,  qualified  and  entered  upon  the  performance  of  his 
duties  as  such  receiver. 

Second.  Admits  the  allegation  of  the  fourth  paragraph  of  said 
complaint,  that  at  the  several  times  thereafter  set  forth  in  said  com- 
plaint, the  railroads  of  the  plaintiff  company  and  of  the  defendant 
connected  with  each  other  at  two  places,  namely,  at  Wellsville  and 
Cuba,  but  denies  the  allegation  of  said  fourth  paragraph  that  said 
plaintiff's  road,  by  reason  of  said  connection  or  otherwise,  was  tribu- 
tary to  the  defendant's  road,  or  in  a  situation  to  exchange  traffic  and 
business  with  it  to  mutual  advantage,  or  that  by  reason  of  the  alleged 
relation  of  the  said  roads  to  each  other,  or  because  a  large  or  any 
amount  of  traffic  and  business  could  be  delivered  to  the  defendant, 
or  be  diverted  from  it  to  rival  lines  (as  to  all  of  which  defendant 
denies  that  it  has  any  knowledge  or  information  sufficient  to  form 
a  belief),  or  otherwise,  the  defendant  desired  and  sought  to  establish 
close  and  permanent  or  any  business  or  other  relations  with  the 
plaintiff  company. 

And  defendant  denies  that  it  has  any  knowledge  or  information 
sufficient  to  form  a  belief  that  prior  to  the  12th  day  of  March,  iS83, 
negotiations,  as  alleged  in  the  complaint  or  otherwise,  were  opened 
and  carried  on  between  the  plaintiff  company  and  this  defendant,  or 
that  all  the  alleged  facts  in  the  premises  were  fully  or  at  all  consid- 
ered, or  that  the  amount  of  business  and  traffic,  present  and  pro- 
spective, of  the  plaintiff  company,  if  any,  its  current  earnings,  the 
amount  of  its  outstanding  mortgage  indebtedness,  the  loss,  if  any,  to 
the  defendant,  if  the  plaintiff  company  should  fall  under  the  control 
of  a  rival  line  or  lines,  or  the  alleged  fact  that  such  rival  lines  desired 
to  obtain  control  of  the  plaintiff  company's  road,  or  that  all  and 
singular  or  any  of  the  several  matters  aforesaid  were  fully  or  at  all 
discussed  or  considered  in  the  course  of  said  alleged  negotiation,  or 
that  in  view  of  the  alleged  character  and  permanency  of  the  relation 
alleged  to  be  contemplated  between  the  two  roads  or  otherwise,  it 
was  recognized  by  both  or  either  of  said  companies  that  it  would  be 
desirable  or  proper  that  the  defendant  should  directly  or  indirectly 
elect  the  directors  of  the  plaintiff  company  from  time  to  time,  or 
generally  control  the  management  of  the  plaintiff  company,  or  that 
this  defendant  considered  how  such  general  control  or  management 
could  be  lawfully  or  otherwise  secured  to  the  defendant. 

And  this  defendant,  on  its  information  and  belief,  alleges  that  all. 
the  matters  set  forth  in  said  fourth  paragraph,  beginning  with  the 
words  "  by  reason  of  the  relation,"  at  folio  sixth  thereof  down  to  and 
including  the  words  "lawfully  secured  to  the  defendant  company" 
at  folio  ninth  thereof,  are  immaterial  and  irrelevant  to  the  statement 

544  Volume  5. 


6398. 


CORPORA  TIONS. 


6398. 


of  plaintiff's  alleged  cause  of  action,  are  inadmissible  as  evidence, 
and  are  not  properly  pleaded  in  said  complaint. 

And  defendant  denies  that  as  the  result  of  the  said  alleged 
negotiations  and  inquiries,  or  with  a  view,  or  for  the  purpose  of 
establishing  permanent  or  any  business  or  other  relations  between 
the  plaintiff  company  and  this  defendant  or  otherwise,  the  said 
alleged  agreement  was  entered  into  by  the  plaintiff  copipany  and  this 
defendant,  as  alleged  in  said  complaint,  or  otherwise. 

And  this  defendant,  upon  its  information  and  belief,  alleges  that, 
at  or  about  the  same  time,  in  that  behalf  in  said  complaint  alleged, 
Hugh  J.  Jewett  then  being  the  president  of  the  defendant,  signed  a 
pretended  agreement  in  the  words  and  figures  set  forth  in  the  com- 
plaint,^  with  the  name  of  this  defendant,  and  A.  R.  Macdonough,  then 
being  the  secretary  of  the  defendant,  by  the  direction  of  said  Jewett^ 
assumed  to  affix  to  said  pretended  agreement  the  corporate  seal  of 


1.  The  agreement  referred  to  in  the  text 
was  as  follows:  "  This  agreement, 
made  this  tvielfth  day  of  March,  a.  d. 
l8<?^,  by  and  between  the  New  York, 
Lake  Erie  and  Western  Railroad  Com- 
pany, party  of  the  first  part,  and  the 
Bradford,  Eldred  and  Cuba  Railroad 
Company,  herein  called  the  Eldred  Com- 
pany, party  of  the  second  part,  wit- 
nesseth:  Whereas,  the  railroad  of  the 
Eldred  Company  extending  from  a  con- 
nection with  the  railroad  of  the  Erie 
Company  at  Wellsville  to  a  connection 
with  the  railroad  of  the  Bradford,  Bor- 
dell  and  Kinzna  Railroad  Company  at 
Eldred,  with  a  branch  extending  from 
its  Little  Genesee  station  to  a  further 
connection  with  the  railroad  of  the 
Erie  Company  at  Cuba,  has  been  con- 
structed by  parlies  in  sympathy  with 
the  Erie  Company,  with  a  view  of  con- 
tributing to  the  business  of  said  com- 
pany, and  of  protecting  it  against 
hostile  lines,  now  in  process  of  con- 
struction; And,  whereas,  said  Eldred 
Company  may  require  assistance  from 
the  Erie  Company  in  the  completion  of 
its  said  railioad,  and  in  its  successful 
establishment,  operation  and  mainte- 
nance. Now,  in  consideration  of  the 
premises,  it  is  agreed  as  follows: 

The  Eldred  Company  aigrcts:  First. — 
That  it  will  at  all  times  deliver  to  said 
Erie  Company,  for  transportation,  all 
the  freight  and  passengers  that  it  can 
lawfully  control  or  influence,  destined 
to  points  that  can  be  reached  by  way 
of  the  railroad  of  the  Erie  Company  or 
its  connections,  and  will  use  its  in- 
fluence to  promote  the  interests  and 
the  business  of  the  Erie  Company  so 
far  as  it  can,  with  proper  regard  for  its 
own  interests.     Second.  — That  for  the 


protection  of  the  Erie  Company  in  ren- 
dering assistance  to  iht  Eldred  Company 
under  this  contract,  it  will  cause  to  be 
deposited  with  the  Erie  Company  a 
majority  of  the  capital  stock  of  the 
Eldred  Company,  in  such  manner  as 
shall  be  required,  upon  which,  so  long 
as  the  management  of  the  Eldred  Com- 
pany shall  be  satisfactory  to  it.  the 
Erie  Company  will  give,  or  cause  to  be 
given,  to  such  representative  of  the 
Eldred  Company  as  shall  be  designated 
by  it,  the  right  to  vote  upon  the  stock 
so  deposited. 

The  ^V«V  Company  agrees:  First.— 
That  so  far  as  it  can,  with  a  proper 
regard  for  its  own  interests,  it  will  use 
its  influence  and  exercise  its  control  to 
promote  the  interests  and  the  business 
of  the  Eldred  Company.  Second.  — 
That,  upon  condition  that  the  corporate 
control  of  the  Eldred  Company  shall 
become  and  remain  vested  in  the  Erie 
Company,  as  above  provided,  the  Erie 
Company  will  make  good  any  deficien- 
cies in  the  net  earnings  of  the  Eldred 
Company  to  meet  the  interest  upon  its 
present  bonded  indebtedness,  from 
time  to  time,  as  the  same  becomes  due 
and  payable,  and  for  any  and  all 
advances  so  made  by  it,  with  interest 
thereon,  as  well  as  for  any  and  all 
advances  made  to  said  Eldred  Company 
by  the  Erie  Company  for  other  purposes, 
with  interest  thereon,  the  Erie  Company 
shall  have,  and  is  hereby  granted,  a 
first  lien  upon  the  railroad  franchises 
and  property  of  the  Eldred  Company 
next  after  its  bonded  indebtedness 
aforesaid,  and  a  first  charge  upon  its 
surplus  earnings  next  after  the  pay- 
ment of  the  accruing  interest  upon  its 
said  bonded  indebtedness.     This  coa- 


5  E.  of  F.  P.  — 35 


545 


Volume  5. 


6398.  CORPORATIONS.  6398. 

this  defendant,  and  to  attest  the  same  as  secretary  of  this  defendant; 
but  defendant  denies  that  said  Jewett  signed  the  same  as  president  of 
the  defendant  or  by  its  authority,  or  that  said  Macdonough  affixed 
said  seal  and  attested  the  same  as  secretary  of  the  defendant  or 
by  its  authority.  And  defendant  alleges  that  neither  this  defend- 
ant nor  its  board  of  directors  assumed,  or  did  in  fact  authorize  the 
execution  of  said  pretended  agreement,  and  the  same,  if  made  as 
above  set  forth,  was  not  made  by  this  defendant,  and  is  not  binding 
upon  it. 

And  defendant,  upon  its  information  and  belief,  alleges  that  neither 
the  plaintiff  company  nor  this  defendant  had  any  power,  corporate 
or  otherwise,  to  enter  into  said  pretended  agreement,  and  the  same, 
if  made  by  them  or  either  of  them,  as  alleged  in  the  complaint  or 
otherwise,  was  and  is  illegal  and  void. 

Third.  Denies  that  it  has  any  knowledge  or  information  sufficient 
to  form  a  belief  of  the  allegation  of  the  fifth  paragraph  of  said  com- 
plaint; that  the  said  plaintiff  company  has  duly  or  otherwise  per- 
formed all  and  singular,  or  any  of  the  acts  and  things  specified  in  the 
said  alleged  agreement  to  be  performed  by  said  plaintiff  company. 

And  this  defendant  denies  that  it  has  had  or  enjoyed  all  or  any  of 
the  benefits  and  advantages,  if  any  there  were,  which  this  defendant 
denies,  contemplated  and  provided  for  in  and  by  said  alleged  agree- 
ment, or  that  from  the  date  thereof  until  the  alleged  appointment  of 
a  receiver,  as  therein  mentioned,  this  defendant  has  had  the  general 
or  other  direction  and  control  of  the  plaintiff  company's  business  and 
affairs  or  of  the  income  and  earnings  of  its  road,  or  that  the  cor- 
porate control  of  the  plaintiff  company  did  become  and  remain 
vested  in  the  defendant,  as  alleged  to  be  contemplated  and  provided 
for  in  said  pretended  agreement,  or  continued  so  to  remain  until,  by 
the  alleged  wrongful  acts  and  breaches  of  said  alleged  agreement  by 
the  defendant,  as  therein  set  forth,  the  appointment  of  a  receiver  of 
the  plaintiff  company's  franchises  and  property  became  necessary,  if 
indeed  it  ever  did. 

And  defendant  denies  that  it  was  by  the  wrongful  acts  and 
breaches  of  said  alleged  agreement  by  this  defendant,  as  in  said 
complaint  alleged,  or  in  any  manner,  that  the  appointment  of  a 
receiver  of  the  said  plaintiff  company's  franchises  and  property 
became  necessary;  and  this  defendant  denies  that  it  has  any  knowl- 
edge or  information  sufficient  to  form  a  belief  that  such  appointment 
did  in  fact  ever  become  necessary. 

And  this  defendant,  upon  its  information  and  belief,  alleges  that 
if  any  of  the  acts  of  the  description  set  forth  in  said  sixth  paragraph 
were  attempted  to  be  performed  by  any  person  or  persons  then 
being  the  officer  or  officers  of  the  plaintiff  company  or  of  this 
defendant,  they  were  not  performed  by  such  person  or  persons  as 
such  officer  or  officers,  or  with  the  authority  of  either  said  plaintiff 
company  or  the  defendant,  and  were  and  are  not  the  acts  of  said 

tract  shall  continue  during  the  cor-  attested  the  day  and  year  first  above 
porate  existence  of  the  companies  written."  {Signatures  of  companies 
parties  hereto.  Witness  the  corporate  signed  by  the  presidents,  attested  by  the 
seals  of  the  parties  hereto  set  and  duly     secretaries,  and  corporate  seals  attached.) 

546  Volume  5. 


6398.  CORPORATIONS.  6398. 

companies,  or  either  of  them,  or  binding  upon  them,  or  either  of 
them. 

Fourth.  Denies  that  it  has  any  knowledge  or  information  suffi- 
cient to  form  a  belief  of  the  allegation  contained  in  the  sixth  para- 
graph of  said  complaint,  that  the  bonded  indebtedness  of  the  plaintiff 
company  therein  referred  to  was,  as  alleged  in  the  said  sixth  para- 
graph, or  that  the  amount  and  character  thereof  were  well  or  at  all 
known  to  the  defendant,  as  in  said  seventh  paragraph  alleged. 

Fifth.  Defendant  denies  that  it  has  any  knowledge  or  information 
sufficient  to  form  a  belief  that  prior  to  the  first  day  of  July^  i8^4i 
there  was  a  deficiency  in  the  net  earnings  of  the  plaintiff  company 
to  meet  the  interest  upon  its  said  alleged  bonded  debt,  or  that  such 
alleged  deficiency  amounted  to  the  sum  of  thirty-seven  thousand  dol- 
lars and  over,  or  any  sum  whatever,  and  defendant  denies  that  it 
provided  for  and  paid  said  deficiency  according  to  the  terms  of  said 
alleged  agreement  or  otherwise. 

And  defendant,  on  its  information  and  belief,  alleges  that  hereto- 
fore it  did  from  time  to  time  advance  various  sums  to  the  plaintiff 
company,  amounting  in  all  to  sixty-one  thousand  dollars;  but  defend- 
ant denies  that  the  same,  or  any  part  thereof,  were  advanced  under 
or  in  pursuance  of  the  terms  of  said  alleged  agreement. 

And  defendant  denies  that  it  has  any  knowledge  or  information 
sufficient  to  form  a  belief  whether,  at  the  times  when  the  semi- 
annual instalments  upon  the  bonds  mentioned  in  said  seventh  para- 
graph became  due  and  payable,  as  therein  alleged,  there  were 
deficiencies  in  the  net  earnings  of  the  plaintiff  company's  road  to  pay 
such  respective  instalments  of  interest  amounting  to  the  respective 
sums  therein  mentioned,  or  whether  the  defendant  company  was 
requested  to  pay  the  same,  or  whether  the  alleged  respective 
amounts  necessary  to  make  good  such  respective  alleged  deficien- 
cies, or  for  the  payment  of  such  respective  instalments  of  interest 
were  demanded  of  the  defendant;  and  defendant  denies  that  it  ever 
became,  or  was,  or  is  now,  the  duty  of  this  defendant  to  make  good 
said  alleged  deficiencies,  or  to  provide,  or  to  pay  over  to  the  plaintiff 
company  the  sums  mentioned  in  said  seventh  paragraph,  or  any 
sums  whatever. 

Sixth.  The  defendant  denies  that  it  has  any  knowledge  or  informa- 
tion sufficient  to  form  a  belief  whether  in  consequence  of  its  alleged 
breach  of  said  pretended  agreement,  the  plaintiff  company  was 
unable  to  pay  the  amount  alleged  to  be  due  for  interest  upon  its  said 
mortgage  bonds,  or  whether  in  consequence  of  such  nonpayment  the 
trustee  of  said  mortgage  did,  as  in  the  complaint  alleged,  commence 
an  action  in  this  court  against  the  plaintiff  company  for  the  fore- 
closure of  said  mortgage,  or  whether  in  said  action  the  plaintiff, 
Thomas  C.  Piatt,  was  appointed  receiver,  as  therein  alleged. 

And  defendant  denies  that  it  has  any  knowledge  or  information 
sufficient  to  form  a  belief  as  to  whether  said  trustee  is  ready  and 
willing  to  discontinue  the  said  alleged  action  for  foreclosure  upon 
payment  of  interest  so  alleged  to  be  due  as  aforesaid  and  since 
accrued,  and  thereupon  to  cause  the  said  railroad  to  be  restored  to 
the  possession  of  plaintiff  company,  or  whether,  upon  such  payment 

547  Volume  5. 


6398.  CORPORATJONS.  6398. 

and  restoration,  the  plaintiff  company  will  be  ready  and  willing  to  give 
and  restore  to  defendant  company  all  the  pretended  rights,  benefits 
and  advantages  contemplated  by  and  provided  for  in  said  agreement. 
And  defendant  denies  that  it  has  any  knowledge  or  information 
sufficient  to  form  a  belief  that  said  alleged  agreement  was  intended 
to  be,  or  is,  continuing  and  permanent,  or  that  the  due  performance 
and  execution  thereof  would  not  have  been  interrupted  but  for  the 
alleged  wrongful  conduct  of  this  defendant. 

Second. 
The  defendant,  further  answering  the  said  complaint,  for  a  second, 
separate  and  distinct  answer  and  defense  to  the  alleged  cause  of 
action  therein  set  forth,  repeats  the  allegations,  admissions  and 
denials  in  the  preceding  first  defense  contained,  and  alleges  that  the 
said  pretended  agreement,  if  made,  was  made  without  considera- 
tion to  this  defendant,  and  was,  and  is,  void  in  law. 

Third. 
For  a  third,  separate  and  distinct  answer  and  defense  to  the 
alleged  cause  of  action  set  forth  in  said  complaint,  this  defendant 
repeats  the  allegations,  admissions  and  denials  in  the  preceding  first 
and  second  defenses  contained,  and  on  its  information  and  belief 
alleges  that  said  alleged  agreement,  if  made,  was  made  by  this 
defendant  under  a  mistake  as  to  the  facts  in  connection  therewith; 
defendant  being  induced  thereto,  by  representations  made  by  said 
plaintiff  company,  or  its  officers  and  agents,  as  to  the  business  and 
traffic  of  said  plaintiff  company,  which  representations  were  not  true 
in  fact,  and  that  the  pretended  consideration  to  this  defendant,  if 
any  there  was,  for  making  said  alleged  agreement  has  failed  and 
become  of  no  value. 

Fourth. 

For  a  fourth,  separate  and  distinct  answer  and  defense  to  the 
alleged  cause  of  action  set  forth  in  the  complaint,  the  defendant 
repeats  the  allegations,  admissions  and  denials  in  the  preceding 
defenses  contained,  and  alleges  on  its  information  and  belief,  that  if 
it  is  true,  as  alleged  in  the  complaint,  that  on  or  about  t\\t  fourth  day 
of  February,  iS85,  or  at  any  time,  an  action  in  this  court,  wherein 
the  Metropolitan  Trust  Company,  of  the  city  of  New  York,  was  and  is 
plaintiff,  and  the  plaintiff  company  herein  was  defendant,  the  plain- 
tiff, Thomas  C.  Piatt,  was  duly  appointed  receiver  of  the  property 
and  franchises  of  the  plaintiff  company,  that  thereupon  by  reason  of 
such  appointment  the  said  property  and  franchises  and  the  corpo- 
rate control  of  said  plaintiff  company  become  and  are  now  vested  in 
said  receiver,  and  not  in  this  defendant,  as  contemplated  by  said 
alleged  agreement. 

Wherefore  defendant  demands  judgment  that  the  complaint  be 
dismissed,  with  costs. 

J.  A.  Buchanan  6^  Charles  Steele, 

Defendants'  Attorneys, 

21  Cortlandt  St.,  N.  V. 
{Vert f cation. y 

1.  Consult  the  title  Verifications. 

548  Volume  5. 


6399. 


CORPORA  TIONS. 


6399. 


b.  To  Foreclose  Mortgage.' 

ANSWER  OF  MINORITY   STOCKHOLDERS*   SETTING  UP  ILLEGAL 
CONSOLIDATION. 


Form  No.  6399. 
New  York  Supreme  Court,  County  of  Westchester^ 
The  Farmers'  Loan  and  Trust  Company, " 
as  trustee,  plaintiff, 
against 
The  New   York  and  Northern  Railway 
Company,  The  New  York  Loan  andim-  \ 
provement  Company,  and  The  Lincoln 
National  Bank  of  the  City  of  New  York, 
Artemas  H.  Holmes  and  Alfred  R.  Pick, 
defendants. 

The  defendant,  ^//><f^i?.  Pick,  on  behalf  of  himself  and  other  persons 
similarly  situated,  who  own  and  hold  preferred  and  common  stock  of 
the  New  York  and  Northern  Railway  Company,  appearing  by  Simon 
Sterne,  his  attorney,  and  the  defendant,  Artemas  H.  Holmes,  owner  and 
holder  of  stock  of  said  New  York  and  Northern  Railway  Company, 
appearing  by  Holmes  and  Adams,  his  attorneys,  unite  in  the  following 
answer,  and  jointly  allege  and  show  to  the  court  as  follows,  to  wit: 

Defense  No.  I. 
{Here  was  set  out  defense  number  one^ 


1.  For  forms    relating    to  foreclosure, 

generally,  consult  the  title  Foreclosure 
OF  Mortgages. 

2.  This  answer  is  copied  from  the  record 
in  the  case  of  the  Farmers'  L.  &  T. 
Co.  V.  New  York,  etc.,  R.  Co.,  150 
N.  Y.  410.  The  defenses  mentioned 
in  the  answer  were  to  an  action 
brought  to  foreclose  a  second  mortgage 
on  the  property  of  the  Northern  Com- 
pany given  to  plaintiff  as  trustee.  This 
mortgage  was  made  in  pursuance  of  an 
application  for  reorganization  by  the 
purchaser  of  the  Northern  Company. 
It  was  held  that  where  a  majority  of 
the  stock  of  a  corporation  owned  by 
another  corporation  and  the  latter  as- 
sumes control  of  the  business  affairs  of 
the  former  through  its  officers  and 
directors,  it  assumes  the  same  trust 
relation  toward  a  minority  of  stock- 
holders of  the  controlled  corporation 
that  a  corporation  itself  usually  bears 
to  its  stockholders,  and  that  the  right  of 
one  corporation  to  purchase  bonds  and 
stocks  of  another,  even  if  given  by 
statute,  confers  upon  the  purchaser  no 
right  to  employ  such  stock  and  bonds 
for  purposes  condemned  by  equity. 


For  formal  parts  of  answers,  generally, 
consult  the  titles  A.nswers  in  Code 
Pleading  and  Answers  in  Eql'itv;  of 
pleas,  generally,  consult  the  title 
Pleas. 

3.  Defense  Kiunber  One,  referred  to  in 
the  answer,  was  as  follows:  "  I.  That 
the  said  defendant.  Alfred  R.  Pick,  is 
the  owner  and  holder  of  record  of  one 
hundred  shares  of  preferred  capital 
stock  of  the  said  New  York  and  Northern 
Railway  Company,  and  appears  herein 
for  and  on  behalf  and  at  the  request 
of,  and  is  the  representative  of  the 
owners  and  holders  of  upwards  o{  fifteen 
thousand  shares  of  the  preferred  stock 
and  twenty-five  hundred  shares  of  the 
common  stock  of  the  said  New  York  and 
Northern  Railway  Company,  and  that 
the  said  defendant  Artemas  H.  Holmes 
is  the  owner  and  holder  of  record  of 
twelve  hundred  shares  of  the  common 
capital  stock  of  the  said  New  York  and 
Northern  Railway  Company. 

II.  That  these  defendants  admit  the 
allegations  contained  in  \.hc first,  second, 
third a^nA  fourth  subdivisions  of  the  com- 
plaint herein. 

III.  That   these   defendants  answer 


549 


Volume  5. 


6399. 


CORPORA  TIONS. 


6399. 


Defense  No.  II. 

V,  And  these  defendants,  for  a  further  and  separate  defense  to 
the  complaint  in  this  action,  repeating  the  allegations  hereinbefore 
contained,  show  that  the  defendant,  the  New  York  and  Northern 
Railway  Company,  organized  and  existing  under  the  laws  of  the  state 
of  Neui  York,  to  wit,  an  act  of  the  legislature  of  the  state  of  New 


the  allegations  contained  in  xhc  Jifth 
subdivision  of  the  complaint  herein  as 
follows: 

These  defendants  have  no  knowl- 
edge or  information  sufficient  to  form  a 
belief  whether  the  allegations  contained 
insaidyf/V/i  subdivision,  from  the  com- 
mencement thereof  to  the  words  "ag- 
gregating %i, 200,000"  correctly  state 
the  contents  and  description  contained 
in  the  mortgage  therein  referred  to,  and 
leave  the  plaintiff  to  make  proof  thereof 
at  the  trial  of  this  cause. 

As  to  the  remaining  allegations  in  the 
said  Jifth  subdivision  contained,  relat- 
ing to  property  acquired  subsequently 
to  the  making  of  the  said  mortgage, 
these  defendants  have  no  knowledge 
or  information  sufficient  to  form  a  belief 
whether  the  said  allegations  are  true, 
or  whether  the  property  so  acquired 
became  subject  to  the  lien  of  the  said 
mortgage,  and  therefore  deny  the  same. 

And  these  defendants  further  show 
on  information  and  belief,  that  the 
property  so  described  as  having  been 
subsequently  acquired  forms  a  part  of 
the  terminal  property  of  the  said  com- 
pany and  is  of  great  value.  That  a 
portion  of  the  consideration  paid  for 
the  said  property  was  money  derived 
from  the  operation  of  the  said  railroad. 
And  these  defendants  allege  and  charge 
that  the  application  of  such  moneys  to 
the  (payments  made  for  the  said  prop- 
erty, instead  of  applying  the  same 
under  the  terms  of  the  said  mortgage 
to  the  payment  of  the  coupon  maturing 
June  /,  189^,  was  in  violation  of  the 
provisions  contained  in  the  said  mort- 
gage, and  in  fraud  of  the  rights  of 
these  defendants  and  of  the  stock- 
holders of  the  said  company. 

And  as  to  the  allegations  contained 
in  the  subdivision  "  Va  "  of  the  com- 
plaint, these  defendants  have  no  knowl- 
edge or  information  sufficient  to  form  a 
belief  whether  the  said  allegations  are 
true  or  not,  and  therefore  deny  the 
same. 

IV  That  these  defendants  admit  the 
allegations  contained  in  the  sixth  and 
seventh  subdivisions  of  the  complaint, 
and  with  respect  to  all  the  matters  con- 


tained in  the  eighth  and  ninth  sub- 
divisions thereof,  these  defendants 
refer  the  court  to  the  said  mortgage, 
and  allege  that  the  articles  of  incor- 
poration of  the  said  N'ew  York  and 
Northern  Railway  Company  provide  that 
the  said  second  mortgage  shall  contain 
provisions  authorizing  and  empowering 
the  trustee  only  upon  written  request 
of  the  holders  of  $2,000,000  in  amount 
of  said  bonds,  to  take  proceedings  for  a 
foreclosure  of  the  mortgage  upon  any 
failure  to  pay  the  principal  debt  when 
due,  and  making  the  principal  debt  due 
upon  a  continuous  failure  for  twelve 
months  to  pay  the  interest  which  shall 
accrue  after  four  years  following  the 
date  of  the  bonds,  upon  any  instal- 
ment of  interest  on  the  said  bonds  after 
presentation  of  the  coupons  for  such 
interest  at  the  place  where  the  same 
are  made  payable  by  their  terms.  And 
these  defendants  further  allege  that 
the  said  second  mortgage  in  this  re- 
spect does  not  conform  to  the  articles 
of  incorporation  of  the  said  New  York 
and  Northern  Railway  Company  by 
which  its  execution  and  delivery  is 
authorized,  and  that,  therefore,  the  said 
second  mortgage  is  not  a  valid,  legal 
and  subsisting  obligation  of  the  said 
New  York  and  Northern  Railway  Com- 
pany. 

These  defendants  admit  the  allega- 
tions contained  in  the  tenth  subdivision 
of  the  complaint. 

And  these  defendants  have  no  knowl- 
edge or  information  sufficient  to  form  a 
belief  whether  the  allegations  con- 
tained in  the  eleventh  and  twelfth  sub- 
divisions of  the  complaint  are  true  or 
not,  and  therefore  deny  the  same. 

As  to  the  allegations  contained  in  the 
thirteenth  subdivision,  these  defendants 
deny,  on  information  and  belief,  that 
the  coupons  therein  referred  to,  or  the 
bonds  to  which  the  same  appertained, 
were  ever  presented  for  payment,  or 
that  any  such  demand  for  payment 
was  made  as  is  contemplated  and  pro- 
vided in  and  by  the  terms  of  the  said 
mortgage;  or  that  any  default  has  con- 
tinued for  more  than  twelve  months 
after  presentation   of    the  said   bonds 


550 


Volume  5. 


6399. 


CORPORA  TIONS. 


6399. 


York,  entitled  "An  Act  to  facilitate  the  reorganization  of  railroads 
sold  under  mortgage,  and  providing  for  the  formation  of  new  com- 
panies in  such  cases";  being  chapter  430,  Laws  of  1874,  passed  May 
II,  1874,  and  the  acts  amendatory  and  supplementary  thereof,  is  a 
railroad  corporation  owning  and  operating  a  line  of  railroad  extend- 
ing (^Here  was  set  out  description  of  line  of  railroad).^ 

That  it  also  owns  and  operates  a  branch  line  extending  from  Cort- 
landt  station,  on  its  said  main  line  to  Getty  square  "in  the  town  of 
Yonkers,  county  of  Westchester.  That  it  owns  valuable  terminals  and 
terminal  property  in  the  city  of  New  York;  that  it  owns  the  valua- 


and  coupons,  and  demand  of  payment 
thereof. 

These  defendants  have  no  knowledge 
or  information  sufficient  to  form  a  be- 
lief whether  the  allegations  contained 
in  the  fourteenth  subdivision  are  true  or 
not,  and  therefore  deny  the  same,  and 
further  allege  that  if  the  principal  of  all 
the  bonds  secured  by  said  second  mort- 
gage has  been  declared  due,  it  has  so 
been  declared  only  for  the  purpose  of 
furthering  the  conspiracy  hereinafter 
charged,  between  the  holders  of  the 
second-mortgage  bonds,  to  wit,  the 
said  New  York  Central  and  Hudson 
River  Railway  Company,  and  the  said 
defendant  the  New  York  atid  Northern 
Raihvay  Company,  and  in  furtherance 
of  the  unlawful  purpose  hereinafter  al- 
leged of  having  the  said  A^ew  York  and 
Northern  Railway  Company  absorbed 
by  the  New  York  Central  and  Hudson 
River  Railroad  Company,  and  to  de- 
prive defendant  railway  company  of 
the  power  to  pay  the  interest  by  the 
sale  of  such  property  as  it  may  reason- 
ably sell,  without  any  detriment  to  the 
security  of  the  bondholders  or  other 
lienors  of  said  N^ew  York  and  Northern 
Railway  Company,  and  without  detri- 
ment or  impairment  of  its  duty  to 
operate  and  maintain  said  railway. 

With  respect  to  the  allegations  of  the 
fifteenth  and  sixteenth  subdivisions  of 
the  said  complaint,  these  defendants  al- 
lege that  the  property  of  the  said  A^ew 
York  and  Northern  Railway  Company  is 
worth  much  more  than  the  sum  of  all 
the  obligations  of  the  said  defendant 
railway  company,  and  deny  that  the 
property  covered  by  said  second  mort- 
gage is  essentially  an  entirety,  and  that 
it  is  to  the  best  interest  of  all  con- 
cerned, that  all  of  the  said  property 
should  be  sold  in  one  parcel,  and  de- 
fendants deny  that  said  corporation  is 
insolvent,  but  allege  that  there  is  no 
necessity  for  the  sale  of  the  said  prop- 
erty of    the  New    York  and  Northern 


Railway  Company  in  one  parcel  for  the 
purpose  of  getting  sufficient  money  to 
pay  the  interest  accrued  upon  the  bonds 
secured  by  the  said  second  mortgage, 
so  to  be  foreclosed  herein,  and  further 
that  there  is  abundant  property  not  im- 
mediately necessary  for  railway  pur- 
poses, belonging  to  the  said  A'ew  York 
and  Northern  Railway  Company,  which 
can  be  sold  for  the  purpose  of  meeting 
the  interest  charge  past  due,  together 
with  the  interest  thereon  and  all  costs 
and  expenses  of  this  litigation.  These 
defendants  deny  that  a  sale  of  the  said 
property  in  any  other  way  than  in  one 
parcel  would  be  greatly  to  the  detri- 
ment and  injuriously  affect  parties  in- 
terested in  said  railway  company  and 
its  affairs,  and  allege  that  such  a  sale 
will  not  impair  or  otherwise  affect  the 
work  of  the  said  railway  company  in 
the  performance  of  its  duty  to  the  pub- 
lic, nor  injuriously  affect  the  earning 
capacity  of  said  railroad,  nor  impair  the 
security  of  the  said  second  mortgage. 

And  as  to  all  other  allegations  con- 
tained in  the  said  complaint,  which  are 
not  herein  admitted  or  denied  either  di- 
rectly or  on  information  and  belief, 
these  defendants  say  that  they  have  no 
knowledge  or  information  sufficient  to 
form  a  belief  whether  they  are  true  or 
not,  and  therefore  deny  the  same." 

1,  The  line  of  railroad  referred  to  in 
the  text  was  described  as  follows:  "Ex- 
tending from  One  Hundred  and  Fifty- 
fifth  street  in  the  city  and  county  of 
New  York,  at  a  point  of  connection,  or 
junction,  with  the  road  of  the  Manhat- 
tan Railway  Company,  running  thence 
northerly  and  westerly  across  the  Har- 
lem river  and  through  the  counties  of 
New  York,  Westchester  and  Putnam,  at 
or  near  Brewsters,  in  the  town  of  South 
East  in  the  county  of  Putnam  in  the 
state  of  New  York,  at  a  junction  with 
the  railroads  of  the  A'ew  York  and  New 
England  and  the  New  York  and  Harlem 
Railroad  Companies. " 


551 


Volume  5. 


6399.  CORPORATIONS.  6399. 

ble  bridge  built  over  and  extending  across  the  Harlem  river,  and 
other  valuable  bridges,  trestles  and  viaducts;  that  its  said  line  of 
railway  is  of  great  value,  and  is  of  great  public  utility,  convenience 
and  necessity;  that  it  lies  midway  between  and  parallel  to  the  lines 
of  railroad  of  the  New  York  and  Hudson  River  Railroad  Cotnpany 
and  the  New  York  and  Harlem  Railroad  Company,  which  latter  rail- 
road is  leased  to  the  New  York  Central  and  Hudson  River  Railroad 
Company,  and  both  are  under  the  same  management  and  control. 
That  the  main  line  of  the  defendant  railway  company  is  {giving 
length  of  line  of  road). ^  That  in  addition  to  said  lines  of  railway  the 
said  defendant  railway  company  owns  valuable  stations  and  depots 
along  its  line  of  railway  and  also  thirty-two  (32)  acres  of  terminal 
property  of  very  great  value  in  the  city  and  county  of  New  York, 
situated  upon,  at  and  under  the  Harlem  river,  and  that  it  also  owns 
a  large  amount  of  expensive  railway  equipment  and  supplies  neces- 
sary for  the  maintenance  and  operation  of  its  railway,  and  that  with 
a  single  exception,  to  wit,  the  railroad  system  owned  and  controlled 
by  the  said  New  York  Central  and  Hudson  River  Railroad  Company 
and  its  allied  corporations,  it  is  the  only  railway  company  having  an 
entrance  by  rail  into  the  city  of  New  York,  and  that  the  said  entrance 
by  rail  into  the  city  of  New  York  is  of  very  great,  peculiar  and 
increasing  value  to  itself  and  as  an  inducement  to  other  railway  cor- 
porations to  enter  into  contracts  with  it  for  the  use  of  its  road. 

These  defendants  further  show,  and  refer  the  court  to  the  recitals 
of  the  said  second  mortgage  mentioned  in  the  complaint  herein, 
that  prior  to  the  year  i8^7  the  said  railroad  and  property,  the  subject 
of  this  action,  was  owned  and  operated  by  a  railroad  corporation 
oganized  and  existing  under  the  laws  of  the  state  of  New  York, 
called  the  New  York  City  and  Northern  Railroad  Company.  That  by 
reason  of  improvident  financial  operations  and  management  upon 
the  part  of  said  last  named  corporation,  the  said  New  York  City  and 
Northern  Railroad  Company,  about  the  year  i2,82,  became  involved 
and  unable  to  pay  the  interest  charges  upon  certain  mortgages  upon 
its  said  railroad  and  property.  That  thereafter  certain  proceedings 
were  commenced  and  had  in  the  Supreme  Court  of  the  state  of  New 
York  for  the  foreclosure  of  the  said  mortgages,  and  actions  were 
brought  against  said  last  named  corporation  by  various  creditors, 
more  particularly  the  New  York  Loan  and  Improvement  Compatiy,  one 
of  the  defendants  herein.  That  pending  said  proceedings,  a  certain 
plan  for  the  reorganization  of  the  said  Neiv  York  City  and  Northern 
Railroad  Company  was  entered  into  and  adopted  under  and  pursuant 
to  the  laws  of  the  state  of  Neu^  York  hereinbefore  mentioned,  by 
the  owners  and  holders  of  the  bonds  issued  under  the  said  mortgages 
of  the  New  York  City  and  Northern  Railroad  Company,  which   plan 

1.  Length  of  road   referred  to  in   the  all    sixty-one    and    twenty-one    one-hun- 

text  was   as  follows:   "Fifty-four  and  a'r^a'Mj  ?6l.2l)  miles,  with  second  track 

six   one-hundredths   (54.06)    miles,    that  and  sidings  of  twenty -three  and  ninety- 

the    Yonkers   branch    is   three   and    ten  seven  one-hundredths  (23.97)  miles,  mak* 

one-hundredths    (3. 10)    miles;     that    the  ing  a  total   mileage  of   eighty-five  and 

Mahopac  Falls  branch  is  four  and  five  eig-hteen  one-hundredths  {S$. 18)  miles." 
one-hundredths    (4.05)    miles,    being    in 

053  Volume  5. 


6399.  CORPORATIONS.  6399. 

was  accepted  by  the  stockholders  of  the  said  Ntiv  York  City  and 
Northern  Railroad  Company^  or  some  of  them,  and  which  plan,  and 
the  details  of  which,  are  set  forth  in  the  articles  of  incorporation  of 
the  defendant  railway  company  and  in  the  mortgage  to  the  Farmers' 
Loan  and  Trust  Company,  dated  October  i,  i8<?7,  and  referred  to  in 
the  complaint  herein.  That  the  said  plan,  among  other  things,  pro- 
vided for  the  formation  of  a  new  corporation,  to  be  called  the  Ne^v 
York  and  Northern  Railway  Company,  which  said  new  company  was 
to  obtain  and  operate  the  said  railroad  and  property;  that  the  said 
new  company  was  to  create  and  issue,  and  did  create  and  issue, 
under  the  said  reorganization  securities  as  follows:  {^H ere  were  enu- 
merated securities. Y 

That  the  said  first-mortgage  bonds  were  to  be  sold  and  were  sold 
for  cash  at  par,  the  proceeds  being  intended  to  be  applied  and  were 
applied  as  in  said  plan  set  forth. 

That  the  said  second-mortgage  bonds  were  issued  to  the  former 
bondholders  of  the  said  Ne7v  York  City  and  Northern  Railroad  Com- 
pany at  and  after  the  rate  of  seventy-Jive  per  cent,  of  the  par  value  of 
the  said  former  bonds,  to  the  amount  of  ^,772J50\  that  the  remain- 
der thereof  were  issued  as  in  said  plan  set  forth. 

That  the  preferred  stock  was  issued  to  the  said  former  bondhold- 
ers for  the  balance  of  their  holdings  and  as  in  said  plan  set  forth. 

That  the  common  stock  was  issued  to  the  holders  of  the  former 
stock  of  the  New  York  City  and  Northern  Railroad  Company,  share 
for  share,  upon  the  payment  of  the  sum  of  ten  dollars  per  share. 

That  by  the  terms  of  said  second  mortgage  it  was  provided  that 
the  first  eight  coupons  attached  to  the  bonds  issued  thereunder 
should  be  payable  only  from  net  earnings  of  the  company  as  defined 
in  the  said  mortgage;  and  that  the  first  coupon,  the  payment  of 
which  was  obligatory  on  the  new  company,  was  the  coupon  maturing 
on  the  first  day  oi  June,  \W2. 

And  these  defendants  further  show  that  it  was  also  provided  in 
the  said  mortgage  that  the  income,  tolls,  profits,  benefits  and  advan- 
tages pertaining  to,  or  to  arise  or  accrue  from,  the  said  railway  and 
railways  and  property,  and  the  maintenance  and  operation  thereof, 
should  become  part  of  the  security  for  the  payment  of  the  said  bonds 
and  of  the  coupons  thereto  appertaining.  That  for  the  purpose  of 
determining  the  proper  application  of  the  earnings  of  the  said  com- 
pany, the  said  mortgage  contains  a  specification  of  the  proper 
charges  to  be  made  against  the  gross  earnings  of  the  company,  and 
that  such  specification  declares  that  such  charges  shall  include  the 
general  expenses  actually  incurred  in  operating  the  railroads  and 
works  of  the  defendant  railway  company,  and  keeping  the  same  and 
its  rolling  stock,  equipments  and  appurtenances  in  good  condition 

1.  Enumeration  of   reorganization    m-  bonds,  payable/cr/y  years  from  date,  to 

enrities  mentioned  in  the  text  were  as  the  amount  of  ^/..'oo.ooo,  with  interest, 

follows:   "  First-mortgage  gold   bonds,  at  the  rate  of /<?«r  per  cent,  per  annum, 

to  the  amount  of   %i. 200,000,  payable  said   mortgage   being  dated   October  /, 

forty  years   from    their   date,  with   in-  i8.Sy.     Preferred   capital    stock   to  the 

terest  at   the  rate  of  five  per  cent,  per  amount  of  $6,000,000,  common   capital 

annum,   said   mortgage    being    dated  stock  to  the  amount  of  $^,000,000." 
October  I,  \^8y.     Second-mortgage  gold 

558  Volume  5. 


6399.  CORPORATIONS.  6399. 

and  repair,  the  annual  taxes,  assessments  and  expenses  of  keeping 
up  the  organization  of  the  defendant  railway  company,  the  sum  of 
sixty  thousand  dollars  {$60,000)  for  the  annual  interest  charges  upon 
the  first-mortgage  bonds. 

And  these  defendants  further  show  that  in  the  said  second  mort- 
gage it  was  provided  that  the  trustee  thereof,  upon  default  of  the 
payment  of  the  principal  or  the  interest  of  said  bonds  thereby 
secured,  or  any  part  of  said  principal  or  interest,  when  by  the  terms 
thereof  the  said  principal  or  the  said  interest  may  become  due  and 
payable,  shall  not  proceed  against  the  defendant  railway  company 
by  reason  of  such  default  as  in  said  mortgage  provided,  except  upon 
the  written  request  of  the  holders  of  $2,000,000  in  amount  of  said 
bonds  then  outstanding  and  unpaid  or  unredeemed,  it  being  intended 
by  said  provision  and  provisions  that  the  defendant  railway  company 
shall  not  be  harassed  by  litigation  or  the  said  mortgage  foreclosed, 
except  in  good  faith  and  by  all  or  nearly  all  the  owners  of  said 
second-mortgage  bonds,  who  may  have  purchased  the  same  for  pur- 
poses of  investment  and  income. 

And  these  defendants  further  allege  that  it  was  a  strong  inducing 
element  and  part  of  the  consideration  by  which  the  acquiescence  of 
the  then  bond  and  stock  holders  to  the  plan  and  reorganization  was 
obtained,  and  it  was  the  understanding  and  expectation  upon  which 
the  said  plan  and  reorganization  was  finally  adopted,  that  the  pecu- 
liar value  of  the  property  of  the  JVew  York  City  and  Northerti  Rail- 
way Company,  together  with  its  commanding  position  for  terminal 
purposes  for  the  city  of  New  York,  was  such  that  it  was  reasonable 
to  expect  that,  taking  into  consideration  the  growing  commerce  and 
constantly  increasing  population  of  the  city,  its  property  and  such 
commanding  position  would,  within  the  near  future,  make  it  of  great 
value  to  roads  seeking  entrance  to  the  city  of  New  York  in  compe- 
tition with  the  lines  now  operated  by  the  New  York  Central  and 
Hudson  River  Railroad  Company,  and  that  such  constantly  increasing 
traflfic  and  population  would  ultimately  make  valuable  all  the  secu- 
rities and  stock  provided  for  in  the  plan  of  reorganization,  and  that, 
therefore,  said  plan  and  reorganization  was  adopted  so  as  to  save  to 
the  then  existing  stockholders  the  equities  and  values  represented 
by  their  stock.  And  defendants  allege  that  about  the  time  when  the 
conspiracy  and  practices  were  devised  to  absorb  the  said  defendant 
railway  by  the  New  York  Central  and  Hudson  River  Railroad  Com- 
pany, such  expectations  were  rapidly  being  realized  in  the  increasing 
values  of  such  property  of  the  defendant. 

VI.  These  defendants  further  show  that  heretofore,  and  through 
and  immediately  upon  and  after  the  reorganization  of  the  defendant 
railway  company  about  the  year  i%87,  the  Ne7t>  York  Loan  and 
Improvement  Company,  one  of  the  defendants  in  this  action,  acquired 
and  became  the  owners  of  a  large  amount  of  the  said  second-mort- 
gage bonds,  and  of  the  preferred  and  common  stock  of  the  present 
corporation.  That  ever  since  the  formation  and  organization  of  the 
present  corporation,  and  continuously  thereafter,  and  until  after  the 
last  annual  meeting  of  the  said  Neiv  York  and  Northern  Railway 
Company  in  October,  i892,  and  thereafter,  the  said  loan  and  Improve- 

554  Volume  5. 


6399.  CORPORATIONS.  6399. 

ment  Company  0'V!V\td  or  controlled  a  majority  of  the  second-mortgage 
bonds  and  of  the  preferred  and  common  stock  of  the  said  defendant 
railroad  company.  That  at  the  annual  meeting  of  the  stockholders 
of  said  defendant  railway  company  held  in  October,  iS88,  and  at 
every  subsequent  annual  meeting  of  the  said  stockholders,  the  said 
Loan  and  Improvement  Company,  by  its  ownership  of  a  majority  of 
the  common  and  preferred  stock  of  the  said  defendant  railway  com- 
pany, controlled  absolutely  the  said  railway  corporation,  and  by 
means  of  said  control  elected  directors  and  officers  of  said  defendant 
railway  company  who  represented  the  interests  of  it,  the  said  Loan 
and  Improvement  Company. 

That  at  the  annual  meeting  of  the  stockholders  of  the  defendant 
railway  company  held  in  October,  iS92,  the  following  persons  were 
elected  directors:  (^Here  were  listed  names  of  directors/) 

That  of  the  said  directors  Messrs.  Barney,  Belden,  Billings,  Dimock 
and  Whitney  were  directors  of  the  said  Loan  and  Improvement  Com- 
pany; and  of  the  other  directors  all  except  Messrs.  Coppell,  Hayes 
and  Mertens  were  stockholders  of  and  interested  in  the  said  Loan 
and  Improvement  Company,  and  this  defendant  further  shows  that  the 
said  board  of  directors  (acting  under  the  control  and  direction  of 
the  said  Loan  and  Improvement  Company,  and  well  knowing  that  in 
the  event  of  a  failure  to  pay  the  coupons  of  the  said  second-mort- 
gage bonds,  which  would  mature  after  \.\it.  first  day  of  December,  iS9J, 
the  said  Loan  and  Improz'ement  Company  vfould  control  the  foreclosure 
of  the  mortgage  securing  the  same,  and  that  under  a  sale  by  reason  of 
such  foreclosure  they  could  acquire  title  to  all  of  the  said  mortgaged 
premises  for  the  benefit  of  themselves,  and  to  the  exclusion  of  the 
minority  holders  of  the  preferred  and  common  stock)  failed  and 
neglected  to  apply  the  net  earnings  of  the  said  railway  in  accordance 
with  the  provisions  and  agreements  contained  in  the  said  mortgage. 

And  these  defendants  further  allege  that  instead  of  using  the 
moneys  earned  during  the  years  iS91  and  i893  for  the  purposes  of 
paying  the  coupons  which  accrued,  and  default  on  the  payment  of 
which  is  sought  to  justify  the  proceedings  herein,  the  board  of  di- 
rectors of  the  said  railway  company,  for  the  purpose  of  furthering  the 
sale  of  said  property  in  their  own  interest  as  herein  set  forth,  and  to 
enable  the  said  property  to  be  absorbed  and  acquired  by  some  other 
railroad  corporation,  failed  to  apply  the  said  money  for  such  pur- 
poses, but  applied  the  same  for  unnecessary  betterments  and  im- 
provements on  the  road,  so  as  to  increase  its  value  for  such  purposes 
and  to  the  detriment  of  these  defendants,  and  others  similarly  situated 
with  them. 

And  these  defendants  further  show  that  the  gross  earnings  of  the 
said  defendant  railway  company  amounted  to  the  following  sums  for 
the  following  fiscal  years,  ending  on  the  thirtieth  day  ol  June  of 
each  year  specified,  excepting  for  the  years  \%89  and  \9>90,  when  the 
said  fiscal  years  ended  on  the  thirtieth  day  of  September,  that  is  to 
say :     (^Bere  were  enumerated  the  earnings.  )^ 

1.  Enumeration  of  earningt  referred  to    June  jo,  ligi 483,326  00  (9  mos.) 

in  the  text  was  as  follows:  June  jo,  lig2 521,216  80 

"  September  JO,  i8<$'9.$567,2i2  62  

September 30,  \%qo..   536,76933  Total 12,108.67475" 

555  Volume  5. 


6399.  CORPORATIONS.  6399. 

That  the  fixed  charges  by  way  of  interest  on  the  first  mortgage 
during  the  said  four  years  amounted  to  ^JfifiOO.  That  a  large  part 
of  the  said  remaining  earnings  have,  by  the  acts  of  the  board  of  di- 
rectors of  the  said  defendant  railway  company,  been  applied  to 
purposes  other  than  the  operating  expenses,  taxes  and  necessary  bet- 
terments; and  that  the  application  of  such  earnings  to  such  other 
purposes  was  made  by  direction  of  the  said  board  for  the  purpose  of 
increasing  the  value  of  the  security  held  for  the  second-mortgage 
bonds  and  in  disregard  of  the  rights  and  interests  of  the  said  minority 
stockholders,  and  in  violation  of  the  terms  and  provisions  contained 
in  the  said  second  mortgage. 

And  these  defendants  allege  that  if  the  said  directors  had  complied 
with  the  terms  and  provisions  of  the  said  mortgage  the  said  earnings 
would  have  been  amply  sufficient  to  pay  the  said  coupon  maturing  on 
\}c\t  first  day  of  June,  i892,  amounting  to  $6^,000,  and  there  would  at 
present  be  no  defaulted  coupon  under  which  a  foreclosure  of  the  said 
property  could  be  had. 

And  this  defendant  further  alleges  and  charges  that  the  said  mis- 
application of  the  earnings  of  the  company  was  made  with  the  object 
and  intent  of  bringing  about  such  default  in  order  that  the  said  hold- 
ers of  the  majority  of  the  second-mortgage  bonds  and  of  the  preferred 
stock  and  of  the  common  stock,  would,  by  means  of  foreclosure,  de- 
stroy the  interests  of  the  minority  stockholders  and  thus  reorganize 
the  said  corporation  and  its  property  in  such  manner  as  to  secure  for 
themselves  the  entire  advantage  and  benefit  thereof. 

VII.  And  for  another  and  further  defense  to  the  complaint  herein, 
these  defendants  show  to  the  court  as  follows: 

Defense  No.  III. 

They  repeat  all  the  allegations  contained  in  the  defense  marked  / 
and  //,  and  further  show  that  on  or  about  the  twenty-eighth  day  of 
January,  iS93,  the  said  JVew  York  Loan  and  Improvement  Company, 
which  company  was  not  then  actively  engaged  in  the  prosecution  of 
its  business  and  the  alleged  objects  of  its  incorporation,  held  and 
had  in  its  corporate  name  the  majority  of  the  said  second-mortgage 
bonds  and  of  the  preferred  and  common  stock  of  the  defendant  rail- 
way company,  and  that  said  Loan  and  Improvement  Company  had  no 
other  function  except  as  holder  or  custodian  of  said  securities;  that 
S2i\(^  Loan  and  Improvement  Company,  as  is  hereinbefore  alleged,  was 
managed  by  essentially  the  same  persons  who  were  the  directors  of 
and  managed  the  defendant  railway  company;  that  these  said  per- 
sons, acting  in  their  own  behalf,  and  for  the  Loan  and  Improvement 
Company,  entered  into  negotiations  for  the  sale  of,  and  sold  to  the  firm 
of  Drexel,  Morgan  6^  Co.,  bankers,  doing  business  in  the  city  of  New 
York,  or  toy^.  Pierpont  Morgan,  a  member  of  said  firm,  the  said 
securities,  and  promised  and  agreed  to  transfer  to  said  Morgan,  or  to 
such  railway  corporation  as  he  might  designate,  the  control  and 
management  of  said  defendant  railway  company  and  of  its  railway 
and  property. 

That  said  Morgan,  being  then  owner  and  holder  of  said  securities, 
and  being  also  a  director  of  \k\t,New  York  Central  and  Hudson  River 

556  Volume  5. 


6399.  CORPORATIONS.  6399. 

Railroad,  entered  into  negotiations  with  the  New  York  Central  and 
Hudson  River  Railroad  Company,  as  is  herein  shown,  a  rival,  parallel 
and  competing  railroad  to  the  defendant  railroad  company,  and  did, 
on  or  about  the  eighteenth  day  of  March,  \Z9S,  sell  to  saidAVrt/  York 
Central  and  Hudson  River  Railroad  Company,  or  its  agents  or  repre- 
sentatives, the  said  securities  (being  a  majority  of  the  said  second- 
mortgage  bonds  and  of  the  preferred  and  common  stock)  and  said 
control  and  management  of  the  defendant  railway  company,  and  of 
its  railway  and  property,  with  the  understanding  that  said  Morgan 
should  procure  the  resignation  of  the  old  board  of  directors  and  its 
officers  or  some  of  them,  so  as  to  enable  the  said  New  York  Central 
and  Hudson  River  Railroad  Company  to  control  the  board  of  directors 
of  said  defendant  railway  company,  and  to  manage  and  operate  in 
its  own  interest  the  said  railway  and  property,  with  a  view  to  its 
subsequent  lease  or  amalgamation  in  some  form. 

That  the  Ne7v  York  Central  and  Hudson  River  Railroad  Company  is 
a  corporation  organized  and  existing  under  the  laws  of  the  state  of 
New  York,  and  subject  to  all  of  the  laws  thereof,  and  is  a  parallel  and 
competing  road  with  the  said  defendant  railway,  t\i^  Neiv  York  and 
Northern  Railway  Company.  That  the  road  commonly  known  as  the 
Harlem  Railroad,  extending  from  the  city  of  New  York,  through 
Brewsters  to  Chatham  Four  Corners,  and  the  railroad  known  as  the 
Hudson  River  Railroad,  extending  from  the  city  of  New  York  through 
Yonkers  to  the  city  of  Albany,  are  parts  and  parcel  of  the  said  New 
York  Central  and  Hudson  River  Railroad  system.  That  the  said 
New  York  Central  and  Hudson  River  Railroad  Company  and  the  New 
York  and  New  Haven  Railroad  Company  (which  is  operated  over  the 
lines  of  the  Ne^v  York  Central  and  Hudson  River  Railroad  system  in 
the  city  of  New  York),  zndtheNew  York  and  Northern  Railway  Com- 
pany, are  the  only  steam  railroads  which  have  entrances  into,  by  rail 
and  terminal  properties  within,  the  limits  of  the  city  of  Ne7v  York. 

That  the  New  York  and  Northern  Railway  Company  intersects  the 
Harlem  Railroad  at  Brewsters,  and  there  connects  with  the  New  York 
and  Nnv  England  Railroad,  and  that  it  also  intersects,  by  means  of 
its  said  branch,  the  Hudson  River  Railroad dit  Yonkers;  and  that  the 
said  railroads,  in  respect  of  both  passengers  and  freight,  are  parallel 
and  competing  roads. 

And  these  defendants  further  show  that  thereupon,  having  acquired 
said  securities,  the  said  Ne7u  York  Central  and  Hudson  River  Railroad 
Company,  and  the  officers  and  directors  thereof,  began  openly  agitating 
and  promoting  a  lease  of  the  property,  franchises  and  privileges  of 
the  said  Neiv  York  and  Northern  Railway  Company  to  the  New  York 
Central  and  Hudson  River  Railroad  Company,  and,  by  the  exercise 
of  its  power  and  control  over  the  board  of  directors  of  the  defendant 
railway  company,  undertook  and  attempted  to  transfer,  by  means  of 
a  lease,  the  entire  property  of  the  New  York  and  Northern  Railway 
Company  to  the  said  New  York  Central  and  Hudson  River  Railroad 
Company.  That  by  the  terms  of  the  proposed  lease  it  was  agreed  that 
the  said  New  York  Central  and  Hudson  River  Railroad  Company  should 
forever  control  and  operate,  possess  and  enjoy,  the  entire  property 
of  the  %i\^New   York  and  Northern  Railway  Company,  and  that  in 

557  Volume  5- 


6399.  CORPORATIONS.  6399. 

consideration  thereof,  the  said  New  York  Central  and  Hudson  River 
Railroad  Company  should  only  either  directly  pay  or  guarantee  the 
payment  of  the  interest  of  a  certain  limited  amount  of  bonds  of  the 
said  New  York  and  Northern  Raihvay  Company  \  but  that  no  provision 
was  made  in  the  said  lease,  or  intended  to  be  made,  respecting  either 
the  said  preferred  or  common  stock,  so  that  the  making  of  the  said 
lease  would  have  effectually  and  completely  destroyed  the  value 
thereof. 

And  these  defendants  further  show  that  on  the  nineteenth  day  of  April, 
iS9S,  a  meeting  of  the  stockholders  of  the  Nerv  York  Central  and  Hudson 
River  Railroad  Company  was  held  at  the  city  of  Albatiy,  and  that  the 
avowed  object  of  the  said  meeting  was  to  approve  and  authorize  the 
acquirement  by  purchase  of  a  controlling  interest  in  the  stock  and 
bonds  of  the  New  York  and  Northern  Railway  Company ,  and  authorize 
the  making  of  a  lease  with  that  company,  or  a  company  which  was  to 
be  organized  in  its  stead,  of  its  railroad  and  property,  and  to  approve 
and  authorize  the  guarantee  under  such  lease  of  the  principal  and 
interest  oi  five  million  {^flOOfiOO)  dollars  in  ^^  lOO-yediV  gold  bonds 
of  the  lessor  company. 

And  these  defendants  further  show  that  they,  and  other  stock- 
holders of  the  New  York  and  Northern  Railway  Company,  openly 
opposed  the  proposed  lease  to  the  Ne7v  York  Central  and  Hudson 
River  Railroad  Company,  for  the  reason  that  such  lease  would  be 
destructive  of  their  interest,  and  because  it  was  a  direct  violation  of 
the  law  of  this  state,  which  prohibits  the  consolidation  or  leasing, 
one  to  another,  of  parallel  and  competing  railroads. 

These  defendants  further  show  that  thereupon  the  said  New  York 
Central  and  Hudson  River  Railroad  Company  did  not  carry  into  effect 
the  proposed  lease  of  the  Ne7v  York  and  Northern  Railway  property, 
but  instead  thereof,  and  before  the  commencement  of  this  action, 
with  the  purpose  and  intent  of  obtaining  the  exclusive  and  permanent . 
control  of  the  railway  property  of  the  said  defendant  railway  com- 
pany, the  said  New  York  Central  and  HudsoTi  River  Railroad  Company, 
in  order  still  further  to  acquire  and  hold  a  controlling  interest  of  the 
second-mortgage  bonds  so  as  to  accomplish  its  unlawful  and  improper 
purpose  through  a  foreclosure,  entered  into  a  certain  agreement  with 
the  then  holders  of  the  said  second-mortgage  bonds  of  the  said 
defendant  railway  company,  which  bonds  it  had  not  theretofore 
acquired  (whose  names  are  unknown  to  these  defendants),  whereby 
the  said  New  York  Central  and  Hudson  River  Railroad  Company  agreed 
to  buy,  and  the  other  parties  to  said  agreement  agreed  to  sell,  the 
said  second-mortgage  bonds  of  the  New  York  and  Northern  Railway 
Company  to  an  amount  in  the  aggregate  exceeding  <?«<?  million  one  hun- 
dred thousand  Ao\\2irs{%l,  100,000),  for  the  nominal  sum  oi  eight  hun- 
dred diO\\a.rs  (%800)  "per  one  thousand  doWdirs  (%1,000)  of  the  principal 
of  the  bonds  so  sold,  being  the  same  rate  paid  by  it  or  for  its  account 
for  such  of  said  bonds  as  it  had  theretofore  acquired. 

The  New  York  Central  and  Hudson  River  Railroad  Company  agreed 
upon  its  part  that  it  would  make  payment  for  the  bonds  so  purchased 
in  the  bonds  of  a  company  which,  at  the  time  of  their  issue,  should 
be  the  owner  of  the  railroad  and  property  of  the  said  Ne7v  York  and 

558  Volume  5. 


6399.  CORPORATIONS.  6399. 

Northern  Railway  Company,  and  that  the  total  amount  of  bonds  so  to  be 
issued  on  the  said  property  should  be  six  million  tivo  hundred  thousand 
dollars  (%6,200,00O),  bearing  interest  at  the  rate  oi  four  per  cent, 
per  annum,  payable  one  hundred  years  from  the  date  thereof,  secured 
by  the  property  now  covered  by  the  said  second  mortgage  of  October 
i,  18^7,  and  that  the  principal  and  interest  of  the  said  new  bonds 
should  be  guaranteed  by  the  said  New  York  Central  and  Hudson 
River  Railroad  Company,  and  should  be  in  form  approved  by  the  said 
firm  of  Drexel,  Morgan  &>  Co. 

And  this  defendant  charges  that  immediately  after  the  said  agree- 
ment was  made,  the  said  Drexel,  Morgan  ^  Co.  and  the  said  J.  Pier- 
pont  Morgan  agreed  that  they  would  use  the  bonds  so  sold  in  such 
manner  as  might  be  directed  by  the  said  New  York  Central  and 
Hudson  River  Railroad  Company. 

That  the  said  New  York  Central  and  Hudson  River  Railroad  Com- 
pany thereupon,  in  pursuance  of  their  design  and  object  to  obtain  the 
control  and  ownership  of  the  property  of  theiW?/'  York  and  Northern 
Railway  Company,  and  in  violation  of  the  statute  of  this  state  which 
forbids  the  consolidation,  merging  or  leasing,  one  to  the  other,  of 
parallel  and  competing  lines,  and  in  the  exercise  of  a  power  and  an 
expenditure  ultra  vires  of  said  iV>zf/  York  Central  and  Hudson  River 
Railroad  Company,  exercised  the  ownership  and  control  which  it  had 
acquired  under  the  said  agreement  oi  July  H,  iWS,  and  itself  directed 
or  instructed  the  said  firm  of  Drexel,  Morgan  &"  Co.  to  direct  the 
Farmers'  Loan  and  Trust  Company,  as  the  trustee  of  the  said  second 
mortgage,  to  institute  proceedings  for  the  foreclosure  of  the  said 
mortgage;  that  no  consent  of  the  railroad  commissioners  of  this 
state  has  been  given  to  the  consolidation  of  the  said  two  companies, 
or  to  the  leasing  of  one  to  the  other. 

VIII.  And  these  defendants  further  show  that  since  the  New  York 
Central  and  Hudson  River  Railroad  Company  acquired  the  said  securi- 
ties and  the  control  and  management  of  the  said  property  by  con- 
nivance, collusion  and  conspiracy  with  the  former  directors  of  the 
defendant  railway  company,  it  placed  in  the  management  of  the 
defendant  railway  company  its  own  officers  and  agents,  to  wit,  one 
E.  V.  W.  Rossiter,  the  treasurer  of  the  New  York  Central  and  Hudson 
River  Railroad  Company,  as  treasurer  of  the  defendant  railway  com- 
pany, and  one  John  Carstensen,  the  comptroller  of  said  New  York 
Central  and  Hudson  River  Railroad  Company,  as  auditor  of  the  defend- 
ant railway  company,  and  in  place  and  stead  of  some  of  the  former 
directors  of  the  defendant  railway  company,  who  had  resigned,  other 
directors  in  the  interest  of  and  under  the  dominion  of  the  said  New  York 
Central  and  Hudson  River  Railroad  Company  were  elected,  so  that 
efforts,  in  good  faith,  on  the  part  of  the  management  of  the  defend- 
ant railway  company  to  meet  its  obligations,  could  not  be  made,  and 
the  defaults  theretofore  nominally  made  could  not  be  repaired. 

And  these  defendants  further  show  that  they,  and  the  said  other 
minority  stockholders  whom  they  represent,  and  in  whose  behalf 
they  act,  purchase  and  hold  their  preferred  stock,  relying  upon  the 
great  and  appreciating  value  of  the  said  New  York  and  Northern 
Railway  Company's  property,  by  reason  of  its  independent  entrance 

569  Volume  5. 


6399.  CORPORATIONS.  6399. 

into  the  city  of  New  York  and  of  the  important  and  valuable  territory 
which  it  owns  and  serves.  That  he  and  they  also  relied,  and  had  the 
right  to  rely,  on  the  provision  of  law  which  protected  him  and  them, 
as  such  stockholders,  from  the  unlawful  attempt  of  parallel  and  com- 
peting railroads  to  acquire  or  control  the  said  property. 

IX.  And  for  another  and  further  defense  to  the  complaint  herein, 
these  defendants  show  to  the  court  as  follows: 

Defense  No.  IV, 

They  repeat  all  the  allegations  contained  in  the  previous  defenses 
herein,  and  further  show,  that  the  said  New  York  Central  and  Hudson 
River  Railroad  Company  in  so  acquiring  the  majority  of  the  said 
second-mortgage  bonds  of  the  defendant  railway  company,  for  the 
said  purpose  of  owning  and  controlling  the  railway  and  property  of 
the  said  defendant  railway  company,  acted  ultra  vires  of  it,  the  said 
Neiv  York  Central  and  Hudson  River  Railroad  Company;  that  in 
acquiring  said  bonds  for  said  purpose  at  a  great  discount  from  the 
real  value  thereof,  after  it  had  acquired  the  majority  of  the  said  pre- 
ferred and  common  stock,  it  acted  in  breach  of  trust  to  the  minority 
members  of  said  defendant  railway  company,  who  became  and  were 
associates  and  partners  with  it,  the  said  New  York  Central  and  Hud- 
son River  Railroad  Company,  in  the  said  business  of  owning  and 
operating  the  said  railway,  and  in  fraud  of  their  rights;  and  that  the 
said  New  York  Central  and  Hudson  River  Railroad  Company  may  not, 
in  equity,  so  use  and  employ  its  possession  and  ownership  of  said 
bonds  for  the  said  avowed  purpose  of  foreclosing  the  said  second 
mortgage,  and  depriving  the  said  defendants  and  the  other  minority 
stockholders  of  their  interest  in  the  said  railroad  and  property  of  the 
said  defendant  railway  company;  but  these  defendants  show  that  in 
so  acquiring  said  second-mortgage  bonds  under  their  real  value  and 
for  said  illegal  and  void  purposes,  the  said  New  York  Central  and 
Hudson  River  Railroad  Company  2t.c(\\x\ve6.  and  holds  the  said  bonds  in 
trust  for  the  said  defendant  railway  company  and  all  of  the  stock- 
holders thereof,  and  is  not  entitled  to  a  foreclosure,  but  is  entitled 
only  to  receive,  upon  a  dissolution  of  said  defendant  railway  com- 
pany, and  upon  an  accounting,  the  sums  actually  paid  by  it,  the  said 
Ne7t>  York  Central  and  Hudson  River  Railroad  Company  for  said  bonds, 
and  no  more. 

And  these  defendants  further  show  that  the  Farmers'  Loan  and 
Trust  Company,  as  trustee,  the  plaintiff  herein,  has  no  interest  in  the 
said  action  except  as  trustee  under  the  said  second  mortgage,  and 
as  representing  the  holders  of  the  said  second-mortgage  bonds,  which 
these  defendants  have  shown  and  allege  are  all,  or  nearly  all,  owned 
and  held  by  the  said  New  York  Central  and  Hudson  River  Railroad 
Company,  and  that  the  Farmers'  Loan  and  Trust  Company  has  com- 
menced and  is  prosecuting  this  action  only  at  the  request  of,  in 
behalf  of  and  as  representing  said  New  York  Central  and  Hudson  River 
Railroad  Company. 

And  these  defendants  further  allege  that  the  said  act  and  agree- 
ments between  the  New  York  Central  and  Hudson  River  Railroad 
Company  and  said  former  owners  of  the  said  second-mortgage  bonds, 

500  Volume  5. 


6399.  CORPORATIONS.  6399. 

and  the  said  firm  of  Drexel,  Morgan  &*  Co.  and  said  f.  Pierpont  Mor- 
gan, are  forbidden  by  law  and  are  void;  that  no  title  or  right  was 
acquired  by  the  New  York  Central  and  Hudson  River  Railroad  Com- 
pany in  and  to  the  said  bonds,  or  any  of  them;  that  the  direction 
given  to  the  Farmers'  Loan  and  Trust  Company  to  foreclose  the  said 
mortgage,  if  any  such  was  given,  was  a  direction  intended  to  accom- 
plish an  illegal  purpose,  and  is  therefore  void  and  of^no  effect,  and 
that  all  proceedings  instituted  in  pursuance  of  the  said  notice  and  on 
behalf  of  the  said  second-mortgage  bonds  are  contrary  to  law  and 
cannot  confer  upon  the  trustee  of  the  mortgage  the  right  to  relief 
which  it  prays  for  in  this  action. 

Defense  No.  V. 

X.  And  for  another  and  further  affirmative  defense  to  said  com- 
plaint these  defendants  repeat  and  reaffirm  the  allegations  herein- 
before contained,  and  further  allege  and  show  to  the  court  that  the 
affairs  and  business  of  the  said  New  York  and  Northern  Railroad 
Company  have  been  managed  for  a  long  time,  and  since  before  any 
default  in  the  payment  of  interest  on  the  bonds  in  question,  in  the 
interest  and  for  the  benefit  and  at  the  dictation  of  the  defendant  the 
New  York  Loan  and  Improvement  Company,  and  since  about  April, 
\W3,  by  and  in  the  interest  of  \.\\^  New  York  Central  and  Hudson 
River  Railroad  Company.  And  that  for  a  long  time  the  said  New  York 
and  Northern  Railway  Company  has  been  managed  without  any  regard 
for  the  interests  of  its  stockholders,  but  by  corporations  and  persons 
whose  interests,  by  reason  of  their  large  ownership  of  the  mortgage 
liens,  have  been  antagonistic  to  the  minority  stockholders  of  said 
defendant  railway  company.  That  since  some  time  prior  to  April, 
iS93,  the  managers  of  said  New  York  and  Northern  Railway  Company 
have  not  only  been  indifferent  to  the  rights  of  its  stockholders,  but 
have  had  a  direct  interest  opposed  to  said  stockholders  and  have 
zealously  and  persistently  sought  to  destroy  the  value  of  the  stock 
of  said  company.  That  its  officers  have  not  only  failed  to  take  any 
measures  to  save  its  property  and  defend  said  company  against 
annihilation,  but  have  been  the  willing  and  earnest  promoters  of  the 
plans  of  the  New  York  Central  and  Hudson  River  Railroad  Company  to 
absorb  its  property  without  compensation  to  its  stockholders,  and 
have,  moreover,  resented  and  denounced  the  efforts  of  these  defend- 
ants to  preserve  and  protect  the  property  and  existence  of  said  New 
York  and  Northern  Railway  Company.  That  since  the  said  New  York 
Central  and  Hudson  River  Railroad  Company  obtained,  as  aforesaid, 
the  control  and  domination  over  said  New  York  and  Northern  Rail- 
way Company,  there  has  been  no  officer,  manager  or  director  of  said 
New  York  and  Northern  Railway  Company -who  has  taken  any  interest 
in  its  protection  or  any  step  for  its  defense;  but  its  affairs  have  been 
administered  with  the  sole  object  and  purpose  of  facilitating,  as  much 
as  possible,  the  plans  of  said  Ne^v  York  Central  and  Hudson  River 
Railroad  Company,  for  the  absorption  of  its  property  and  termination, 
as  quickly  as  possible,  of  its  existence  as  an  active  and  rival  railroad 
corporation.  That  the  two  several  plans  for  such  absorption  of  its 
property  by  the  New  York  Central  and  Hudson  River  Railroad  Com- 
5  E.  of  F.  P. —36.  661  Volume  5. 


6399.  CORPORATIONS.  6399. 

pany  have  been  hereinbefore  set  forth.  That  neither  of  said  plans 
provides  for  any  compensation  to  the  stockholders  of  the  New  York 
and  Northern  Railway  Company.,  but  both  of  said  plans  were  devised 
and  intended  for  the  acquirement  of  said  property  without  payment 
or  recognition  of  any  kind  whatever  to  any  of  said  stockholders. 
That  by  reason  of  the  acts  and  control  of  said  New  York  Central  and 
Hudson  River  Railroad  Company  the  said  New  York  and  Northern  Rail- 
way Company  heca.me  a.nd  is,  as  to  its  own  protection,  inert  and  power- 
less. And  these  defendants  show  that  irrespective  of  the  foreclosure 
sought  herein  the  said  corporation  and  its  stockholders  will  be  with- 
out any  adequate  protection,  provided  the  said  company  shall  con- 
tinue to  be  managed  and  dominated  by  the  Nera  York  Central  and 
Hudson  River  Railroad  Company.  That  the  latter  company  is  a  rival 
and  competing  line  of  railway,  and  parallel  to  said  New  York  and 
Northern  Railway  Company.,  both  on  the  east  and  west,  with  its  two 
contiguous  lines  of  railroad,  to  wit,  the  Hudson  River  and  Harlem 
divisions.  That  by  reason  of  its  adverse  interests  the  said  New  York 
Central  and  Hudson  River  Railroad  Company,  even  if  defeated  in  this 
action  in  securing  the  property  of  said  New  York  and  Northern  Rail- 
way Company,  would  inevitably,  as  manager  and  in  control  of  the 
same,  discriminate  against  the  said  New  York  and  Northern  Railway 
Company,  and  manage  it  in  such  a  way  as  to  destroy  it  as  an  inde- 
pendent line,  and  prevent  it  from  successfully  carrying  on  its  business 
and  from  performing  its  duty  to  the  public.  That  such  management 
and  control  by  a  rival  corporation  owning  a  majority  of  the  stock  and 
bonds  in  its  own  interests,  and  in  hostility  to  the  interest  of  the 
said  New  York  and  Northern  Railway  Company,  is  unjust  and  inequi- 
table, and  is  against  public  policy.  That  the  property  and  franchises 
of  said  New  York  and  Northern  Railway  Company  are  of  great  and 
constantly  increasing  value,  and  that  the  said  railway,  if  properly  and 
prudently  managed,  is  able  to  meet  all  its  just  obligations  and  to  earn 
a  profit  for  its  stockholders;  but  that  such  prudent  and  profitable 
management  is  impossible  unless  the  control  of  said  company  and  its 
property  is  taken  out  of  the  hands  of  the  New  York  Central  and  Hud- 
son River  Railroad  Company.  And  these  defendants  further  say,  that 
they  and  their  associates,  minority  stockholders,  would  be  remedi- 
less, and  their  property  would  be  destroyed,  unless  the  foreclosure 
sought  herein  is  enjoined  and  restrained,  and  the  affairs  and  property 
of  said  defendant  corporation  placed  in  the  hands  of  a  receiver  wholly 
independent  from  such  control  or  influence,  who  shall  manage  and 
administer  the  same  equitably  and  justly,  under  the  direction  of  this 
court,  for  the  benefit  and  protection  of  the  stockholders,  as  well  as 
the  security  holders  of  the  said  New  York  and  Northern  Railway 
Company. 

Wherefore,  these  defendants  demand  that  the  complaint  herein  be 
dismissed,  with  costs,  and  that  they  may  have  such  other  affirmative 
and  additional  relief,  or  both,  as  the  court  may  deem  proper  in  the 
premises  and  as  may  be  just. 

Simon  Sterne, 
Attorney  for  Defendant  Alfred  R.  Pick. 
Office  and  Post-office  address, 

56  Beaver  Street,  New  York  City,  N.  Y. 
562  Volume  5. 


6400.  CORPORATIONS.  6400. 

Holmes  &>  Adams^ 
Attorneys  for  Artemas  H.  Holmes, 

one  of  the  Defendants  aforesaid, 

15  Broad  Street,  New  York. 
{Verification.y- 

e.  To  Recover  Subscription  to  Constituent  Corpoi^tion. 

PETITION    OF    AUTHORIZED    AGENT    OF    CONSOLIDATED    COMPANY. 

Form  No.  6400. 
(Precedent  in  Armstrong  v.  Karshner,  47  Ohio  St.  276.)* 

[The  State  of  Ohio,  )  j^  ^^^  ^^^^^  ^^  ^ 
Ross  County,  ss.       \  •' 

John  Karshner,  plaintiff,         1 

against  >  Petition. 

Milton  Armstrong,  defendant.]^  ) 

The  plaintiff,  John  Karshner,  says:  That  on  the  26th  day  of  April, 
A.  D.  1 8 77,  The  Cincinnati  and  Fayettanlle  Railroad  Company  was  duly 
incorporated  as  a  corporation  under  the  laws  of  Ohio,  for  the  purpose 
of  building  and  operating  a  railroad  from  the  city  of  Cincinnati,  in 
the  county  of  Hamilton,  through  the  counties  of  Hamilton,  Clermont 
and  Broivn,  to  the  village  of  Fayetteville,  in  said  last  named  county — 
all  in  this  state. 

That  the  capital  stock  of  said  company  was  %120,000,  divided 
into  two  thousand  four  hundred  shares  of  ^0  each ;  and  that,  shortly 
after  the  incorporation  of  said  company,  the  amount  of  such  capital 
stock  required  by  statute  for  the  purpose,  having  been  duly  sub- 
scribed and  paid,  said  company  duly  organized  by  electing  according 
to  law  a  board  of  directors,  who  duly  qualified  as  such. 

That  on  or  about  the  Slst  day  of  May,  a.  d.  \%T8,  said  company, 
a  large  amount  of  its  capital  stock,  to  wit,  more  than  twenty  per 
centum  of  its  authorized  capital  stock  in  bona  fide  subscriptions 
having  been  subscribed,  and  a  large  amount  of  money,  to  wit,  more 
than  ten  per  centum  of  its  authorized  capital  having  been  e.xpended 
by  it  in  the  construction  of  its  said  railroad,  duly  and  legally  changed 
the  eastern  terminus  of  said  railroad,  and  extended  the  line  of  the 
same  from  said  village  of  Fayetteinlle  eastward  through  the  counties 
of  Brown,  Clinton,  Highland,  Ross,  Hocking  and  Athens,  to  the  town 
of  Nelsonville  in  said  last  named  county — all  in  this  state. 

That,  afterwards,  on  the  9th  day  of  March,  a.  d.  }2>80,  the  name  of 
said  company  was,  by  proceedings  had  for  the  purpose  in  the  court 

1.  See  the  title  Verifications.  the  circuit  court  and  the  supreme  court. 

2.  Sabseqnent  Pleadingt  in  this  Case.  —  3.  The  words  in  [  ]  are  not  in  the  re- 
A  general  demurrer  to  this  petition  was  port  of  the  case,  but  have  been  added 
overruled  and   defendant  filed  an  an-  to  render  the  form  complete. 

swer  thereto,  which  is  set  out  in  full  in  For  the  formal  parts  of  complaints  and 
the  reported  case.  To  the  answer  oetit'ons,  generally,  consult  the  title 
plaintiff  demurred,  which  demurrer  Complai.nts,  vol.  4,  p.  1019;  of  bills  in 
was  sustained  in  the  court  of  common  equity,  generally,  consult  the  title  Bills 
pleas  and  this  ruling  affirmed  both  in     i.N  Equity,  vol.  3,  p.  417. 

563  Volume  5. 


6400.  CORPORATIONS.  6400. 

of  Common  Pleas  withirf  and  for  said  county  of  Brown,  duly  and 
legally  changed  to  The  Cincinnati,  Fayetteville,  Hillsboro  and  Hunting- 
ton Railway  Company,  and  that,  afterwards,  on  the  1th  day  of  March, 
A.  D.  \Z81,  the  name  of  said  company  was,  by  like  proceedings  in 
said  court  of  Common  Pleas  within  and  for  said  county  of  Brotvn, 
again  duly  and  legally  changed  from  The  Cincinnati,  Fayetteville, 
Hillsboro  and  Huntington  Railway  Company  to  the  Cificinnati,  Hocking 
Valley  and  Huntington  Railway  Company,  which  said  last  name  it  still 
retains. 

That,  on  or  about  the  IJ^th  day  of  October,  a.  d.  i^80,  the  Cincin- 
nati, Fayetteville,  Hillsboro  and  Huntington  Railway  Company  made  and 
entered  into  a  contract  in  writing  with  one  Henry  T.  Niles  under  the 
firm  name  and  style  of  Henry  T.  JViles  and  Company,  for  the  building 
and  completing  of  said  company's  line  of  railroad,  and  the  said 
Henry  T.  JViles  and  Company,  under  said  contract,  and  certain  con- 
tracts supplemental  thereto,  made  and  entered  into  between  said  firm 
and  said  railway  company  after  its  name  had  been  changed,  as  afore- 
said, to  the  Cincinnati,  Hocking  Valley  and  Huntington  Railway  Co7n- 
pany,  to  wit:  on  the  5th  day  of  September,  a.  d.  i8<?i,  and  the  19th  day 
of  December,  A.  D.  \^81,  respectively,  agreed  to  build  and  complete 
the  line  of  said  company's  railroad  from  its  junction  with  the  Cin- 
cifinati  and  Eastern  Railroad,  in  said  county  of  Clermont,  to  said  town 
of  Nelsonville,  in  said  county  of  Athens,  in  consideration  of  which 
among  other  things  said  railway  company  authorized  and  empowered 
said  Henry  T.  Niles  and  Company  to  procure  stock  subscriptions  and 
donations  to  and  for  said  company  to  the  amount  of  %5,000  per  mile 
for  all  that  part  of  its  said  line  of  railroad  between  the  Scioto  river 
in  said  county  of  Ross  and  said  town  of  Nelsonville,  in  said  county  of 
Athens,  and  to  collect,  hold,  have  and  use  the  same  as  their  own,  in 
and  about  the  construction  of  said  railroad. 

That  on  the day  of  October,  a.  d.  i8<?i,  the  defendant,  Mil- 
ton Armstrong,  for  the  purpose  of  aiding  in  the  construction  of  said 
railroad,  and  in  consideration  of  the  advantages  and  benefits  to  ac- 
crue to  him  therefrom,  and  especially  from  the  building  of  that  part 
of  said  railroad  from  the  Scioto  Valley  Railroad  in  said  county  of 
Ross  to  a  point  at  or  near  the  village  of  Adelphi,  in  said  county,  as 
well  as  in  consideration  of  like  subscriptions  and  agreements  by 
others  for  said  purpose,  became  a  subscriber  to  the  capital  stock  of 
the  Cincinnati,  Hocking  Valley  and  Huntington  Railway  Company  by 
executing  and  delivering  to  said  company  an  agreement  in  writing  in 
the  words  and  figures  following,  which  was  duly  accepted  by  it,  to 
wit:  (^Here  was  set  out  verbatim  copy  of  agreement. y- 

1.  The  agreement   referred  to   in   the  of  said  company;   but  it  is  expressly 

text  was  substantially  as  follows:  "We,  provided   as    follows:    that  no  part  of 

the  undersigned,  agree  to  pay  the  num-  said  subscription  shall  be  due  until  a 

ber  of  shares  annexed  to  our  respective  railroad  track  shall  be  laid  ready  for 

names,  of  yf/ify  dollars  each,  to  the  capi-  the  running  of  cars  from  some  point  on 

tal  stock  of  the  Cincinnati,  Hocking  Val-  the  Scioto  Valley  Railroad  to  a  point  at 

ley   and  Huntington  Railway   Company,  or  near  Adelphi,   in  Ross   county,   and 

and    we    hereby    bind    ourselves,    our  when  said  railroad  track  is  so  laid,  we, 

heirs,  executors  or   administrators    to  the  undersigned,   mutually  agree  that 

pay  the  same  to  the  authorized  agent  we    will    each,   on    demand,    pay    the 

564  Volume  5. 


6400.  CORPORATIONS.  6400. 

That  said  defendant  thereby  agreed  to  take  ten  shares  of  the  capi- 
tal stock  of  the  Cincinnati,  Hocking  Valley  and  Huntington  Railway 
Company,  each  share  being  of  the  par  value  of  $50,  and  agreed  to  pay 
therefor  the  sum  of  %500  to  the  authorized  agent  of  said  company  on 
demand,  so  soon  as  a  railroad  track  should  be  laid  ready  for  the  run- 
ning of  cars  from  some  point  on  said  Scioto  Valley  Railroad  to  a  point 
at  or  near  the  village  of  Adelphi,  in  said  county  of  ^^j.t,  provided  said 
railroad  should  be  built  north  of  said  village  oi  Adelphi. 

That,  afterwards,  on  or  about  the  20th  day  of  October,  iS82,  the 
said  Henry  T.  Niles  and  Company,  who  had  in  compliance  with  the 
terms  of  their  said  contracts  with  said  railway  company,  and  in  con- 
sideration of  said  subscription  of  said  defendant,  and  induced  thereby, 
partly  built  a  portion  of  the  railroad  of  said  company,  including  a  part 
thereof  between  the  village  of  Kingston,  in  said  county  of  Ross,  situate 
on  the  said  Scioto  Valley  Railroad,  and  said  village  of  Adelphi,  and  were 
still  engaged  in  the  construction  of  the  same,  made  and  entered  into 
a  contract  in  writing  with  the  plaintiff,  which  was  duly  approved  by 
the  Cincinnati,  Hocking  Valley  and  Huntington  Railway  Company,  under 
and  by  virtue  of  which  he,  the  said  plaintiff,  agreed  to  build  and  com- 
plete that  portion  of  the  railroad  of  said  company  from  said  village 
of  Kingston,  at  and  on  said  Scioto  Valley  Railroad  to  said  village  of 
Adelphi,  on  the  west  side  of  the  Circletnlle  and  Adelphi  turnpike,  and, 
also,  agreed  conditionally,  to  build  that  portion  of  said  railroad  of 
said  company  between  said  last  named  point  and  Daniel  Davis's,  at 
or  near  the  mouth  oi  Big  Pine  creek,  in  said  county  of  Hocking,  upon 
certain  terms  and  conditions  in  said  contract  set  forth,  in  considera- 
tion of  which  among  other  things,  the  said  Henry  T.  Niles  and  Com- 
pany, with  the  approval  and  assent  of  said  railroad  company  duly 
given,  agreed  to  assign  and  transfer,  and  did  duly  assign  and  transfer 
to  him,  the  said  plaintiff,  all  stock  subscriptions  and  subscriptions  for 
donations  held  and  acquired  by  them  under  their  said  contracts  with 
said  railway  company,  including  said  subscription  of  said  defendant, 
from  the  city  of  Chillicothe,  in  said  county  of  Ross  to  said  Daniel 
Davis's. 

That  he,  the  said  plaintiff,  under  his  said  contract,  which  he  was 
induced  to  make  by  said  subscription  of  said  defendant,  and  like  sub- 
scriptions of  other  persons,  built  that  part  of  said  railroad  between 
said  village  of  Kingston,  at  and  on  said  Scioto  Valley  Railroad,  and 
said  village  of  Adelphi;  and  that  the  last  rail  on  that  part  of  said  rail- 
road and  of  the  track  thereof  between  said  points  was  laid  on  the  28th 
day  oi  September,  iS85,  and  said  part  of  said  railroad  was  then  ready 
for  the  running  of  cars  thereon;  and  that  since  the  2Jst  day  of  De- 
cember, iS85,  he,  the  said  plaintiff,  has  been  operating  said  part  of 
said  railroad  by  running  trains  for  carrying  both  freight  and  passen- 
gers over  the  same  between  said  village  of  Kingston,  at  said  Scioto 
Valley  Railroad,  and  said  village  of  Adelphi. 

amount    set    opposite    our    respective     the  within  stock  subscriptions  are  bind- 
names,  to  such  authorized  agent  of  said     ing  providing  the  road  is  built  on  the 
company,    in    full    payment   for    such     north   of  Adelphi,   otherwise    they  are 
shares  of  capital  stock.  *  *  *  It  is  dis-     void.  *  *  *." 
tinctly  agreed  and  understood  that  all 

865  Volume  5. 


640 1 .  CORPORA  TIONS.  640 1 . 

That  said  railroad  was  built  north  of  said  village  of  Adelphi,  as  men- 
tioned in,  and  required  by  the  subscription  agreement  of  said  defend- 
ant, and  all  conditions  in  said  subscription  agreement  have  been 
fully  performed  by  said  railway  company,  and  by  him,  the  said 
plaintiff. 

That  the  full  amount  of  said  subscription  of  said  defendant  became 
and  was  due  and  payable  to  the  plaintiff,  from  him,  when  said  rail- 
road track  was  laid  ready  for  the  running  of  cars  thereon,  from  said 
village  of  Kingston,  at  and  upon  said  Scioto  Valley  Railroad,  to  said 
village  oi  Adelphi,  to  wit,  on  said  28th  day  of  September,  iS85,  but  no 
part  of  said  sum  has  been  paid  by  said  defendant,  although  the  plain- 
tiff at  or  about  that  time  demanded  payment  of  the  same;  and  he, 
the  said  defendant,  has  since  been  requested  by  the  plaintiff  to  pay 
the  same. 

That  said  railway  company  and  the  plaintiff  were,  at  said  time,  and 
have  been  at  all  times  since,  ready  and  willing,  and  still  are  ready 
and  willing,  to  issue  and  deliver  to  said  defendant,  upon  the  payment 
of  said  subscription,  certificates  of  stock  in  said  company,  for  the 
number  of  shares  so  subscribed  for  by  said  defendant,  and  have  re- 
peatedly offered  to  deliver  such  certificates  to  him. 

Wherefore  the  plaintiff  asks  judgment  against  the  defendant  for 
the  sum  of  $500,  with  interest  thereon  from  the  28tA  day  of  Septem- 
ber, iS85. 

John  Karshner. 

(  Verification,  y- 

2.  Proceeding's  agrainst.^ 

1.  Consult  the  title  Verifications.         way  Company  hereinabove  complained 

2.  Proceedings  by  and  against  corpora-     of." 

tions,    generally,    see    supra,    note     i,  An  allegation   that   certain    railroad 

p.  527.  companies   were  by  law  authorized   to 

Sufficiency  of  Averment  of  Consolida-  consolidate  and   did    consolidate    and 

tion.  —  In    Zealy   v.    Birmingham    R.,  become  one   corporation    is   sufficient, 

etc.,  Co.,  99  Ala.  579,   the  allegations  without  alleging  the   various  steps  of 

as   to   consolidation   of   the   defendant  such  consolidation.   Collins  r.  Chicago, 

corporation  were   held  to  be  sufficient,  etc.,  R.  Co.,  14  Wis.  492. 

The  allegations  were  as  follows:    "The  A  complaint  alleging  that  defendant 

plaintiff  claims  of  the  defendant,  a  cor-  "  purchased  and  had  assigned  to  itself 

poration  organized  under  the  laws  of  the   railroad,    franchises,    immunities, 

Alabama,  by  the  consolidation   on,  to  stock,  bonds,  and  all  property  and  ap- 

wit,  the  fifth   day  of  May,    1890,  with  purtenances "    of     another     company, 

the  Birmingham    Union   Railway  Com-  shows  merely  a  succession,  and  not  a 

pany,    the    Birmingham    and   Bessemer  consolidation    such    as    would    render 

Railroad  Company,  the  Easlev  Railway  defendant  responsible  for  a  tort  previ- 

and  the  Birmingham  and  Electric  Com-  ously  committed  by  its  vendor.     Pen- 

pany,    private     corporations     existing  nison  v.  Chicago,  etc.,  R.  Co.,  93  Wis. 

under  the  laws  of  the  state  of  Alabama,  344. 

for  {Here  followed  the  statement  of  per-  For  agreed  statement  of  facts  in  an  ac- 

sonal  injuries  infiicted,  upon  which  the  tion  against  a  consolidated  corporation 

action  was  based,  the  count  concluding  as  see  John  Hancock  Mut.  L.  Ins.  Co.  v. 

follows:)     And  the  plaintiff  avers  that  Worcester,  etc.,  R.  Co.,  149  Mass.  214; 

by  reason  of  said  consolidation  the  de-  Compton   v.  Wabash,  etc.,    R.   Co.,  45 

fendant  is  liable  to  her  in  damages  for  Ohio  St.  593.     For  agreed   statements 

the   injuries   caused   by  the   wrongful  of   facts,   generally,   consult    the    title 

acts  of  the  said  Birmingham  Union  Rail-  Submitted  and  Agreed  Cases. 

56G  •               Volume  5. 


640 1 .  CORPORA  TIONS.  640 1 . 

a.  For  Injunction.' 
(1)  To  Enjoin  Operation  of  Proposed  Leask. 

DEMURRER  TO  BILL. 

Form  No.  6401. 

(Precedent  in  Gyger  v.  Philadelphia,  etc.,  R.  Co.,  136  Pa.  St.  99.)* 

[/esse  Gyger  "j  In  the  Court  of  Common  Pleas,  No.  2, 

against  1      of  the  City  and  County  of  Philadel- 

The  Philadelphia  City        |      phia.     December    Term,    \Z8S.      No. 
Passenger  Railway  Company.  J      SS2. 

The  demurrer  of  the  Philadelphia  City  Passenger  Railway  Company 
to  the  bill  of  complaint  of  Jesse  Gyger,  complainant: 

This  defendant  by  protestation,  not  confessing  or  acknowledging  all 
or  any  of  the  matters  and  things  in  the  said  complainant's  bill  to  be 
true  in  such  manner  and  form  as  the  same  are  therein  set  forth  and 
alleged,  doth  demur  to  the  whole  bill,  and  for  cause  of  demurrer 
showeth,j3 

1.  That  it  is  not  a  railroad  corporation  within  §  4,  article  XVII, 
of  the  constitution  of  this  state,  as  appears  from  the  facts  stated  in 
said  bill. 

2.  That  if  it  were  a  railroad  corporation  within  said  section  of  said 
article,  it  does  not  appear  from  said  bill  that  the  same  has  ever  been 
accepted  by  this  defendant. 

3.  That  if  it  is  a  railroad  corporation  within  said  section  of  said 
article,  the  lines  of  the  railway  companies,  defendants  herein,  as 
appear  by  the  charters  thereof  cited  in  said  bill,  do  not  constitute 
parallel  or  competing  lines,  inasmuch  as  the  same  are  laid  and  oper- 
ated on  different  streets  within  the  limits  of  a  city  and  have  different 
termini;  street  mathematical  parallelism,  nor  merely  eastern  and 
western  endings,  not  constituting  prohibited  lines,  within  the  mean- 
ing of  the  said  section  of  said  article,  as  in  said  bill  is  erroneously 
averred. 

4.  That  the  said  bill  contains  no  matter  of  equity  whereon  this 
court  can  ground  a  decree,  or  give  complainant  any  relief  as  against 
the  defendant. 

[Wherefore  these  defendants  demand  judgment  of  this  honorable 
court  whether  they  shall  be  compelled  to  make  any  further  answer 

1.  Injunction  at  the  suit  of  a  single  one  company  to  another,  for  a  period  f 
stockholder  may  issue  to  restrain  the  nine  hundred  and  ninety-nine  years, 
carrying  out  of  a  consolidation  agree-  of  the  franchise,  tracks,  cars,  and  all 
ment  which  has  been  carried  through  property  of  the  lessor,  and  for  an  in- 
without  due  authority,  the  object  of  junction.  Upon  the  demurrer  filed, 
which  was  to  prevent  lawful  competi-  assigning  the  reasons  given  in  the  text, 
tion.  Elkins  v.  Camden,  etc.,  R.  Co.,  the  court  sustained  the  same  and  dis- 
36  N.  J.  Eq.  5.  missed  the  plaintiff's  bill,  which  ruling 

For  forms  connected  with  injunction  was  affirmed  on  appeal, 

proceedings,  generally,  consult  the  title  For  formal  part*  of  demurrers,  gener- 

Injunctions.  ally,  consult  the  title  Demurrers. 

2.  The  bill  in  eqtiity  in  this  case  was  8.  The  words  in  [  ]  do  not  appear  in 
against  two  railway  companies  seeking  the  reported  case,  but  have  been  added 
to  declare  illegal  a  proposed  lease  by  to  complete  the  form. 

567  Volume  5. 


>■   Supplemental  I  n  f  or m  atio  n . 


6402.  CORPORA  TIONS.  6402. 

to  the  said  bill  or  any  ofthe  matters  or  things  therein  contained, 
and  pray  to  be  hence  dismissed  with  their  reasonable  costs  in  their 
behalf  sustained. 

Homer  Merritt^  Solicitor  for  Defendant.]* 
\{yerification.)\^ 

(2)  To  Restrain  Operation  of  Agreement  Creating  Monopoly. 
{a)  Attorney-GeneraV s  Information. 

Form  No.  6402.' 

In  Chancery  of  New  Jersey. 

Between  John  P.  Stockton^  Attorney-  ^ 
General^  informant, 
and 
'  The    Central    Railroad    Company  of 
New  Jersey^    the     Port     Reading 
Railroad  Company,  and  the  Phila- 
delphia    and     Reading     Railroad 
Company,  defendants. 
To  his  Honor  Alexander  T.  McGill,  Chancellor  of  the  State  of  New 
Jersey. 
Informing  showeth    unto   your   honor    your    informant,  John  P. 
Stockton,  Attorney-General  of  the  state  of  New  Jersey,  on  behalf  of 
the  said  state.*     That  on  or  about  the  thirty-first  day  of  May,  \W2, 
your  informant  exhibited  his    information  in  this    honorable   court 
against  the  Central  Railroad  Company  of  New  Jersey,  the  Port  Reading 
Railroad  Company,  and  the  Philadelphia  and  Reading  Railroad  Company, 
hereinafter  named  as  defendants,  thereby  stating:  (JJere  was  set  out, 
omitting  the  formal  parts,  the  original  information.')^ 

And  your  informant  further  shows  that  the  said  the  Central  Rail- 
road Company  of  New  Jersey,  the  Philadelphia  and  Reading  Railroad 
Company  and  the  Port  Reading  Railroad  Company  appeared  and  put  in 
separate  answers  to  said  information  adrnitting  many  of  the  allega- 
tions of  said  information,  but  denying  that  the  lease  made  by  the 
Central  Railroad  Company  of  Nerv  Jersey  to  the  Port  Reading  Railroad 
Company  was  in  reality  made  to  the  Philadelphia  and  Reading  Railroad 
Company,  or  for  the  objects  and  purposes  in  said  information  alleged; 

1.  The  words  in  [  ]  do  not  appear  in  create  a  monopoly  in  the  anthracite 
the  reported  case,  but  have  been  added  coal  trade  within  the  state  by  stifling 
to  complete  the  form.  competition    between     the    contracting 

2.  Consult  the  title  Verifications.  corporations.        An     injunction      was 

3.  This  supplemental  information  is  granted  directing  the  defendants  to 
copied  from  the  record  in  Stockton  v.  refrain  from  further  performing  or 
Central  R.  Co.,  50  N.  J.  Eq.  59,  489.  carrying  into  effect  the  lease  and  tri- 
The  object  of  the  information  was  to  partite  agreement. 

have  a  certain  indenture  of  lease,  made         For  other  informations  see  infra,  this 

between  the  Central  Company  of  New  title,  Complaint,  Petition,   Suggestion  or 

Jersey  and  the  Port  Reading  Company,  Information. 

and    also   certain    other    agreements,         4.  The  original  information  referred  to 

decreed  to   be   ultra  vires  and  void  as  in    the   text    is    set    out   infra.    Form 

against  public  policy,  and  as  tending  to  No.  6403. 

568  Volume  5. 


6402.  CORPORA  TIONS.  6402. 

and  the  said  defendant  corporations  further  insisted  that  even  if  the 
said  lease  was  to  be  deemed  a  lease  made  to  the  Philadelphia  and 
Reading  Railroad  Company^  that  such  lease  was  authorized,  and  that 
the  act  of  the  legislature  of  this  state,  approved  May  2,  1885,  entitled 
"  An  Act  respecting  the  leasing  of  railroads,"  was  unconstitutional 
and  void;  and  the  said  defendants  also  denied  having  entered  into 
any  combination  whatever  to  monopolize  the  business  of  mining  and 
selling  anthracite  coal,  and  they  further  denied  that  they  were  the 
owners  of  any  coal  lands,  or  that  they  had  any  power  to  increase  the 
selling  price  of  coal  or  that  they  had  entered  into  any  combinations 
or  agreement  to  prevent  competition  in  the  trade  in  coal. 

And  your  informant  further  informs  your  honor  that  said  answers 
have  been  replied  to,  and  that  witnesses  have  been  examined  on  the 
part  of  your  informant,  but  the  proofs  have  not  yet  been  closed,  as 
by  the  said  information  and  proceedings  now  remaining  as  of  record 
in  this  court  will  more  fully  appear. 

And  your  informant  further  informs  your  honor,  by  way  of  supple- 
ment, that  on  the  thirty-first  day  of  May  last,  being  the  day  on  which 
said  information  was  filed,  your  honor  made  an  order  in  said  cause  as 
follows:  {Here  was  set  out  order  to  show  cause  why  injunction  should  not 
is  sue. y^ 

And  your  informant  further  informs  your  honor,  that  on  the  hear- 
ing directed  by  said  order,  the  Central  Railroad  Company  0/  New 
Jersey,  the  Port  Reading  Railroad  Company,  and  the  Philadelphia  and 
Reading  Railroad  Company,  appeared  by  their  respective  counsel,  hav- 
ing answered  the  information  in  manner  aforesaid,  and  that  argu- 
ment was  had  concerning  the  matters  referred  to  in  said  order,  and 
that  on  the  twenty-ninth  day  oi  August,  iS92,  your  honor,  after  having 
considered  the  pleading,  proofs  and  arguments,  made  a  further  order 
or  decree,  as  follows:  {Here  was  set  out  the  order  granting 
injunction.  )2 

And  your  informant  further  informs  your  honor,  that  upon  the 
making  of  the  said  last  mentioned  order  and  injunction,  issued  and 
duly  served  upon  the  proper  officers  of  the  said  answering  defend- 
ants, which  injunction  was  in  the  words  following:  {Here  was  set  out 
the  injunction  verbatim. '^ 

And  your  informant  further  informs  your  honor,  that  between  the 
said  thirty-first  day  of  May  and  the  said  tiventy-ninth  day  of  August 
last,  the  preliminary  order  made  by  this  court  was  disobeyed  by  the 
Philadelphia  and  Reading  Railroad  Company  and  the  Central  Railroad 
Company,  acting  in  combination  and  conjointly  with  each  other, 
which  railroad  corporations  operated  their  railroads  in  the  state  of 
New  Jersey  in  such  manner  as  to  diminish  competition  among  them 
in  the  trade  in  anthracite  coal  and  arbitrarily  increased  the  price 
thereof  to  the  people  of  this  state,  as  well  the  coal  owned  or  con- 
trolled by  the  Central  Railroad  Company  as  that  owned  or  controlled 

1.  The  order  to  show  eaose  why  in-  in  the  text  is  set  out  in  full  infra.  Form 
junction  should  not  issue  referred  to  in     No.  6405. 

the  text  is  set  out  in  full  infra.  Form  8.  The  ixgnnotioii  referred  to  in  the  text 
No.  6404.  is  set  out  in  full  infra.  Form  No.  6406. 

2.  Th»  order  for  injonction  referred  to 

569  Volume  5. 


6402.  CORPORA  TIONS.  6402. 

by  the  Philadelphia  and  Reading  Railroad  Company,  by  raising  the 
price  of  t%%  coal,  on  or  about  \.\i&  first  day  oi  July,  iS92,  at  least  ten 
cents  per  ton,  and  by  raising  the  price  of  stove  coal,  at  the  same 
time,  at  least  fifteen  cents  per  ton ;  and  said  corporations  did  in  other 
respects  combine  with  each  other  to  prevent  competition  in  the  pro- 
duction, transportation  and  sale  of  such  coal  and  to  create  a  mo- 
nopoly thereof. 

And  your  informant  further  informs  your  honor,  that  on  or  about 
the  first  day  of  September,  i892,  the  said  the  Philadelphia  and  Reading 
Railroad  Company  and  the  Central  Railroad  Company,  acting  in  com- 
bination and  conjointly  with  each  other,  and  in  disobedience  of  said 
order  made  on  the  thirty-first  day  of  May,  iB92,  and  of  said  order 
made  on  the  twenty-ninth  day  oi  August,  iS92,  and  of  the  injunction 
issuing  thereon,  operated  their  respective  railroads  in  the  state  of 
New  Jersev  in  such  manner  as  to  diminish  competition  in  the  trade 
in  anthracite  coal,  and  again  arbitrarily  raised  the  price  of  the 
anthracite  coal  owned  or  controlled  by  the  Philadelphia  and 
Reading  Railroad  Company  and  the  Central  Railroad  Company,  of  the 
sizes  known  as  egg  and  stove,  not  less  than  twenty-five  stents  per  ton, 
and  have  arbitrarily  maintained  such  increased  prices  ever  since  to  the 
people  of  this  state,  and  about  the  same  time  the  said  railroad  com- 
panies, acting  in  concert  as  aforesaid,  arbitrarily  raised  the  price  of 
anthracite  coal  to  the  people  of  this  state  by  raising  the  rate  of 
freight  charged  by  them,  and  each  of  them,  for  the  transportation 
thereof  from  the  mines  to  points  on  tide-water  in  this  state  adjacent 
to  New  York,  not  less  than  ten  cents,  and  have  maintained  such 
increased  rate  of  transportation  ever  since. 

And  your  informant  further  informs  your  honor,  that  the  dis- 
obedience of  the  Central  Railroad  Company  of  New  Jersey  and  of  the 
Philadelphia  and  Readitjg  Railroad  Company  to  the  said  orders  has 
been  deliberate  and  wilful,  and  that  the  said  corporations  cannot 
safely  be  trusted  with  the  execution  thereof,  and  that  it  is  necessary 
that  a  receiver  should  be  appointed  with  such  powers  in  relation  to 
the  transportation  of  coal  over  said  road  as  may  be  necessary  to  give 
full  effect  to  the  orders  heretofore  made,  and  to  such  further  order 
and  decree  as  may  be  deemed  proper,  and  that  the  Philadelphia  and 
Readijig  Railroad  Cotnpany  and  the  Central  Railroad  Company  should 
be  enjoined  and  restrained  from  continuing  to  maintain  the  aforesaid 
advances  made  in  the  price  of  coal  and  for  the  transportation 
thereof,  and  should  be  restrained  from  operating  the  road  of  the 
Central  Railroad  Company  of  Neiv  Jersey,  so  far  as  such  operation 
relates  to  the  transportation  of  coal  thereover  at  said  advanced  prices 
and  rates. 

To  the  end,  therefore,  that  the  said  defendants  may,  if  they  can, 
show  why  your  informant  should  not  have  the  relief  hereby  craved, 
and  may  under  their  respective  common  and  corporate  seals,  on  the 
oaths  or  affirmations  of  their  respective  presidents  and  secretaries, 
answer  the  premises  as  fully  as  if  the  same  were  here  again  repeated, 
and  they  particularly  interrogated  thereto,  and  that  a  receiver  may  be 
appointed  to  take  charge  of  the  road  of  the  Central  Railroad  Company 
of  New  Jersey  generally,  with  such  powers  in  relation  to  the  trans- 

570  Volume  e,. 


6403.  CORPORA  TIONS.  6403. 

portation  of  coal  thereover  as  may  be  necessary  to  enforce  obedience 
to  the  commands  of  said  orders  and  injunction,  and  of  such  further 
decree  as  the  court  may  make  in  the  premises,  and  that  your  inform- 
ant may  in  addition  to  the  relief  specifically  prayed  by  him  in  the 
original  information,  have  such  other  or  further  relief  in  the  premises 
as  the  circumstances  of  his  case  may  require,  and  to  your  honor  shall 
seem  meet. 

May  it  please  your  honor,  the  premises  considered,  to  grant  unto 
your  informant,  not  only  the  state's  writ  of  injunction  issuing  out  of 
and  under  the  seal  of  this  honorable  court,  to  be  directed  to  the  said 
the  Central  Railroad  Company  of  New  Jersey  and  the  Philadelphia  and 
Reading  Railroad  Company,  enjoining  and  restraining  them  from 
further  continuing  the  aforesaid  advances  made  in  the  price  of  coal 
and  for  the  transportation  thereof,  and  enjoining  and  restraining  the 
Philadelphia  and  Reading  Railroad  Company,  and  the  Central  Railroad 
Company  of  New  Jersey,  and  each  of  them,  from  operating  the  road 
of  the  Central  Railroad  Company  of  Ne^v  Jersey  and  its  various 
branches  for  the  transportation  of  coal  thereon  at  said  advanced 
prices  and  rates,  and  for  so  long  a  time  as  said  corporations,  or 
either  of  them,  continue  to  maintain  such  prices  and  rates  or  any 
other  arbitrary  increase  in  the  price  of  coal,  or  doing  any  act  or 
thing  tending  to  prevent  future  or  existing  competition  in  the  pro- 
duction, transportation  or  sale  of  such  coal,  and  enjoining  and 
restraining  them  further  from  doing  the  acts  or  things  mentioned  in 
the  prayer  of  the  original  information,  but  also  the  state's  writ  of 
subpoena  to  be  directed  to  the  said  the  Central  Railroad  Company  of 
New  Jersey,  the  Philadelphia  and  Reading  Railroad  Company  and  the 
Port  Reading  Railroad  Company,  commanding  them,  and  each  of  them, 
at  a  certain  day  and  under  a  certain  penalty  therein  to  be  expressed, 
to  be  and  appear  before  your  honor  in  this  honorable  court,  then  and 
there  to  answer  the  premises,  and  to  stand  to,  abide  by  and  perform 
such  decree  therein  as  to  your  honor  shall  seem  meet. 

John  P.  Stockton,  Attorney-General. 

(  Verification,  y- 

Form  No.  6403.* 

(Commencing  as  in  Form  No.  t>Jf02,  and  continuing  down  to  *.) 
I.  That  by  an  act  of  the  legislature  of  the  state  oi  New  Jersey  and 
a  grant  of  the  said  state,  approved  February  26,  1847,  Garret  D.  IVall 
and  others,  his  associates  named  in  the  same  act  and  grant,  were 
ordained,  constituted  and  declared  to  be  a  body  corporate  in  fact 
and  in  name  by  the  name  of  the  Somennlle  and  Easton  Railroad  Com- 
pany, with  a  capital  stock  of  twelve  hundred  thousand  dollars,  with 
liberty  to  increase  the  same  to  two  millions  of  dollars,  to  be  divided 
into  shares  at  fifty  dollars  each,  which  shares  were  declared  to  be 
personal  property,  and  to  be  transferable  as  the  corporation  by  their 
by-laws  might  direct.  That  the  persons  named  in  the  act  were 
appointed  commissioners  to  receive  subscriptions  to  the  capital  stock 

1.  Consult  the  title  Verifications.         N.  J.  Eq.  59.  489;  and  is  partly  a  copy 

2.  TUi  information  is  baiod  npon  the  of  the  record  in  that  case.  See  also 
fMt«  in  Stockton  t.  Central  R.  Co.,  50    supra,  note  3,  p.  568. 

571  Volume  5. 


6403.  CORPORATIONS.  6403. 

as  directed  therein,  who  executed  the  duty  imposed  upon  them,  and 
the  said  capital  stock  was  subscribed;  and  that  the  stockholders  of 
said  corporation  were  convened,  according  to  the  provisions  of  the 
charter  and  grant  aforesaid,  and  elected  the  directors  of  said  corpo- 
ration, which  were  duly  organized  according  to  law,  and  accepted  the 
franchises  bestowed  upon  it  by  said  act  and  charter,  and  entered  upon 
the  performance  of  its  duties.  That  the  capital  stock  of  the  said 
corporation  was  all  paid  in,  and  that  the  said  corporation  entered 
upon  the  performance  of  its  duties,  constructed  the  railroad  author- 
ized and  prescribed  by  the  said  act  and  charter,  and  proceeded  to 
discharge  its  corporate  functions. 

That  the  powers  conferred  upon  the  said  corporation  by  its  said 
charter  were,  among  others,  to  lay  out  and  construct  a  railroad,  or 
lateral  roads  {describing  lines  ofroad^,  not  exceeding  one  hundred  i&et 
in  width,  with  as  many  sets  of  tracks  as  they  might  deem  necessary; 
and  the  power  of  eminent  domain  so  conferred  upon  the  said  corpo- 
ration for  the  purpose  of  taking  such  lands  and  waters  as  might  be 
necessary  for  the  construction  of  said  railroad,  which  the  said  corpo- 
ration was  unable  to  purchase  from  the  owners  thereof. 

That  the  said  corporation,  among  other  things,  was  required  by  its 
said  charter  to  deposit  in  the  ofifice  of  the  secretary  of  state  a  survey 
of  its  route  or  routes,  and  thereafter  it  was  enacted  that  it  should  be 
lawful  for  the  said  corporation  to  enter  upon,  take  possession  of, 
have,  hold,  use,  occupy  and  acquire  any  such  lands,  and  to  erect 
embankments,  bridges,  ferries,  and  all  other  works  necessary  to  lay 
rails,  and  to  do  all  other  things  which  should  be  suitable  and  neces- 
sary for  the  completion  or  repair  of  said  road  or  roads  subject  to 
making  such  compensation  to  the  owners  of  lands  as  were  directed 
in  said  charter;  and  in  and  by  the  said  charter  proper  prescriptions 
were  made  and  enacted  prescribing  the  method  in  which  the  said 
corporation  should  exercise  the  power  of  eminent  domain,  delegated 
to  it  by  the  said  charter,  and  the  particular  proceedings  which  should 
be  taken  by  the  said  corporation  for  giving  notice  to  the  owners  of 
the  lands,  so  to  be  taken,  and  procuring  a  proper  and  lawful  valuation 
of  the  lands  so  to  be  taken  by  the  said  corporation.  That  the  presi- 
dent and  directors  of  the  said  corporation  were  empowered  by  the 
tenth  section  of  the  said  charter  to  (^statement  of  pouiers  granted^?- 
That  the  president  and  directors  were  required  to  make  dividends 
within  one  year  after  the  said  railroad  should  have  been  completed, 
and  semiannually  thereafter  as  they  might  deem  prudent  and  proper. 
By  the  thirteenth  section  of  the  said  charter  the  said  corporation  were 
authorized  to  {statement  of  po7vers  given).^ 

1.  The  powers  granted  under  the  tenth  in  the  text  authorized  the  company  "to 
section  of  the  charter  referred  to  in  the  have  and  to  hold  real  estate  *  *  *  to 
text  were  "to  construct  or  purchase  erect  and  build  thereon  such  houses 
with  the  funds  of  the  company  and  to  *  *  *  as  they  might  deem  expedi- 
place  on  the  said  railroad  all  machines,  ent,  *  *  *  to  erect,  build  and  main- 
*  *  *  for  the  transportation  *  *  *  to  tain  *  *  *  wharves,  piers,  bridges, 
charge  for  the  transportation  "  (enu-  *  *  *  which  lands  might  be  taken  by 
meratin^  rates).  the  exercise  of  the   power  of  eminent 

2.  The  powers  given  under  the  thir-     domain." 
teenth  section  of  said  charter  referred  to 

572  Volume  5. 


6403.  CORPORATIONS.  6403. 

By  the  fifteenth  section  of  the  said  act  or  charter  the  said  corpora- 
tion was  empowered  to  {statement  of  powers  given).^  And  your 
informant  shows  that  no  other  power  of  alienating  the  said  corporate 
franchises  granted  to  the  said  corporation  was  given  to  or  conferred 
upon  the  said  corporation,-  and  that  the  said  corporation  had  in  fact 
no  other  power  of  alienating  its  corporate  franchises  or  property. 
And  for  greater  certainty  your  informant  prays  leave  to  refer  to  the 
act  entitled  "An  Act  to  incorporate  the  Somerville  and  Easton  Rail- 
road Company,"  approved  February  26,  1847,  which  act  is  the  legis- 
lative act,  grant  or  charter  of  the  said  corporation  hereinbefore 
substantially  set  forth. 

2.  And  your  informant  further  informs  your  honor,  that  by  an  act 
of  the  legislature  of  the  state  of  New  Jersey,  or  grant  or  charter, 
passed  February  9,  1831,  Isaac  H.  Williamson  and  his  associates 
named  in  the  said  act,  grant  or  charter,  were  ordained,  constituted 
and  declared  to  be  a  body  corporate  and  politic,  in  fact  and  in  name, 
by  the  name  of  the  Elizabethtoum  and  Somerville  Railroad  Company, 
with  a  capital  stock  of  two  hundred  thousand  dollars,  with  liberty  to 
increase  the  same  to  four  hundred  thousand  do\\3.vs,,  to  be  divided  into 
shares  oi  fifty  dollars  each,  which  should  be  deemed  personal  property, 
to  be  transferred  in  such  manner  as  the  corporation  by  its  by-laws 
should  direct,  and  that  the  said  Williamson  and  his  associates  were 
constituted  commissioners  to  receive  subscriptions  for  the  capital 
stock  of  said  corporation,  and  to  give  notice  for  a  meeting  of  the 
stockholders  thereof,  when  the  subscription  should  be  completed,  for 
the  election  of  nine  directors  of  said  corporation.  That  the  books  of 
subscription  were  opened  in  conformity  to  such  authority  by  the  said 
commissioners,  and  the  capital  stock  of  said  corporation  was  sub- 
scribed, and  the  stockholders  were  duly  called  together  in  a  legal 
meeting  and  organized  the  said  corporation  by  electing  directors,  who 
thereafter  elected  the  said  corporate  officers,  and  the  corporation 
thereby  accepted  the  said  charter  and  entered  upon  the  discharge  of 
its  corporate  functions  and  duties,  and  became  legally  vested  with  the 
corporate  privileges,  franchises  and  powers  conferred  upon  it  in  and 
by  the  said  act,  grant  or  charter.  That  the  president  and  directors  of 
the  said  company  were  authorized  and  vested  with  all  the  rights  and 
pi.vers  necessary  and  expedient  to  survey,  lay  out  and  construct  a 
railroad  or  lateral  roads,  from  one  or  more  suitable  place  or  places  in 
the  village  of  Somerville  to  one  or  more  place  or  places  in  Elizabeth- 
tozvn,  passing  as  near  as  practicable  Bound  Brook,  Plai afield,  Scotch 
Plains  and  Westfield,  not  exceeding  sixty-six  feet  wide,  with  as  many 
sets  of  tracks  and  grades  as  they  might  deem  necessary;  and  the 
said  corporation  was  authorized  at  all  times  to  enter  upon  all  the 
lands  or  water  by  its  agents  for  the  purpose  of  surveying  and  laying 
out  the  road  or  roads  of  such  railroad  or  lateral  roads,  and  locating 
the  same,  and  to  do  and  direct  all  necessary  work  and  appendages 

1.  The  power*  ^Ten  by  the  flfteenth  sary  to  build.  •  *  ♦  and  to  secure  the 
•ection  of  said  act  or  charter  referred  to  repayment  thereof  by  bond  and  mort- 
in  the  text  authorized  the  corporation  gage,  or  otherwise,  of  the  said  road, 
"  to  borrow  such  sum  or  sums  of  money  *  *  *  at  a  rate  of  interest  not  exceed- 
from   time  to  time  as  might  be  neces-     ing  seven  per  cent,  per  annum." 

578  Volume  5, 


6403.  CORPORATIONS.  6403. 

thereon,  and  that  the  route  or  routes  of  such  road  or  roads  or  lateral 
roads  so  determined  upon  they  were  required  to  deposit  a  survey 
thereof  in  the  office  of  the  secretary  of  state;  and  thereafter  were 
authorized  to  enter  upon,  take  possession  of,  hold  and  use  such  lands 
for  the  purposes  of  the  said  act,  charter  or  grant,  subject  to  such 
compensation  as  was  provided  in  said  charter  to  be  made  to  the 
owners  of  said  lands,  and  for  the  payment  of  damages  by  reason  of 
the  erection  and  construction  of  said  road.  That  in  and  by  the  said 
charter  the  corporation  were  vested  with  the  power  of  taking  such 
lands  as  they  might  reasonably  require  for  the  purposes  of  the  cor- 
poration by  the  exercise  of  the  power  of  eminent  domain,  and  in  and 
by  said  charter  particular  directions  were  prescribed  for  the  mode  in 
which  the  said  corporation  should  exercise  such  power  of  eminent 
domain;  to  give  notice  to  the  owners  of  lands  to  be  taken  by  it,  and 
ascertain,  and  make  due  and  lawful  compensation  therefor.  That 
the  president  and  directors  of  the  said  corporation  were  empowered 
to  have  constructed,  or  to  purchase  with  the  funds  of  the  company, 
and  to  place  on  the  said  railroad  constructed  by  them,  all  machines, 
engines,  wagons,  carriages  or  vehicles  for  the  transportation  of  per- 
sons or  any  species  of  property  as  they  might  deem  reasonable  or 
expedient,  provided  that  they  should  not  charge  more  than  {enume- 
rating charges).  And  that  the  railroad  or  railroads  with  all  their 
appendages  and  the  land  over  which  the  same  should  pass,  and  all  its 
works,  improvements,  carriages  and  other  property  whatsoever  were 
vested  in  the  said  company,  their  successors  and  assigns,  during  the 
continuance  of  said  act.  That  the  president  and  directors  of  said 
corporation  were  required,  within  one  year  after  the  railroad  should 
have  been  completed,  to  declare  and  make  such  dividends  as  they 
might  deem  prudent  and  proper  of  the  net  profits  thereof,  and  should 
in  like  manner  semiannually  thereafter  declare  such  dividends,  and 
pay  the  same  to  stockholders,  as  they  might  deem  prudent  and 
proper. 

By  the  thirteenth  section  of  said  act  or  charter  the  said  corporation 
was  authorized  to  {statement  of  pmvers  giveri).^ 

3.  And  your  informant  further  informs  your  honor,  that  by  an  act 
of  the  legislature  of  the  state  of  New  Jersey  {title  and  date  of  act)  the 
Somerville  and  Easton  Railroad  Company  was  authorized  and  empow- 
ered to  purchase  the  railroad  from  Somerville,  in  the  county  of  Somer- 
set, to  the  sound  in  the  township  of  Elizabeth,  then  in  the  county  of 
Essex,  constructed  under  and  by  virtue  of  the  act  entitled  "  An  Act  to 
incorporate  the  Elizabeth  and  Somerville  Railroad  Company,"  passed 
February  9,  1831;  and  was  also  authorized  to  pay  for  said  road,  in 
part  or  in  whole,  in  the  stock  of  the  Somerville  and  Easton  Railroad 
Company,  and  for  that  purpose  the  Somerville  and  Easton  Railroad 
Company  was  authorized  to  issue  so  much  of  its  capital  stock 
authorized  by  the  act  of  incorporation  as  should  be  required  for  that 
purpose.     That  by  the  third  section  of  said  act  it  was  enacted  that 

1.  The  powers  conferred  by  the  thir-  and  build  thereon  houses,  *  *  *  to 
teenth  section  of  the  act  of  the  charter  maintain  and  to  erect,  build  and  main- 
referred  to  in  the  text  were  "  to  have  tain  such  wharves,  piers,  bridges  and 
and  to  hold  real  estate.  *  *  *  to  erect    other  facilities,"  etc. 

574  Volume  5. 


5403.  CORPORATIONS.  6403. 

{statement  of  enactmenf)-^  and  various  provisions  in  detail  were  con- 
tained in  the  said  act  last  cited,  for  conserving  the  rights  of  all 
creditors  of  both  companies  and  effectually  enforcing  the  same.  And 
that  by  thtji/th  section  of  said  last  mentioned  act  the  Central  Rail- 
road Company  of  New  Jersey  -was  empowered  to  (statement  of  powers 
granted')^ 

To  which  said  acts  or  charters  of  February  9,  183 1,  and  February 
22,  1849,  your  informant  for  greater  certainty  prays  Leave  to  refer. 

4.  And  your  informant  further  informs  your  honor,  that  by  an  act 
of  the  legislature  of  Nerv  Jersey,  approved  March  17,  1854,  the  Cen- 
tral Railroad  Company  of  Neiu  Jersey  was  authorized  and  empowered 
to  erect,  build  or  extend  such  wharves,  docks  or  piers  opposite  to 
and  adjoining  the  lands  owned  by  it  in  the  township  of  Elizabeth, 
as  far  into  the  sound  or  bay  as  might  be  necessary  for  the  purpose  of 
facilitating  transshipment  of  coal  and  its  general  transporting 
business,  and  also  to  have  and  hold  whatever  wharves,  piers,  lands, 
steamboats,  sailing  vessels  and  other  facilities  in  the  state  of  AVw 
York  or  Elizabeth  as  might  be  necessary  for  the  managing  of  its 
business.  And  was  also  authorized  and  empowered  to  increase 
its  capital  stock  with  the  assent  of  a  majority  of  its  stockhold- 
ers to  any  sum  not  exceeding  Jive  millions  of  dollars,  and  to  change 
the  par  value  of  the  shares  of  the  stock  of  said  corporation  by  issuing 
one  share  of  one  hundred  dollars  at  par  in  place  of  every  two  shares  of 
the  value  of  fifty  dollars.  And  by  the  third  section  of  said  last 
mentioned  act  the  said  corporation,  the  Central  Railroad  Company  of 
Nnv  Jersey,  was  authorized  and  empowered  to  {statement  of  poivers 
granted').  ^  And  by  stcUon  four  of  the  said  charter  it  was  also  provided 
{statement  of  provisions).^     And  by  section  seven  of  the  said  last  men- 

1.  The  enactments  of  the  third  section  solidate  the  stock  of  such  company 
of  the  act  referred  to  in  the  text  were  with  their  own,  on  terms  to  be  mutually 
to  the  effect  that  "when  the  said  pur-  agreed  upon,  with  the  assent  of  three- 
chase  should  have  been  made,  the  rail-  quarters  in  interest  of  the  stockholders 
road  so  purchased  should  become  part  of  the  said  Central  Railroad  Company  of 
of  the  railroad  authorized  to  be  con-  New  Jersey,  with  provisions  by  which 
structed  by  the  Somerville  and  Easton  any  dissenting  stockholder  might  have 
Railroad  Company;  and  in  its  further  the  value  of  his  shares  of  stock  ap- 
construction  and  completion,  mainten-  praised,  and  thereupon  the  said  cor- 
ance,  use  and  enjoyment  the  said  poration  was  required  to  take  said 
roads  should  be  regulated  and  governed  shares  of  stock  at  said  appraised 
by  the  provisions  of  the  charter  of  the  value." 

last  named  company;  and  for  that  pur-  4.  The  proyisions  of  section  four  of  the 

pose  all  and  every  provision  of  the  act  charter  referred  to  in  the  text  were  to 

entitled,"  etc.  the   effect   "  that   if  such   purchase  or 

2.  The  powers  gn^nted  under  the  fifth  consolidation  should  be  made,  the  rail- 
section  of  the  act  referred  to  in  the  text  roads  so  purchased  or  consolidated,  if 
authorized  the  corporation  "to  pur-  in  this  state,  should  be  and  become  a 
chase  and  hold  lands  at  the  termina-  part  of  the  railroad  authorized  to  be 
tion  of  said  railroad,"  etc.  constructed   by   the   act   incorporating 

3.  The  powers  granted  by  the  third  sec-  said  Central  Railroad  Company  of  New 
tion  of  the  act  mentioned  in  the  text  Jersey,  and  for  that  purpose  every  pro- 
authorized  the  corporation  "  to  pur-  vision  of  such  act  of  incorporation, 
chase,  or  lease,  or  operate  any  rail-  with  supplements  thereto,  to  extend 
road  which  might  connect  with  or  and  be  applicable  to  the  railroad  so 
intersect  their  roads,  or  to  guarantee  purchased  or  consolidated  in  every  re- 
the  bonds  of  said  company,  or  to  con-  spect  as  if  the  same  had  been  author- 

575  Volume  5. 


6403.  CORPORA  TIONS.  6403* 

tioned  act  or  supplement  it  was  provided  that  {statement  of  provisions)}- 
And  in  and  by  said  act  it  was  further  enacted  that  if  the  company, 
within  six  months  from  the  passage  thereof,  should  file  in  writing 
its  assent  to  an  acceptance  of  the  provisions  thereof,  the  act  should 
take  effect  immediately  thereafter;  but  that  if  the  company  refused 
or  neglected  so  to  do,  then  the  act  should  be  null  and  void,  and  your 
informant  informs  your  honor  that  the  said  company  duly  accepted 
and  filed  its  acceptance  of  said  act  within  the  said  period  of  six 
months,  to  which  said  act  your  informant  refers. 

5.  And  your  informant  further  informs  your  honor,  that  by  an  act  of 
the  legislature  of  Nen'  Jersey  {title  and  date  of  act),  the  said  the  Central 
Railroad  of  New  Jersey  was  authorized  to  extend  its  railroad  from 
some  point  in  the  city  of  Elizabeth  to  some  point  or  points  on  New 
York  bay,  in  the  county  of  Hudson,  at  or  south  oi  Jersey  City,  and  for 
that  purpose  was  authorized  to  use  all  powers  and  franchises  con- 
ferred upon  it  by  the  act  entitled  "  An  Act  to  incorporate  the  Somer- 
ville  and  Easton  Railroad  Company,"  hereinbefore  in  substance  set 
forth,  and  was  required  to  construct  certain  bridges  and  draw- 
bridges within  certain  prescribed  conditions,  and  was  required  to 
run  certain  trains  for  the  accommodation  of  commuters  and  local 
travelers  on  said  road,  and  in  said  act  certain  conditions  were  con- 
tained prohibiting  the  construction  of  the  said  extension  of  said 
railroad  nearer  than  one  thousand  feet  to  the  Jersey  City  and  Bergen 
Point  plank  road,  and  conserving  the  claims  of  all  riparian  shore 
owners,  to  which  act  your  informant  refers. 

6.  And  your  informant  further  informs  your  honor,  that  by  an  act 
of  the  legislature  of  New  Jersey  {title  and  date  of  act),  the  said  exten- 
sion from  Elizabeth  to  Jersey  City  was  authorized  to  be  constructed, 
not  nearer  than  {description  of  extension),  to  which  act  your  informant 
refers. 

7.  And  your  informant  further  informs  your  honor,  that  by  an  act 
of  the  legislature  of  the- state  oi  New  Jersey,  z.^y^xo\^^  March  11, 
1863,  the  Central  Railroad  Cotnpany  of  New  Jersey  was  empowered 
to  increase  its  capital  stock  to  any  sum  not  exceeding  two  millions  of 
dollars  in  addition  to  the  then  authorized  amount  of  capital  stock, 
and  that  by  like  act  approved   April   5,   1865,  the  Central  Railroad 

ized  to  be  made  under  the  act  or  char-  corporation  should  be  subject  to  all  the 

ter  of   the  said    Central  Railroad  Com-  conditions  and    restrictions    in    taking 

panyofNewfersey."  possession  of  and  using  the  lands  re- 

1.  The  provisions  of  section  seven  of  quired   by  their  act  of  incorporation, 

the  act,  or  supplement,  referred   to  in  and   to   which   they    were    subject   re- 

the  text  were  to  the  effect  that  "the  specting  land  required   for  said   road; 

said  the   Central  Railroad   Company   of  with  the  further  provision   that  if  the 

New  fersey  might  alter  the  location  of  company  located  any  new  line  or  lines 

their  railroad,  or  locate  new  lines  when  of  tracks  within  the  township  of  Bridge- 

additional  tracks  should   be  required,  water,   and  should   not   own   the  land 

at  any  point  or   points,  between  Phil-  lying  between  the  old  or  lands  of  the 

lipsburg  and  Elizabethport,  not  varying  new  line   or  lines    they   might    locate, 

in  any  case  over  one  mile  from  the  line  the  old   lines   should    be   vacated  and 

located   and   filed,    after   filing   in    the  the   land   upon    which    the   same   had 

office  of  the  secretary  of  state  a  survey  been  constructed  should  revert  to  the 

of  such   location   as  varied    from    the  original  owner." 
original   location,    and    that    the   said 

576  Volume  5. 


6403.  CORPORATIONS.  6403. 

Company  was  authorized  to  increase  its  capital  stock  in  any  sum  not 
exceeding  three  millions  of  dollars  in  addition  to  its  then  authorized 
amount  of  capital.  And  by  an  act  of  the  legislature  of  New  Jersey, 
approved  April  6,  1865,  t\i^  Central  Railroad  Company  of  New  Jersey 
was  authorized  and  empow-ered  to  construct  a  bridge  across  the 
Delaware  river  jointly  with  such  corporation  of  the  state  of  Pennsyl- 
vania, as  has  been  thereto  properly  empowered  by  the  said  state  of 
Pennsylvania,  which  bridge  when  constructed  should  not  destroy  or 
materially  injure  any  of  the  works  of  the  Morris  Canal  and  Banking 
Company,  or  the  ferry  of  said  company  across  the  Delaware  river, 
except  by  agreement  between  the  said  corporations  authorized  to 
build  the  said  bridge  and  the  Morris  Canal  and  Banking  Company, 
and  to  protect  the  rights  of  navigation  as  far  as  practicable  in  the 
interests  of  the  public.  The  location  of  piers  and  abutments  of  the 
said  bridge  was  required,  before  the  same  should  be  constructed,  to 
be  approved  by  three  suitable  and  disinterested  commissioners  to  be 
appointed  by  the  chancellor  and  the  chief  justice  of  this  state,  and 
the  said  bridge  when  constructed  was  to  be  open  to  the  free  use  of 
any  other  railroad  or  canal  corporation  of  the  state  oi  Ne^v  Jersey 
for  the  transportation  of  passengers  or  freight  upon  or  over  the 
same,  and  to  make  such  connection  with  the  said  bridge  as  might  be 
requisite  to  give  them  the  free  use  of  the  same  for  the  convenience 
of  such  passengers  and  freight;  and  the  said  corporation  so  using 
said  bridge  was  required  to  pay  to  the  Central  Railroad  of  New 
Jersey  tolls  not  exceeding  three  cents  per  ton  for  each  ton  of  mer- 
chandise or  freight,  and  five  cents  per  passenger  for  each  passenger 
transported  over  said  bridge;  and  that  by  an  act  of  the  legislature, 
approved  March  5,  1866,  the  said  the  Central  Railroad  of  New  Jersey 
was  authorized  and  empowered  to  increase  its  capital  stock  to  any 
sum  not  exceeding  four  millions  of  dollars  in  addition  to  the  then 
authorized  amount  of  its  capital  stock,  to  which  acts  your  informant 
refers. 

8.  And  your  informant  further  informs  your  honor,  that  by  an 
act  of  the  legislature  of  the  state  of  New  Jersey,  approved  March 
17,  1870,  the  Central  Railroad  Company  of  Nav  Jersey  was  authorized 
and  empowered  to  survey,  lay  out  and  construct  a  branch  railroad 
from  (^description  of  branch  road),  and  was  authorized  and  empowered 
to  use  all  powers  and  franchises  granted  and  conferred  by  the  act 
entitled  "An  Act  to  incorporate  the  Somerville  and  Easton  Railroad 
Company,"  passed  February  26,  1847,  and  the  supplements  thereto; 
and  by  an  act  .approved  March  24,  1872,  the  said  the  Central  Rail- 
road Company  of  New  Jersey  was  authorized  and  empowered  to  in- 
crease its  capital  stock  five  millions  of  dollars  in  addition  to  the 
then  authorized  amount,  and  to  use  the  same  to  take  up  scrip  for 
like  amount  theretofore  issued  with  the  assent  of  the  majority  in  in- 
terest of  said  stockholders,  and  by  the  same  last  mentioned  act  the 
Central  Railroad  Company  of  Ne7i' Jersey  vfdiS  di\x\.hov\z&(\  and  empow- 
ered to  construct  a  branch  railroad  from  (description  of  branch  road); 
and  for  the  location,  construction  and  enjoyment  of  such  branch  all 
the  provisions  of  the  charter  of  the  said  company  and  supplements 
were  made  applicable. 

5  E.  of  F.  P. —  37.  677  Volumes. 


6403.  CORPORATIONS.  6403. 

9.  And  your  informant  informs  your  honor,  that  in  and  by  the  said 
several  acts  of  the  legislature  of  New  Jersey,  hereinbefore  set  forth 
and  stated  in  substance,  and  for  greater  certainty  your  informant 
begs  leave  particularly  to  refer  to  the  said  acts  and  provisions  thereof, 
the  purpose  and  intent  for  which  the  said  corporation  was  created 
•vias  (Jlere  was  stated  purpose  of  creation  of  corporation);  and  the  said 
the  Central  Railroad  Company  of  New  Jersey  wdiS  not  authorized  and 
empowered  and  could  not  lawfully  use  its  corporate  franchises,  pow- 
ers and  privileges  for  any  other  purposes  or  business  whatever,  and 
that  the  said  the  Central  Railroad  of  New  Jersey  was  prohibited,  by 
necessary  implication,  from  carrying  OQ  and  from  using  its  capital 
stock  or  corporate  funds  for  carrying  on  any  other  business  what- 
ever than  the  transportation  of  passengers  and  freight  in  manner 
aforesaid,  and  that  the  said  the  Central  Railroad  Company  of  New 
Jersey  had  no  power  whatever  of  alienating  by  device,  conveyance 
or  otherwise  howsoever,  any  of  its  corporate  property,  railroad,  fran- 
chises, powers  or  privileges,  except  by  way  of  mortgaging  for  the 
purpose  of  raising  funds,  for  the  purpose  of  the  construction  of  the 
railroad  and  branches  authorized  to  be  constructed  by  the  charters 
and  acts  hereinbefore  set  forth;  and  your  informant  further  informs 
your  honor  that  the  Central  Railroad  of  New  Jersey  proceeded  to  con- 
struct and  operate  the  railroads  and  branches  which  it  was  authorized 
by  its  charter  and  supplements  thereto  to  construct  and  operate,  and 
entered  upon  and  discharged  the  functions  which  it  was  bound  by 
said  acts  to  undertake  and  execute,  and  did  execute  and  perform  the 
same  in  conformity  to  the  said  charter  until  about  the  year  eighteen 
hundred  and  seventy-one,  when  the  said  the  Central  Railroad  Company  of 
New  Jersey,  without  authority  of  law,  and  in  violation  of  its  charter, 
entered  into  an  indenture  of  lease  with  the  Lehigh  Coal  and  Naviga- 
tion Company,  a  corporation  created  by  the  state  of  Pennsylvania,  by 
which  instrument  the  said  the  Central  Railroad  Company  of  New  Jer- 
sey pretended  to  acquire  in  perpetuity  the  railroad,  branches  and 
works  of  the  Lehigh  Coal  and  Navigation  Company  in  the  state  of 
Pennsylvania;  but  your  informant  informs  your  honor  that  the  Cen- 
tral Railroad  Company  of  New  Jersey,  at  the  execution  of  said  lease, 
had  no  authority  by  any  grant  or  charter  from  the  state  of  New  Jer- 
sey to  execute  said  lease  in  perpetuity  or  to  take  the  said  railroad  and 
works  of  the  said  Lehigh  Coal  and  Navigation  Company,  nor  to  operate 
and  manage  said  road  by  the  exercise  either  of  the  corporate  fran- 
chises and  powers  and  privileges  of  the  said  Lehigh  Coal  and  Naviga- 
tion Company,  or  by  the  exercise  of  the  corporate  franchises  and  privi- 
leges which  had  been  granted  to  the  Central  Railroad  Company  of 
New  Jersey  by  the  ^\.2itt.o{  New  Jersey,  but  that  said  lease  was  wholly 
ultra  vires  of  the  Central  Railroad  Company  of  Ne7v  Jersey,  and  was 
illegal  and  void,  and  an  unwarrantable  use  of  the  corporate  powers 
and  privileges  granted  by  the  state  of  New  Jersey  to  the  said  Central 
Railroad  Company  of  New  Jersey. 

10.  And  your  informant  further  informs  your  honor,  that  at  or 
about  the  year  eighteen  hundred  and  seventy-one ,  and  at  or  after  the 
acceptance  by  the  Central  Railroad  Company  of  Ne7v  Jersey  of  the 
lease  hereinbefore  stated,  made  to  it  by  the  Lehigh  Coal  and  Naviga- 

678  Volume  5. 


6403.  CORPORATIONS.  6403. 

Hon  Company,  the  said  the  Central  Railroad  Company  of  New  Jersey, 
without  authority  of  law  and  in  violation  of  its  charter,  purchased 
from  the  Lehigh  Coal  and  Navigation  Company  a  large  part,  or  all  of 
the  rolling  stock,  equipment,  locomotive  engines,  passenger  and 
freight  cars  of  the  said  Lehigh  Coal  and  Navigation  Company,  used  by 
it  upon  its  said  railroad  so  demised  as  aforesaid  by  it  to  the  Central 
Railroad  Company,  and  which  said  rolling  stock,  etc.  ,v  was  purchased 
by  the  Central  Railroad  Company  for  the  purpose  of  operating  the 
said  illegally  demised  railroad,  and  said  last  named  company  used 
and  applied  several  millions  of  dollars  of  its  capital  funds,  subscribed 
and  contributed  to  said  capital  fund  under  the  aforesaid  charter 
granted  by  the  state  of  Neju  Jersey  to  the  said  the  Central  Railroad 
Company,  to  the  purchase  of  the  said  rolling  stock,  engines,  cars,  etc., 
aforesaid,  by  assuming  the  payment  of  the  purchase  money  thereof 
then  owing  by  the  said  Lehigh  Coal  and  Navigation  Company.  And 
your  informant  shows  that  such  use  of  the  capital  funds  so  sub- 
scribed, and  constituting  a  part  of  the  capital  authorized  by  the  char- 
ter of  the  said  the  Central  Railroad  Company  of  New  Jersey,  was 
wholly  diverted  from  the  uses  and  intents  for  which  the  same  was 
authorized  by  the  said  charter,  and  applied  to  a  wholly  different  and 
unauthorized  use  and  purpose. 

II.  And  your  informant  further  shows  unto  your  honor,  that  by  a 
supplement  to  the  charter  of  the  Somerville  and  Easton  Railroad  Com- 
pany, which  supplement  was  approved  March  21,  1874,  the  Central 
Railroad  Company  of  New  Jersey  was  authorized  and  empowered,  in 
order  to  secure  a  paying  business  for  its  said  railroad  and  works,  to 
guarantee  the  payment  of  the  bonds  of  any  coal  company  or  compa- 
nies owning  or  working  coal  lands  along  the  aforesaid  line  of,  or  adja- 
cent to  any  of  the  aforesaid  railroad's  branches  or  works  in  the  state 
of  Pennsylvania,  which  were  pretended  to  be  leased  as  aforesaid  to 
the  said  the  Central  Railroad  Company  of  New  Jersey,  in  which  lands 
the  said  company  may  or  may  not  have  an  interest.  That  at  and 
before  the  time  of  the  passage  of  this  act,  and  subsequently  thereto, 
the  Central  Railroad  Company  of  New  Jersey,  without  any  authority 
of  law,  had  purchased  large  quantities  of  anthracite  coal  lands  in  the 
state  of  Pennsylvania,  and  had  expended  many  millions  of  dollars  of 
its  capital  funds  in  the  purchase  of  such  lands,  which  use  of  its  said 
capital  fund  was  wholly  unauthorized  by  its  charter,  and  had,  after 
said  purchase,  pretended  to  organize  a  coal  company  under  the  laws 
of  the  state  of  Pennsylvania,  under  the  corporate  title  of  the  Lehigh 
and  Wilkesbarre  Coal  Company,  and  pretended  to  subscribe  to,  or  did 
actually  purchase  with  the  capital  funds  of  the  Central  Railroad  Com- 
pany of  New  Jersey,  a  large  majority  of  the  capital  stock  of  the  said 
Lehigh  and  Wilkesbarre  Coal  Company,  and  being  in  control  of  the  said 
Lehigh  and  Wilkesbarre  Coal  Company,  and  in  fact  the  owners  thereof, 
by  means  of  the  use  of  its  capital  funds  in  violation  of  said  charter 
in  the  purchase  thereof,  proceeded  to  issue  large  quantities  of  bonds 
in  the  name  of  the  said  Lehigh  and  Wilkesbarre  Coal  Company,  and 
indorsed  thereon  the  guaranty  of  the  Central  Railroad  Company  of 
Netu  Jersey  of  the  payment  of  the  principal  and  interest  of  the  said 
bonds,  and  that  by  means  of  these  acts  of  purchase  of  coal  lands,  and 

579  Volume  5. 


6403c  CORPORATIONS.  6403. 

the  formation  of  the  said  Lehigh  and  Wilkesbarre  Coal  Company,  which 
was  owned  and  is  still  owned  and  controlled  by  the  Central  Railroad 
Company  of  New  Jersey,  and  acquired  by  the  use  of  the  capital  funds 
of  said  last  mentioned  company  authorized  to  be  raised  by  its  char- 
ter and  supplement  hereinbefore  stated,  the  said  the  Central  Railroad 
Company  of  New  Jersey  became  in  fact  the  owner  of  a  large  part  of 
the  anthracite  coal-bearing  territory  of  the  United  States,  situated 
in  the  said  state  of  Pennsylvania,  and  entered  into  the  regular  busi- 
ness of  mining  and  selling  coal,  which  said  business  was  ultra  vires 
and  unauthorized  by  the  charter  of  the  said  the  Central  Railroad 
Company  of  New  Jersey ;  and  the  said  the  Central  Railroad  Company 
of  New  Jersey  t.Xi\.&xt(S.  into  the  said  business  of  mining  and  selling 
coal  so  extensively  that  the  annual  product  of  its  mines  and  the 
annual  sales  of  coal  by  said  company  amounted  to  many  millions  of 
tons ;  and  the  said  the  Central  Railroad  Cotnpany  of  Neiv  Jersey  became 
and  has  continued  from  thence  until  this  time  to  be  one  of  the  largest 
producers  and  sellers  of  anthracite  coal  in  the  United  States,  and  still 
continues,  in  violation  of  law  and  its  charter,  to  be  such  producer 
and  dealer  in  anthracite  coal.  And  your  informant  shows  your  honor 
that  all  these  acts  aforesaid  of  the  Central  Railroad  Company  of  New 
Jersey  were  intended  to  be,  and  are  in  fact,  acts  tending  to  a  mo- 
nopoly of  the  business  of  making  and  selling  anthracite  coal,  and  are 
wholly  violative  of  its  charter  aforesaid. 

12.  And  your  informant  further  informs  your  honor,  that  on  or 
about  the  twenty-ninth  day  of  May,  eighteen  hundred  and  eighty-three, 
the  said  the  Central  Railroad  Company  of  New  Jersey,  without  any 
authority  of  law  enabling  it  thereto,  executed  and  delivered  to  the 
Philadelphia  and  Reading  Railroad  Company,  a  corporation  of  the 
state  of  Pennsylvania,  an  indenture  of  lease  by  which  it  purported 
and  affected  to  demise  to  (^Here  was  set  out  purport  of  lease"),^  Sind 
delivered  the  possession  of  all  its  property  at  the  date  of  said  lease 
to  said  lessee ;  and  that  one  Alfred  Mills  and  John  H.  Lidgerwood, 
executors  of  the  will  of  Stephen  Vail,  deceased,  filed  their  bill  of  com- 
plaint in  this  court,  praying  to  have  the  said  lease  decreed  to  be  null 
and  void,  and  to  be  set  aside  and  for  nothing  holden,  and  to  have  the 
said  the  Central  Railroad  Company  of  New  Jersey  reinstated  in  the 
rights  and  repossessed  of  the  property  which  was  so  demised  and 
conveyed  by  the  said  alleged  instrument  of  lease,  and  that  in  said 
suit  such  proceedings  were  had  and  taken  that  the  cause  came  on  to 
a  hearing  before  this  court  upon  the  pleadings  and  proofs  in  the 
cause,  and  the  chancellor  having  duly  considered  the  same,  and 
heard  the  arguments  of  counsel  thereon,  adjudged  and  determined 
that  the  said  the   Central  Railroad  Company  of  Neiv  Jersey  had  no 

1.  The  purport  of  the  indenture  of  lease  renewal,  extension,   alteration   or  im- 

referred  to  in  the  text  was  to  demise  provement  of  the  said  demised  railroad 

'^  to  X.\\Q  saLidihc  Fhitadelphia  and  Read-  and   works,   and   their  appurtenances, 

ing  Railroad  Company,  for  the  period  of  reserving  in  said  instrument  an  annual 

nine  hundred  and  ninety-nine  years,  its  rent,  equal  to  i'/'jr  per  cent,  upon  the  par 

railroad  and  works  and  all  appendages,  value  of  the  then  outstanding  capital 

and  convey  to  it  all  its  property,  real  stock  of  the  Central  Railroad  Company 

and  personal,  rights,  powers,  franch.ses  of  A^ew  fersey.'' 
and   privileges   for    the    mainicna  ice, 

580  Volume  5. 


6403.  CORPORATIONS.  6403. 

power  and  authority,  by  virtue  of  its  charter,  or  any  of  the  supple- 
ments thereto,  or  by  any  other  act  of  the  legislature  of  the  state  of 
New  Jersey,  to  enter  into  such  indenture  of  lease,  or  to  demise  its 
property,  powers,  privileges  and  franchises,  or  any  of  them,  to  any 
other  corporation  or  corporations,  and  by  the  decree  of  this  court 
the  said  indenture  of  lease  was  wholly  set  aside,  and  decreed  to  be  for 
nothing  holden,  and  the  said  the  Philadelphia  and  Reading  Railroad 
Companyw3iS  ordered  and  decreed  to  (^Here^vas  set  out  effect  of  decree)}- 
and  for  greater  certainty  your  informant  refers  to  the  record  of  the 
proceedings  in  this  cause  as  the  same  appear  of  record  in  the  Court 
of  Chancery  of  Neiv  Jersey,  which  record  your  informant  is  ready  and 
offers  to  produce  and  prove. 

13.  And  your  informant  further  shows  unto  your  honor,  that  on  or 
about  the  third  day  of  November,  eighteen  hundred  and  ninety,  A.  A. 
McLeod,  I.  A.  Siveigard,  William  R.  Taylor,  D.  Jones,  Robert  S.  Davis y 
John  Walker,  Jr.,  all  of  the  city  of  Philadelphia  in  the  state  oi  Penn- 
sylvania, and  all  of  whom  are  officers  and  persons  in  the  employ  of 
the  Philadelphia  and  Reading  Railroad  Company,  together  with  Nathan 
Francis  and  others  of  the  state  of  New  Jersey,  whose  names  are  set 
forth  in  the  certificate  of  articles  of  association  hereinafter  men- 
tioned, formed  themselves  into  a  railroad  corporation  by  the  name 
of  the  Port  Reading  Railroad  Company,  under  an  act  of  the  legisla- 
ture of  the  state  of  Ne^v  Jersey  entitled  {title  and  date  of  act),  and  the 
acts  supplementary  and  amendatory  thereof,  for  the  alleged  purpose 
of  constructing,  maintaining  and  operating  a  railroad  for  the  public 
use,  in  the  conveyance  of  persons  and  property,  to  begin  at  (descrip- 
tion of  line  of  road).  The  amount  of  the  capital  stock  of  the  said 
company  was  declared  to  be  two  millions  of  dollars  in  twenty  thousand 
shares  of  the  par  value  of  one  hundred  dollars;  and  {names  of  directors) 
were  constituted  and  appointed  and  became  the  directors  of  the  said 
company  to  manage  its  affairs  for  the  first  year,  all  of  whom  are 
officers  or  agents  of  the  Philadelphia  and  Reading  Railroad  Company^ 
and  that  the  present  directors  of  the  said  Port  Reading  Railroad  Com-^ 
pany  are  {names  of  directors),  all  of  whom  your  informant  avers  to  be 
officers  or  agents  of  the  Philadelphia  and  Reading  Railroad  Company, 
and  that  all  the  moneys  which  have  been  paid  and  expended  hereto- 
fore, and  are  being  paid  and  expended  in  the  construction  of  the 
railroad  of  the  said  Port  Reading  Railroad  Company,  have  been  paid 
and  are  being  paid  by  the  Philadelphia  and  Reading  Railroad  Company^ 
and  that  the  said  Port  Reading  Railroad  Company  is,  in  fact,  owned 
and  controlled  by  the  Philadelphia  and  Reading  Railroad  Company, 
through  the  nominal  officers  and  directors  of  the  Port  Reading  Rail- 
road Company  and  solely  in  the  interest  of  and  for  the  benefit  of  the 

1.  The  decree  referred  to  in  the  text  to  re-enter  into  the  possession  of  the 

ordered  the  Philadelphia  and  Reading  same  and  to  discharge  all  its  corporate 

Railroad  Company  "  to  restore  to  the  powers  and  privileges,  and  to  perform 

Central  Railroad  Company  of  New fersey  all   its   functions   as   a    transporter   of 

all     its     railroads,     property,     assets,  persons  and   passengers,   and    in    the 

works    and    appurtenances   purported  management  of  its  said  roads,  works, 

to  have  been  demised  as  aforesaid,  and  property,  franchises  and  privileges  as 

the  said  the  Central  Railroad  Company  if  the  said  lease  had  never  been  exe- 

cf  New  Jersey  was  decreed  and  ordered  cuted." 

681  Volume  5. 


6403. 


CORPORA  TIONS. 


G403. 


Philadelphia  and  Reading  Railroad  Company^  and  that  the  orincipal 
office  of  the  Port  Reading  Railroad  Cotnpany  is  at  No.  227  South 
Fourth  street,  Philadelphia,  which  is  the  office  of  the  Philadelphia  a?id 
Reading  Railroad  Company. 

14.  And  your  informant  further  shows  unto  your  honor,  that  on  or 
about  the  twelfth  day  of  February,  eighteen  hundred  and  ninety-tivo, 
the  Central  Railroad  Company  of  Neiv  Jersey  executed  and  delivered 
to  the  said  the  Port  Reading  Railroad  Company  an  indenture  of  lease 
wherein  the  lessor  is  denoted  the  "  Central  Company"  and  the  lessee 
is  denoted  the  '■'•Port  Reading  Cotnpany,''  and  by  the  said  indenture 
of  lease  the  Central  Company  pretended  to  (^Here  was  set  out  the  pur- 
port of  the  indenture  of  lease)}- 


1.  The  puriwrt  of  the  lease  referred  to 

in  the  text  pretended  "to  let  and  de- 
mise the  Port  Reading  Company,  its  suc- 
cessors and  assigns,  for  the  term  of 
nine  hundred  and  ninety-nine  years,  the 
entire  railroad  of  the  Central  Company, 
as  the  same  was  then  located  and  con- 
structed, or  as  the  same  might  be 
thereafter  located  and  constructed,  in 
pursuance  of  any  and  every  lawful 
authority  now  existing,  or  which  might 
hereafter  exist,  together  with  all  its 
right  to  construct,  maintain  and  oper- 
ate the  following  described  railroads: 
The  Central  Railroad  of  JVew Jersey,  in- 
cluding its  following  branches  {naming 
the  branches),  together  with  all  the 
branches,  laterals,  extensions,  sidings, 
turnouts,  tracks,  bridges,  viaducts,  cul- 
verts, rights  of  way,  water  rights  and 
privileges,  all  lands,  shops,  machinery, 
fixtures,  depots,  stations,  water  sta- 
tions, houses,  buildings,  structures, 
improvements,  tenements,  heredita- 
ments of  whatever  kind  and  descrip- 
tion, wherever  situate,  pertaining  to 
the  operation  and  maintenance  and 
renewal  of  the  said  railroads,  which 
were  then  held,  leased  or  owned  by  the 
Central  Company,  or  which  may  at  any 
time  hereafter  during  the  term  of  said 
demise  be  acquired  by  the  Central  Com- 
pany for  railroad  purposes  at  the 
request  of  the  Port  Reading  Company, 
pursuant  to  the  betterment  clause  of 
the  said  lease,  together  with  all  the 
ferries  and  rights  of  ferriage  then  be- 
longing to  or  which  might  thereafter 
be  required  for  the  purposes  aforesaid 
by  the  Central  Company,  and  all  engines, 
stationary  and  locomotive,  cars,  ten- 
ders, trucks  and  other  rolling  stock, 
tools,  implements,  machinery  and  per- 
sonal property  of  every  kind  and 
description,  in  use  or  intended  or 
adapted  for  use,  upon  or  about  the 
railroad  premises  demised,  or  the  busi- 


ness thereof,  including  ferry-boats, 
steamboats,  tugs,  floats,  barges  and 
other  vessels,  belonging  to  the  Central 
Company."  And  it  was  therein  declared 
to  be  the  intention  and  agreement  of 
said  corporate  railroad  parties  "  that  all 
cars  and  other  rollingstock  then  used  by 
or  in  the  possession  of  the  Central  Com- 
pany under  the  terms  of  any  car  trust, 
should,  when  and  so  soon  as  they 
should  become  the  property  of  the  Cen- 
tral Company,  and  to  the  extent  of 
the  interest  of  the  Central  Company 
therein,  be  included  in  the  terms  of  the 
said  lease,  and  all  rights,  benefits  and 
privileges  of  any  nature  whatsoever 
then  enjoyed,  or  which  might  there- 
after be  enjoyed  by  the  Central  Com- 
pany, relating  and  pertaining  to  the 
demised  property,  together  with  all 
rights,  powers,  franchises,  other  than 
the  franchise  of  being  a  corporation, 
and  privileges  which  might  then,  or  at 
any  time  thereafter,  during  the  afore- 
said term,  be  lawfully  exercised  or 
enjoyed  in  or  about  the  use,  manage- 
ment, maintenance,  renewal,  exten- 
sion, alteration  or  improvement  of  the 
railroad's  premises,  or  appurtenances, 
be  demised,  excepting  and  reserving 
nevertheless  out  of  the  demised  prem- 
ises a  certain  building  in  the  city  of 
A^ew  York,  at  the  corner  of  Liberty  and 
West  streets,  known  as  '  The  Central 
Building,'  and  all  other  real  estate 
owned  or  held  by  the  said  Central  Com- 
pany not  adjacent  to  said  railroads,  or 
if  adjacent,  not  used  or  required  for 
the  purposes  of  the  business  of  the 
demised  railroads  and  their  appurte- 
nances; providing,  however,  that  all 
real  estate  included  in  the  lease,  but  not 
then  personally  used  for  railroad  pur- 
poses although  forming  part  of  the 
demised  premises  and  remaining  in 
the  possession  of  the  Central  Company, 
and  the  income  of   any   parcels  which 


582 


Volume  5. 


6403. 


CORPORA  TIONS. 


6403. 


And  your  informant  further  shows  unto  your  honor,  that  the 
said  indenture  of  lease  contains  a  large  number  of  covenants 
relating  to  matters  of  detail  between  the  said  corporations  which 
cannot  be  conveniently  set  -forth  at  large  in  this  information, 
and  for  the  particulars  of  the  said  indenture  of  lease,  and  the 
covenants  and  demises  therein  contained,  your  informant  prays 
leave  to  refer  to  a  copy  of  the  said  lease,  which  your  informant 
has  appended  to  this  information,  and  which,  copy  was  fur- 
nished to  your  informant  for  his  official  use  by  the  counsel  of  the 
said  lessor  and  lessee  corporations  to  this  informant. 

15.  And  your  informant  further  shows  unto  your  honor,  that  in 
the  pretended  performance  of  said  lease  the  said  the  Central  Rail- 
road Company  of  Neiv  Jersey  has  delivered  into  the  possession  of  the 
Port  Reading  Railroad  Company  the  actual  possession  of  all  the  rail- 
roads enumerated  in  the  said   indenture  of  lease  both  within  and 


might  by  lease  or  otherwise  produce 
income,  remaining  after  payment  of 
taxes  on  such  parcels,  should  belong  to 
the  Central  Company  until  required  for 
railroad  purposes,  and  when  so  re- 
quired, the  possession  thereof  should 
be  delivered  over  to  the  Port  Reading 
Company,  who  should  thereafter  use 
and  enjoy  the  same  under  the  said 
lease.  And  in  consideration  of  said 
demise,  the  Port  Reading  Company 
covenanted  to  pay  as  rent  for  said  de- 
mised premises:  A.  All  interest,  divi- 
dends, rentals,  guarantees,  and  all 
other  charges  which  the  Central  Rail- 
road Company  was  then,  or  might  at 
any  time  thereafter  be  obliged  in  any 
manner  to  pay,  which  sums  should  be 
paid  in  equal  monthly  instalments 
during  the  said  term,  on  the  first  day 
of  each  month,  and  it  was  provided 
that  the  first  payment  for  the  year 
189-?  should  be  made  on  theyfrj/day  of 
February,  iSg^,  and  a  further  sum  in 
each  and  every  year  which  should  be 
equal  to  sevfn  per  centum  per  annum 
upon  the  then  present  outstanding  capi- 
tal stock  of  the  Central  Company,  in- 
cluding as  such  outstanding  stock  any 
stock  thereafter  issued  under  the  obli- 
gations of  its  convertible  debenture 
bonds,  which  sums  should  be  paid  in 
equal  monthly  instalments  on  the  first 
day  of  each  month  in  each  year  during 
the  said  term,  commencing  on  ihe  first 
day  of  February,  189^,  and  a  further  sum 
equal  to  fi/ty  per  cent,  of  the  surplus 
earnings  over  the  seven  per  centum 
therein  above  stipulated  which  should 
have  accrued  to  the  Port  Reading  Com- 
pany during  each  calendar  year  of  the 
term  of  said  lease  from  all  the  trade, 
traffic,  business  and  income  of  the  de- 


mised premises;  provided,  that  no 
amount  should  be  paid  to  the  Central 
Company  as  its  share  of  such  surplus 
earnings  in  excess  of  a  sum  equal  to 
three  per  cent,  additional  upon  the  said 
outstanding  capital  stock  of  the  Central 
Company,  including  as  such  outstand- 
ing stock  any  stock  thereafter  issued 
under  the  obligations  of  its  convertible 
debenture  bonds  thereinbefore  men- 
tioned, and  payment  of  this  last 
mentioned  amount  should  be  made  in 
one  annual  payment  at  the  end  of 
each  year  during  said  term,  the  first 
payment  to  be  made  on  \.\i^  first  day 
ol  January,  189J,  and  annually  there- 
after on  each  first  day  of  January. 
And  the  Port  Reading  Company,  in 
and  by  the  said  indenture  of  lease, 
and  during  the  continuance  of  the 
term  thereby  demised,  assumed  the 
payment  of  and  covenanted  punc- 
tually and  faithfully  to  pay  all  taxes 
and  assessments  upon  the  capital  stock 
of  the  Central  Company,  upon  the 
yearly  payments  therein  agreed  to  be 
made  by  the  Port  Reading  Company  to 
the  Central  Company,  and  upon  the 
dividends  declared  and  paid  by  the 
Central  Company  to  its  stockholders 
out  of  the  said  yearly  rent,  for  the 
payment  or  collection  of  which  taxes 
or  assessments  the  Central  Company 
would  otherwise  be  liable  or  account- 
able under  any  lawful  authority  what- 
ever; provided,  that  the  Port  Reading 
Company  should  not  be  liable  or  re- 
sponsible for  taxes  or  assessments  on 
any  dividends  or  part  of  a  dividend 
paid  by  the  Central  Company  out  of  any 
other  funds  than  the  aforesaid  yearly 
rent." 


583 


Volume  5. 


6403.  CORPORA  TIONS.  6403. 

without  this  state,  and  all  its  rolling  stock,  locomotives,  freight  and 
passenger  cars  and  all  the  property  indispensable  in  the  operation  of 
the  said  railroads,  and  has  actually  surrendered  to  the  said  Port 
Reading  Railroad  Company  the  enjoyment  and  use  of  all  its  corporate 
franchises  granted  to  it  in  and  by  the  aforesaid  charter  of  tlie  Central 
Railroad  Company  of  Ne^v  Jersey  and  the  supplements  thereto  herein- 
before set  forth  and  referred  to,  and  that  the  Central  Railroad 
Company  of  New  Jersey  has  absolutely  stripped  itself,  so  far  as  it  has 
been  able  to  do  so,  of  all  the  franchises,  powers,  privileges  and  prop- 
erty indispensable  in  the  performance  of  its  duties  to  the  state  of 
New  Jersey  and  to  the  inhabitants  thereof,  under  its  aforesaid  charter 
and  the  supplements  thereto,  and  is  absolutely  unable  to  discharge 
or  perform  in  any  wise  any  of  the  public  duties  which  by  virtue  of 
the  said  charter  and  supplements,  it  owes  to  the  state  of  New  Jersey 
and  the  inhabitants  thereof,  and  to  the  public,  and  that  the  said  the 
Central  Railroad  Company  of  Ne7ii  Jersey,  by  force  of  the  premises,  is 
now  absolutely  unable  to  perform  any  of  its  corporate  duties. 

16.  And  your  informant  further  shows  unto  your  honor,  that  the 
said  pretended  indenture  of  lease  is  not  a  bona  fide  indenture  of 
lease,  but  was  intended  by  both  the  said  railroad  corporations  to  be 
a  mere  cover  or  means  by  which  to  carry  out  and  effect  the  transfer 
of  the  actual  exercise  and  enjoyment  of  the  corporate  franchises  of 
the  Central  Railroad  Company  of  New  Jersey  to  the  Philadelphia  and 
Reading  Railroad  Company,  a  foreign  corporation  created  by  the  state 
of  Pennsylvania,  and  to  transfer  the  railroads,  franchises  and  rolling 
stock,  engines,  cars  and  other  property  set  forth  in  the  said  pretended 
lease,  into  the  possession  and  enjoyment  of  the  said  the  Philadelphia 
and  Reading  Railroad  Company,  and  to  turn  over  to  the  said  last  men- 
tioned company  the  actual  operation  of  the  said  railroads,  and  the 
carrying  on  of  all  the  business  of  the  said  the  Central  Railroad  Company 
of  New  Jersey,  and  the  enjoyment  of  all  the  corporate  franchises, 
privileges  and  powers  of  the  Central  Railroad  Company  of  New  Jersey, 
and  the  performance  of  all  the  public  duties  which  it  owed  and  owes 
to  the  state  of  New  Jersey  and  inhabitants  thereof  and  to  the  public. 

17.  And  your  informant,  in  fact,  informs  your  honor,  that  it  never 
was  intended  by  the  Central  Railroad  Company  of  New  Jersey  to 
demise  and  let  its  corporate  franchise,  powers,  privileges  and  prop- 
erty to  the  Port  Reading  Railroad  Company,  but  in  fact  to  demise  and 
let  the  same  to  the  Philadelphia  and  Reading  Railroad  Company;  and 
that  this  same  intent  was  likewise  held  by  the  said  Port  Reading 
Railroad  Company  and  the  Philadelphia  and  Reading  Railroad  Com- 
pany, and  that  the  real  intent  of  the  said  parties  was  before  the 
pretended  making  of  the  said  pretended  lease,  by  other  and  further 
instruments,  to  immediately  transfer  the  term,  granted  by  said  lease, 
and  all  the  demised  corporate  powers  and  property,  to  the  Philadel- 
phia and  Reading  Railroad  Company;  and  that  in  fact  the  Central  Rail- 
road Company  of  New  Jersey  absolutely  refused  to  execute  the  said 
pretended  lease,  hereinbefore  set  forth,  to  the  Port  Readitig  Railroad 
Company,  until,  Ijy  other  and  further  instruments  duly  executed  for 
that  purpose  between  the  said  three  corporations,  the  said  term 
granted  in  said  lease,  and  the  payments  of  rent  reserved  thereby, 

584  Volume  5. 


6403.  CORPORATIONS.  6403. 

should  be  in  fact  passed  to,  and  be  assumed,  together  with  the  posses- 
sion of  all  the  demised  corporate  powers,  privileges  and  property,  to 
the  Philadelphia  and  Reading  Railroad  Company,  and  that  at  and  before 
the  execution  of  the  said  pretended  lease  to  \.\it.Port  Reading  Railroad 
Company,  the  instruments  necessary  to  effect  said  intent  and  purpose 
of  all  the  parties  were  prepared  and  actually  executed  to  effect  such 
result,  and  to  substitute  the  Philadelphia  and  Reading  Railroad  Com- 
pany in  the  place  of  the  Port  Reading  Railroad  Company,  one  of  which 
instruments  is  hereinafter  set  forth  and  a  copy  of  which  is  appended 
to  this  information,  and  to  which  your  informant  begs  leave  particu- 
larly to  refer,  which  copy  was  furnished  to  your  informant  for  official 
use  by  counsel  of  said  companies. 

1 8  And  your  informant  further  shows  unto  your  honor,  that  the 
Philadelphia  and  Reading  Railroad  Company  is  a  railroad  corporation 
of  the  state  of  Pennsylvania,  and  that  neither  its  property  nor  fran- 
chises, nor  the  persons  of  its  president  and  directors  are  within  the 
jurisdiction  of  this  state,  and  that  the  state  of  New  Jersey  would 
have  no  practical  means  of  enforcing,  through  its  courts,  the  due  per- 
formance of  the  public  duties  owing  by  the  Central  Railroad  Company 
of  New  Jersey  to  the  state,  its  inhabitants  and  the  public,  either  as 
against  the  Central  Railroad  Company  itself  or  against  its  actual  lessee, 
the  Philadelphia  and  Reading  Railroad  Company,  in  case  the  said  lease 
and  other  instruments  should  be  construed  to  be  valid  and  effectual 
in  law,  but  that  the  state  of  New  Jersey  would  be  wholly  without 
redress  in  the  premises. 

19.  And  your  informant  further  shows  unto  your  honor,  that  the 
Philadelphia  and  Reading  Railroad  Company  is  very  largely  engaged 
in  the  business  of  mining  and  selling  coal.  That  it  is  the  owner  of 
the  capital  stock  of  the  Philadelphia  and  Reading  Coal  and  Iron  Com- 
pany, in  whose  name  it  holds  and  owns  very  large  tracts  of  territory, 
containing  very  large  deposits  of  anthracite  coal,  in  the  state  of -P<r««- 
sylvania;  and  also  is  the  owner  of  the  capital  stock  of  other  coal 
companies  in  like  position,  and  that  by  means  of  its  ownership  of 
said  stock  and  coal  lands,  the  said  the  Philadelphia  and  Reading  Rail- 
road Company  is  the  largest  miner,  producer  and  seller  of  anthracite 
coal  in  the  United  States;  and  that  before  the  execution  of  the  said 
pretended  lease  and  the  instruments  before  mentioned,  the  said  the 
Philadelphia  and  Reading  Railroad  Company  was  a  competing  coal 
miner,  owner  and  seller  and  dealer,  in  anthracite  coal,  producing  and 
selling  the  greatest  number  of  tons  of  anthracite  coal  which  were 
produced  and  sold  by  any  concern  in  the  anthracite  coal  business  in 
the  United  States;  and  that  the  Easton  and  A  mboy  Railroad  Company, 
which  is  owned  by  the  Lehigh  Valley  Railroad  Company,  a  corporation 
of  Pennsylvania,  and  through  its  connection  with  the  said  last  men- 
tioned company,  which  was  also  a  very  large  owner  of  the  anthracite 
coal  territory  of  the  state  of  Pennsylvania,  was,  as  the  agent  of,  or  in 
connection  with,  the  Lehigh  Valley  Railroad  Company^  very  largely 
engaged  in  the  business  of  mining,  transporting  and  selling  coal,  and 
that  its  revenues  and  success,  and  the  revenues  and  prosperity  of  the 
Lehigh  Valley  Railroad  Company  were  almost  entirely  dependent  upon 
the  successful  transaction  of  their  said  coal  business,  and  they  were 

585  Volume  5. 


6403.  CORPORATIONS.  6403. 

active  competitors  with  the  Philadelphia  and  Reading  Railroad  Com- 
pany^ in  the  production,  transporting  and  selling  of  coal.  And  that 
the  said  the  Central  Railroad  Company,  through  its  ownership  of  the 
coal  lands  of  the  Lehigh  and  Wilkesbarre  Coal  Company,  and  of  various 
other  coal  lands,  was  the  owner  of  a  very  large  tract  of  anthracite 
coal  territory,  in  the  state  of  Pentisylvafiia,  and  dependent  mainly  for 
its  revenues  and  success  upon  its  competing  business  with  the  Easton 
and  Amboy  Company  and  the  Philadelphia  and  Reading  Railroad  Com- 
pany in  the  said  coal  business. 

And  your  informant  in  fact  shows  that  the  said  three  corporations, 
the  Philadelphia  and  Reading  Railroad  Company,  the  Eastoti  and  Amboy 
Railroad  Compatiy  and  the  Central  Railroad  Company  of  JVew  Jersey, vitre. 
and  have  for  many  years  past  been  in  active  and  continual  competi- 
tion with  each  other  in  the  coal  business,  and  that  the  intent  of  all 
the  parties  to  the  pretended  instrument  of  lease,  and  other  instru- 
ments hereinbefore  set  forth,  was  by  said  instruments  and  by  further 
lease  or  other  instruments  to  combine  the  said  three  corporations  in 
the  conduct  of  the  said  coal  business,  and  to  put  an  end  to  all  com- 
petition between  them.  And  your  informant  in  fact  shows  that  by 
reason  of  the  ownership  and  control  by  the  said  three  corporations  of 
the  said  anthracite  coal  lands  in  the  state  of  Pennsylvania,  they  are  in 
fact  the  owners  and  controllers  of  at  least  sixty  per  cent,  of  the 
entire  anthracite  coal  field  of  the  United  States  advantageously 
accessible  by  the  inhabitants  of  the  state  of  New  Jersey;  and  that  a 
supply  of  anthracite  coal  at  fair  prices  i^  an  absolute  necessity  on  the 
part  of  every  householder  in  the  state  of  New  Jersey,  it  being  the 
most  convenient  and  most  economical  fuel  for  all  the  households  of 
t.:e  said  state,  and  that  the  intent  of  the  said  three  corporations  in  con- 
ceiving and  in  executing  the  said  pretended  lease,  and  the  instruments 
before  referred  to,  was  and  is  to  control  the  market  in  the  state  of 
New  Jersey  for  the  supply  and  sale  to  the  inhabitants  of  the  state  of 
New  Jersey  of  anthracite  coal,  and  to  fix  the  price  thereof  at  such 
rates  as  will  be  most  profitable  to  the  said  corporations.  And  your 
informant  shows  that  all  these  proceedings  and  acts  on  the  part  of 
the  Philadelphia  and  Reading  Railroad  Compatiy,  the  Port  Reading  Rail- 
road Company  and  the  Central  Railroad  Company  of  New  Jersey  tend 
directly  to  a  monopoly  of  the  trade  in  anthracite  coal  in  the  state  of 
New  Jersey  and  to  the  manifest  oppression  of  the  inhabitants 
thereof. 

20.  And  your  informant  shows,  that  in  the  execution  of  the  scheme 
aforesaid,  and  for  the  accomplishment  of  the  result  aforesaid,  and  in 
order  to  assure  to  the  Central  Railroad  Company  of  New  Jersey  its  due 
share  in  the  proportion  of  the  profits  arising  and  to  arise  therefrom, 
and  it  being  well  known  both  to  the  Central  Railroad  Company  of  New 
Jersey  and  the  Philadelphia  and  Reading  Railroad  Company  that  the 
Port  Reading  Railroad  Company  was  wholly  incompetent  to  perform 
the  covenants  for  the  payment  of  money  which  were  contained  iu. 
the  said  pretended  lease,  and  was  wholly  incompetent  and  unable  to 
exercise  the  corporate  franchises,  powers  and  privileges  of  the  said 
the  Central  Railroad  Company  of  New  Jersey,  or  to  perform  the  pub- 
lic duties  which  said  last  mentioned  company  owed  to  the  state  of 

686  Volume  5. 


6403. 


CORPORA  TIONS. 


6403. 


Neiv  Jersey,  its  inhabitants  and  the  public,  the  said  corporations 
agreed  to  substitute  for  said  Port  Reading  Railroad  Company  a  cor- 
poration more  able  to  perform  such  covenants  and  duties  aforesaid,  and 
at  and  before  the  pretended  execution  of  the  pretended  lease  from  the 
Central  Railroad  Company  of  New  Jersey  to  the  Port  Reading  Railroad 
Company,  the  Central  Railroad  Company  of  New  Jersey,  the  Philadelphia 
and  Reading  Railroad  Company,  and  the  Port  Reading  Railroad  Com- 
pany entered  into  and  mutually  executed  and  delivered  "a  certain  con- 
tract and  agreement  made  on  the  tivelfth  day  of  February,  a.  d. 
eighteen  hundred  and  ninety-two,  in  and  by  which  said  agreement  it 
was  recited  that  (^Here  were  set  out  recitals  of  agreement).^ 


1.  The  recitals  in  the  agreement  re- 
ferred to  in  the  text  were  as  follows: 
"  Whereas  thelinesof  railroads  owned, 
leased  and  operated  by  the  parties 
thereto  were  connected  at  several  points 
in  the  states  of  Pennsylvania  and  iVeiu 
Jersey,  and  formed  continuous  lines  of 
railroad  between  numerous  cities  of 
commercial  importance,  capable  of  pro- 
ducing large  contributions  of  freight 
and  passenger  traffic  to  the  lines  of  said 
companies,  if  worked  as  continuous 
lines;  and  whereas,  the  Central  Com- 
pany and  the  Fort  Reading  Railroad 
Company  had  negotiated  for  a  lease  of 
all  the  lines  of  railroad  of  the  Central 
Company,  whether  owned  by  it  or  ac- 
quired by  virtue  of  any  lease  to  the 
Port  Reading  Company  for  the  term  and 
period  of  nine  hundred  and  ninety-nine 
years,  upon  the  payment  of  the  annual 
rentals,  and  the  performance  of  the  cer- 
tain covenants,  agreements  and  stipu- 
lations contained  in  the  said  proposed 
lease,  a  copy  whereof  was  thereto  at- 
tached and  made  a  part  thereof,  which 
said  lease  the  Central  Company  was 
willing  to  execute  and  deliver  if  the 
Reading  Ccmpany  should  guarantee  the 
prompt  and  punctual  payment  to  the 
Central  Company  by  the  Port  Reading 
Company  of  the  rentals  reserved  in  the 
said  lease  as  and  when  the  same  should 
become  due  and  payable,  and  should 
also  guarantee  the  full  and  faithful  per- 
formance by  the  Port  Reading  Company 
of  all  the  covenants,  stipulations  and 
agreements  contained  in  the  said  lease 
by  it,  the  said  Port  Reading  Company,  to 
be  kept  and  performed  on  its  part,  and 
the  Central  Company  was  willing  to  exe- 
cute and  deliver  the  said  lease  upon 
the  execution  of  this  contract  by  the 
Reading  Company,  whereby  there  would 
be  assured  to  the  said  lines  of  the  C<«- 
tral  Company,  in  addition  to  the  traffic 
now  tributary  thereto,  such  an  increase 
of  the  traffic  thereon  as  would  secure  to 


the  Port  Reading  Company  sufficient  reve- 
nue to  meet  and  pay  the  said  rentals, 
and  perform  the  covenants  and  stipula- 
tions contained  in  the  said  lease;  and 
whereas,  in  consideration  of  the  benefits 
and  advantages  to  be  derived  there- 
under from  the  use  of  the  terminal 
properties  and  facilities  of  the  Central 
Company  so  to  be  leased  to  the  Port 
Reading  Company,  and  from  the  inter- 
change of  traffic  therein  provided  for 
the  Reading  Company  was  willing  to 
guarantee  to  the  Central  Company  the 
payment  by  the  Port  Reading  Company 
of  the  rentals  reserved  in  the  said  pro- 
posed lease,  and  the  performance  by 
the  said  Port  Reading  Company  of  all  the 
covenants,  stipulations  and  agreements 
of  the  said  lease  by  it  to  be  kept  and 
performed,  and  also  all  of  the  cove- 
nants, stipulations  and  agreements 
therein  contained  and  written  to  be 
kept  and  performed  by  the  said  Port 
Reading  Company;  therefore,  in  con- 
sideration of  the  premises  and  of  the 
mutual  covenants  and  agreements  in 
said  contract  or  agreement  contained, 
and  as  well  for  and  in  consideration  of 
the  sum  of  one  dollar  by  each  of  the 
parties  thereto  paid  to  each  of  the  other 
parlies  thereto,  the  said  corporate  par- 
tics  agreed  and  covenanted  among 
other  things  —  First  that  the  Central 
Company  and  the  Port  Reading  Company 
should  Immediately  execute  and  deliver 
the  said  alleged  lease  of  the  railroads 
and  other  property  of  the  Central  Com- 
pany, a  copy  of  which  is  attached  to 
the  said  contract  or  agreement,  and 
that  the  possession  and  control  of  the 
railroads  and  other  property  of  the 
Central  Company  so  leased  should  forth- 
with be  taken  by  the  Port  Reading 
Company.  Second,  that  the  Reading 
Company  should  and  would  guarantee, 
and  thereby  did  guarantee,  unto  the 
Central  Company  the  prompt  payment 
by   the  Port  Reading  Company  to   the 


687 


Volume  5. 


6403.  CORPORATIONS.  6403. 

And  the  said  contract  or  agreement  contained  various  other  cove- 
nants and  agreements  in  detail,  which  are  too  voluminous  to  set 
forth  in  this  information,  but  your  informant  has  appended  to  this 
information  a  copy  of  the  said  articles  of  contract  and  agreement, 
fully  setting  forth  all  the  mutual  covenants,  contracts  and  agreements 
of  the  said  parties  thereto,  to  which  your  informant  begs  leave  par- 
ticularly to  refer. 

And  your  informant  shows  that  the  Reading  company  had  no  power, 
either  by  the  laws  of  this  state  or  by  its  charter  or  otherwise,  to 
make  said  agreement,  or  to  give  said  guarantee  to  said  Central  com- 
pany, nor  did  said  Central  company  have  any  power  to  accept  or 
receive  the  same,  and  that  such  agreement  and  guarantee  and  each  of 
them  were  and  are  ultra  vires  of  the  Reading  company  and  void,  and 
were  and  are  likewise  ultra  vires  of  the  Central  company,  and  for  that 
reason  also  void. 

21.  And  your  informant  further  shows  unto  your  honor,  that  in  and 
by  an  act  of  the  legislature  of  the  state  'of  New  Jersey^  approved 
April  4,  187 1  {Rev.,  p.  1096'),  it  is  enacted  that  {Here  was  set  out  sub- 
stance of  enactment'),'^  and  that  the  said  act  still  remains  in  effect  and 
unrepealed ;  and  that  by  the  laws  of  this  state  the  aforesaid  alleged  lease 
so  made  and  executed  by  the  Central  Railroad  Cotnpatiy  of  New  Jersey 
is  invalid  and  of  no  effect  until  the  execution  of  the  same  shall  have 
been  acknowledged  or  proved  as  conveyances  of  land  in  this  state 
are  required  to  be  acknowledged  and  proved;  and  that  the  said 
alleged  lease  is  also  invalid  and  of  no  effect  unless  the  parties  thereto 
shall  have  lodged  the  same  with  the  secretary  of  state  for  record 
within  thirty  days  from  the  date  of  the  execution  thereof.  And  your 
informant  in  fact  shows  unto  your  honor  that  the  said  alleged  lease 
has  never  been  acknowledged  or  proved  as  conveyances  of  land  in 
this  state  are  required  by  law  to  be  acknowledged  or  proved,  and 
that  the  said  indenture  of  lease  has  never  been  lodged  with  the  sec- 

Central  Company  of   the  various   sums  franchise  privileges  or  any  part  thereof 

fixed  and  appointed  in  said  lease  to  be  of  any  company  or  organization,  incor- 

paid,  and  the  said  Reading  Company  did  porated   by  or  under  the   laws  of  this 

thereby  guarantee  unto  the  G-zzj^rrt/ Ow-  state,    shall    be    acknowledged    or   ap- 

pany  that   the  Port  Reading   Company  proved  as  conveyances  of  lands  in  this 

should  at  all  times  during  the  continu-  state  are  authorized  to  be  acknowledged 

ance  of  the  said  lease  fully  and  faith-  or  approved,  and  shall  be  recorded  in 

fully  keep  and  perform  each  and  every  the  office  of  the  secretary  of  state  with- 

of  the  covenants,  agreements  and  stipu-  in    two    months    after     the    execution 

lations    contained    therein    to    be    kept  thereof,  at  the  proper  cost  of  the  par- 

and  performed  by  the  said /'^r^i?^aa'/«^  ties  thereto;  and  unless   such   contract 

Company,  and  should,  during  the  con-  or  agreement  is  lodged  with  the  secre- 

tinuance  of  said  lease  and  of  the  said  tary  of   state    for   record  within   thirty 

contract,  fully  and  faithfully  keep  and  days   from   the   date  of    the   execution 

perform  on  its  part  each  contract,  cove-  thereof,  the  same  shall  become  invalid 

nant    and    stipulation    in   said    agree-  and  of  no  effect,  and  copies  of  the  said 

ment  to  be  kept  and  performed  by  it,  record,  duly  certified  by  the  secretary 

the  said  Port  Reading  Company."  of  state,  shall  be  received  in  evidence  in- 

1.  The  enactment  referred  to  in  the  text  any  court  of  this  state,  and  be  as  good, 

is  to  the  effect  that   "all  contracts  or  effectual  and  available  in  law  as  if  the 

agreements  for  the  sale,  letting,  leas-  original  contractor  agreement  was  then 

ing,  consolidating,  merging  or  in  any  and  there  produced." 
manner  disposing  of  or  transferring  the 

588  Volume  5. 


6403.  CORPORATIONS.  6403. 

retary  of  state  for  record  within  thirty  days  from  the  date  of  the 
execution  thereof;  and  has  never,  in  fact,  been  recorded  by  the  said 
secretary  of  state,  although  more  than  thirty  days  have  now  elapsed 
from  the  date  of  the  execution  thereof,  and  that  the  said  indenture 
of  lease  is  therefore,  by  the  prescriptions  of  the  statute  aforesaid, 
absolutely  invalid  and  of  no  effect. 

22.  And  your  informant  further  shows  unto  your  honor,  that 
under  the  pretended  authority  of  the  said  alleged  indehture  of  lease, 
and  of  the  tripartite  agreement  hereinbefore  set  forth,  the  said  the 
Philadelphia  atid  Reading  Railroad  Company,  which  is  a  foreign  cor- 
poration created  by  the  state  of  Pennsylvania,  has  actually  entered 
into  the  possession  of,  and  is  in  fact  now  in  possession  of  all  the 
railroads,  branches,  etc.,  of  the  Central  Railroad  Company  of  New 
Jersey  specifically  set  forth  in  the  said  pretended  indenture  of  lease, 
and  has  entered  upon,  and  is  now  actually  in  the  enjoyment  and 
exercise  of,  and  now  actually  possesses  all  the  property,  railroads 
and  corporate  powers,  privileges  and  franchises  of  the  said  the  Cen- 
tral Railroad  Company  of  Ne^v  Jersey  and  is  operating  the  same;  and 
that  the  said  the  Central  Railroad  Company  of  New  Jersey  has  no 
actual  possession  of  any  of  its  corporate  property,  franchises,  powers 
and  privileges,  excepting  that  of  the  franchise  to  be  a  corporation, 
and  that  the  Central  Railroad  Company  has  fully  ceased  to  exercise  its 
corporate  powers,  privileges  and  franchises,  and  to  manage  and 
operate  any  of  the  said  railroads  and  branches,  etc.,  specifically  set 
forth  in  the  said  alleged  indenture  of  lease,  or  to  perform  or  dis- 
charge any  of  the  public  duties  which,  under  and  by  force  of  the  said 
charter  and  the  supplements  hereto,  it  owes  to  the  state  of  N'ew 
Jersey,  and  to  the  inhabitants  thereof,  and  to  the  public,  but  has 
wholly  surrendered  the  same  to  the  Philadelphia  and Readi: g  Railroad 
Company  in  the  execution  of  the  intent  and  agreement  hereinbefore 
stated,  which  was  entered  into  and  contrived  between  the  three  cor- 
porations aforesaid  as  hereinbefore  stated,  and  to  effectuate  which 
the  said  pretended  lease  and  the  said  tripartite  agreement  and  other 
instruments  to  your  informant  unknown,  were  conceived  and  exe- 
cuted; and  the  said  the  Philadelphia  and  Reading  Railroad  Company  is 
now  engaged  in  the  practical  execution  of  the  said  scheme  and  con- 
trivance agreed  upon  between  the  three  corporations  for  the  purpose 
of  carrying  into  effect  a  monopoly  of  the  anthracite  coal  business  in 
the  state  of  New  Jersey,  and  with  the  intent  to  artificially  increase 
the  price  of  coal  as  hereinbefore  stated  to  your  honor. 

23.  And  your  informant  in  fact  shows  unto  your  honor,  that  the 
said  the  Philadelphia  and  Reading  Railroad  Company,  with  the  intent 
and  for  the  purpose  of  carrying  into  effect  the  said  agreement  for  a 
monopoly  of  the  said  anthracite  coal  trade,- and  of  artificially  and 
arbitrarily  increasing  the  profits  to  be  derived  from  the  said  business 
in  the  said  state,  to  the  oppression  of  the  inhabitants  thereof,  has 
actually  increased  the  prices  of  anthracite  coal,  and  is  now  selling 
anthracite  coal  of  various  classes  at  greatly  increased  rates  per  ton 
beyond  the  prices  which  were  exacted  for  the  same  class  and  quality 
of  anthracite  coal  at  and  before  the  entering  into  the  said  scheme  for 
a  monopoly,  and  the  execution  and  delivery  of  the  said  alleged  lease, 

589  Volume  5. 


6403.  CORPORATIONS.  6403. 

and  the  said  tripartite  articles  of  agreement,  to  wit:  {Here  were  set 
out  facts  showing  the  increased  selling  price  of  coal.') 

And  your  informant  further  shows  unto  your  honor,  that  the 
period  of  the  year  between  the  t^venty-third  ^a.y  oi  March,  iS92,  and 
the  second  day  of  May,  iS92,  is  a  period  in  which  in  the  natural 
course  of  production  and  consumption  the  wholesale  price  of  coal 
ordinarily  is  materially  reduced,  but  during  the  period  aforesaid  it 
has  been  arbitrarily  increased  by  means  of  the  combination  afore- 
said, and  the  instruments  aforesaid,  an  average  oi  fourteen  cents  per 
ton. 

And  your  informant  shows  unto  your  honor,  that  the  object  and 
purpose  in  making  the  lease  of  the  Central  Railroad  to  the  Port  Read- 
ing Railroad  was  to  restore  the  price  of  coal  to  the  high  figures  which 
existed  before  the  competition  between  the  various  coal  roads  had 
affected  the  market.  The  manifest  purpose  was  to  prevent  natural 
and  healthy  competition  between  the  various  coal  roads  and  coal  com- 
panies, which  benefits  the  public  and  regulates  the  market.  On  page 
eight  of  the  report  of  the  president  and  managers  to  the  stockholders 
of  the  Philadelphia  and  Reading  Railroad  Company  (a  copy  of  which 
report  is  attached  to  this  information)  the  president  and  managers 
say :  {quotation  concerning  company's  coal  traffic. ) 

And  your  informant  shows  unto  your  honor,  that  since  the  Read- 
ing Railroad  system  has  been  operating  the  Central  Railroad  of  New 
Jersey  and  its  branches,  with  the  other  coal  roads  and  coal  com- 
panies which  belong  to  said  combination,  the  price  of  coal  has 
increased  from  five  to  twenty-five  cents  per  ton  to  the  wholesale 
dealers,  varying  with  the  different  grades,  and  it  is  universally 
believed  and  stated  in  the  public  journals  that  the  price  is  to  be 
again  advanced  in  a  short  time,  and  the  retail  dealers  will  then  be 
obliged  tp  make  a  large  advance  to  the  consumers,  so  that  the  prices 
will  not  only  reach  the  maximum  before  the  large  production  and 
competing  transportation  reduced  the  price  in  x2>90  and  i89i, 
but,  the  control  being  in  the  power  of  the  combination,  effected 
by  the  lease  of  the  Central  to  the  Port  Reading,  it  will  have  no  limit 
but  the  necessities  of  the  various  coal  and  transporting  companies 
who  are  directly  or  indirectly  interested  in  the  combination. 

And  your  informant  avers  that  the  use  to  which  the  said  combi- 
nation has  been  put,  by  the  aforesaid  corporate  parties  thereto,  has 
been  to  arbitrarily  impose  upon  the  inhabitants  of  the  state  of  New 
Jersey  an  arbitrary  increase  of  price  in  the  article  of  anthracite  coal, 
which  is  a  necessary  of  life,  an  exaction  of  a  very  great  amount,  and 
amounting  in  the  aggregate  to  at  least  two  hundred  and  eighty  thou- 
sand doWsiVS  per  annum;  and  your  informant  in  fact  avers  that  that 
sum  of  money  will  be  exacted  from  the  people  of  the  state  of  New 
Jersey  at  the  mere  will  of  the  said  corporate  defendants,  acting 
through  the  Philadelphia  and  Reading  Railroad  Company. 

And  your  informant  further  informs  your  honor,  that  if  the  said 
corporate  defendants  be  permitted  still  further  to  prosecute  theii" 
design,  the  price  of  anthracite  coal  may  be  and  will  be  increased  by 
them  to  a  much  greater  extent,  and  that  there  will  be  no  limit  to  the 
further  exaction  of  the  said  corporate  defendants,  in  respect  to  the 

690  Volume  5. 


6403.  CORPORATIONS.  6403. 

price  of  anthracite  coal,  except  that  which  may  be  fixed  by  the  mere 
forbearance  of  the  said  corporate  defendants. 

And  your  informant  further  informs  your  honor,  that  he  is 
informed  and  believes  that  various  other  instruments  have  been 
executed  and  delivered  between  the  said  corporate  parties  thereto, 
or  between  the  said  corporate  parties  thereto  and  other  persons 
to  your  informant  unknown,  in  effectuating  and  carrying  out 
their  aforesaid  combination,  and  investing  the  possession  of  the 
corporate  powers,  franchises,  privileges  and  property,  and  the  use 
and  exercise  thereof  of  the  Central  Railroad  Company  of  New  Jersey,  in 
the  Philadelphia  and  Reading  Railroad  Company,  which  are  not  of  rec- 
ord or  within  the  state  of  Ne^v  Jersey,  and  not  accessible  to  your 
informant,  but  are  concealed  from  him  and  from  the  knowledge  of 
the  state  oi  Ne^v  Jersey,  and  he  prays  that  the  parties  defendant 
hereto  may  answer  this  averment  particularly,  and  may  set  forth  and 
append  to  their  answer  a  copy  of  all  and  every  instrument  or  con- 
tract, lease  or  otherwise,  which  has  been  executed  and  delivered 
between  the  said  corporate  defendants  or  between  them  or  other 
persons  whereby  or  whereunder  the  said  the  Philadelphia  and  Read- 
ing Railroad  Co7npany  claims  to  have  authority  to  possess  and  manage, 
directly  or  indirectly,  the  corporate  franchises,  powers  and  privi- 
leges, railroad  and  property  of  the  Central  Railroad  Company  of  New 
Jersey. 

24.  And  your  informant  further  shows  unto  your  honor,  that  by  an 
act  of  the  legislature  of  the  state  of  New  Jersey,  approved  May  2, 
1885,  and  entitled  "  An  Act  respecting  the  lease  of  railroads,"  it  was 
enacted  that  (^statement  of  enactments').^ 

25.  And  your  informant  informs  your  honor,  that  the  aforesaid 
indenture  of  lease,  purporting  to  have  been  made  and  executed  by 
the  Central  Railroad  Company  of  Netu  Jersey  to  the  Port  Reading  Rail- 
road Company,  was  contrived  and  agreed  upon  between  the  Central 

1.  The  enactment  referred  to  in  the  text  act  of  the  legislature,  passed  for  that 

was   to   the  effect  "  that   no   company  purpose,   nor  until  the   corporation  or 

*    *    *     should   have  power  to   lease  corporations,  person  or  persons,  parties 

its   road,    or    franchise,    or    any   part  to  such  proposed  lease,  union,  consoli- 

thereof,  to  any  foreign  corporation,  or  dation  or  merger,  should  first,  and  as 

to  any  resident  of  any  other  state,  or  a  condition  precedent  to  the  same,  file 

to  unite,  consolidate  or  merge  its  stock,  in  the  office  of  the  secretary  of  state  an 

property,    franchise   or    road,    or   any  agreement,    to    be    approved    by    the . 

part  thereof,  with  those  of  any  foreign  governor  and  attorney-general,  surren- 

corporation  or   resident   of   any   other  dering  to  the  state  all  rights  of  exemp- 

state    until  the    consent  of  the    legis-  tion  from  taxation,   and  all  privileges 

lature  of  this  state  should   have  been  and    advantages     arising    from     any 

first  obtained  thereto;  and  that  if  any  alleged      contract      establishing     any 

corporation  aforesaid  should  desire  to  special  mode  of  taxation   in  respect  to 

execute  such  lease  or  effect  such  union,  said  parties,  and  agreeing  further  that 

consolidation  or  merger,  it  should  sub-  such    lease,    union,    consolidation    or 

mit  a   draft  of  the  proposed  lease,  or  merger   should  not  in  any  wise  affect 

of  the  detailed  scheme  of  union,  con-  or  impair  the  right  of  the  stale  to  take 

solidation  or  merger,  as  the  case  might  the   property  of    such   parties   thereto 

be,  to  the  legislature  of  this  state  for  under  any  existing   law  of  the   state, 

its    consideration,   and  no  such  lease,  and  that  any  law  affecting  such  parlies 

union,  consolidation  or  merger  should  should  be  subject  to  alteration  or  repeal 

be  of  any   effect    whatever    until   the  by  the  legislature." 
same  should  have  been  approved  by  an 

691  Volume  5. 


6403.  CORPORATIONS.  6403. 

Railroad  Company  of  New  Jersey,  the  Port  Reading  Railroad  Company 
and  the  Philadelphia  and  Reading  Railroad  Company,  as  a  mere  cover 
and  nominal  compliance  with  the  laws  of  the  state  of  New  Jersey, 
but  with  the  intent  and  purpose  of  evading  and  committing  a  fraud 
upon  the  aforesaid  act  of  May  2,  1885,  and  to  transmit  to  the  Phila- 
delphia and  Reading  Railroad  Company  the  corporate  privileges  and 
franchises  of  the  Central  Railroad  of  New  Jersey,  diVid.  of  entrusting 
the  custody  and  enjoyment  thereof  and  the  management  and  opera- 
tion of  its  property  and  franchises  to  the  same,  without  first  obtaining 
the  assent  of  the  legislature  of  New  Jersey  to  such  transfer,  as 
required  by  the  aforesaid  act  of  May  2,  1885;  that  the  Port  Reading 
was  then  in  fact  owned  and  controlled  by  the  stockholders,  or  some 
of  them,  of  the  Philadelphia  and  Reading  Railroad  Company;  that  the 
original  stock  of  th.^  Port  Reading  Railroad  Company,  subscribed  under 
its  articles  of  incorporation,  was  subscribed  wholly  by  officers, 
directors,  agents  or  stockholders  of  the  Philadelphia  and  Reading 
Railroad  Company,  and  that  such  subscribers  took  their  said  shares  of 
capital  stock  and  hold  the  same  as  trustees  for  the  Philadelphia  ana 
Reading  Railroad  Company,  and  that  the  beneficial  use  of  said  capital 
stock  is  equitably  vested  in  the  said  the  Philadelphia  and  Reading 
Railroad  Company. 

26.  And  your  informant  further  informs  your  honor,  that  the  said 
the  Port  Reading  Railroad  Company,  so  far  as  the  same  has  been  con- 
structed, has  been  in  fact  constructed  with  moneys  furnished  by  the 
Philadelphia  and  Reading  Railroad  Company,  directly  or  indirectly; 
that  Albert  Foster,  James  M.  Landis,  IV.  H.  Blood,  F.  W.  Stone  and 
Charles  H.  Quarks,  each  and  every  one  of  whom  was  and  is  an  officer 
or  agent  of  the  Philadelphia  atid  Reading  Railroad  Co?fipany,  organized 
themselves  into  a  company  under  the  provisions  of  the  "Act  con- 
cerning corporations  of  the  State  of  New  Jersey,"  approved  April  7, 
1S75,  and  the  supplement  and  amendments  thereto,  under  the  name 
of  the  Port  Reading  Cofistruction  Company,  with  an  authorized  capital 
stock  of  $100,000,  on  or  about  the  third  day  of  November,  i890,  and 
that  the  actual  capital  stock  subscribed  for  and  paid  in  of  the  said 
authorized  capital  stock  was  subscribed  and  paid  as  follows:  {State- 
ment of  subscriptions^ ;  that  by  the  return  of  the  said  Port  Reading 
Construction  Company,  made  to  the  department  of  the  state  board  of 
assessors  of  New  Jersey,  for  the  year  \W2,  made  pursuant  to  the 
provisions  of  an  act  entitled  "  An  Act  to  provide  for  the  imposition 
of  state  taxes  on  certain  corporations,  and  for  the  collection  thereof," 
approved  April  18,  1884,  under  the  hand  of  Albert  Foster,  president 
of  the  said  the  Port  Reading  Railroad  Company,  it  was  therein  and 
thereby  certified  that  {statement  of  facts  certified')^  a  copy  of  which 

1.  The  return  referred  to  in  the  text  issued  was  two  thousand  dollars,  and 
certified  that  "  The  amount  of  the  that  the  business  address  of  said  corn- 
authorized  capital  stock  of  the  said  ^dL.ny  wa.?,  22-/ South  Fourth  street,  Phila- 
Port  Readirn;  Construction  Company  was  delphia.  Pa.,  which  is  the  address,  and 
one  hundred  thotisand  dollars,  divided  which  is  the  office,  of  the  Philadelphia 
into  two  thousand  shares,  of  -which  forty  and  Reading  Railroad  Company  ;  and  it 
shares  were  fully  paid,  and  that  none  of  is  further  certified  that  the  address  of 
said  shares  were  partially  paid,  and  Albert  Foster,  the  said  president,  is  also 
that  the  whole  amount  of  capital  stock  at  227  South  Fourth  street,  Philadelphia, 

592  Volume  5. 


6403.  CORPORATIONS.  6403. 

return  is  hereto  annexed,  to  which  your  informant  refers;  and  it 
further  appears  by  the  statement  of  the  said  Port  Reading  Railroad  Com- 
pany^ filed  in  the  department  of  state  of  said  state  of  Ntic  Jersey,  as 
required  by  an  act  of  the  legislature  approved  ^arch  8,  1877,  and 
which  statement  was  filed  on  the  fifth  day  of  May,  iSyi',  a  copy 
of  which  statement  is  hereto  annexed,  to  which  your  informant 
refers,  which  certifies  and  states  that  {statement  of  fact i  certified\^ 

27.  And  your  informant  further  informs  your  honor,  that  he  is 
informed  and  believes  that  certain  capital  stock,  and  all  of  the  capital 
stock  of  the  said  Port  Reading  Railroad  Company  was  issued  to  and 
nominally  became  the  property  of  the  said  Port  Reading  Construction 
Company,  except  the  shares  subscribed  to  and  paid  for  by  the  original 
incorporators,  and  that  all  of  the  said  shares  so  issued  to  the  Port 
Reading  Cofistruction  Company  are  held  by  the  said  corporation  as 
trustee  for  the  Philadelphia  and  Reading  Railroad  Company,  its  officers 
and  agents,  or  some  of  them,  and  that  all  moneys  that  have  been 
paid  to  the  Port  Reading  Construction  Company,  on  account  of  the 
work  of  constructing  the  said  Port  Reading  railroad,  have  been  paid 
and  disbursed  directly  or  indirectly  out  of  the  funds  of  the  Phila- 
delphia and  Reading  Railroad  Company,  and  that  at  the  time  the  said 
pretended  lease  was  executed  and  delivered  by  the  Central  Railroad 
Company  of  New  Jersey  to  the  Port  Reading  Railroad  Company,  the 
said  Central  Railroad  Company  and  its  officers  and  directors  had  full 
notice  and  knowledge  of  the  fact  that  the  Port  Reading  Railroad 
Company  was  in  reality  the  property  of  the  Philadelphia  and  Reading 
Railroad  Company,  and  that  the  pretended  organization  and 
existence  of  the  said  Port  Reading  Railroad  Company  was  a  mere 
contrivance  by  which,  under  cover  of  the  name  of  the  Port  Reading 
Railroad  Company,  the  Philadelphia  and  Reading  Railroad  Company 
was  to  build,  own  and  control  the  said  corporation  and  the  railroad 
being  constructed  thereunder;  and  was  the  equitable  owner  and  was 
furnishing  all  the  funds  necessary  for  the  organization,  construction, 
and  management  of  the  affairs  of  the  said  Port  Reading  Railroad 
Company,  and  that  it  was  because  of  such  knowledge,  and  because  of 
the  knowledge  that  the  said  Port  Reading  Railroad  Company  was 
without  means  and  without  pecuniary  responsibility,  that  the  Central 
Railroad  Company  of  New  Jersey  absolutely  refused  to  execute  the 
said  indenture  of  lease,  or  to  deliver  the  same,  until  the  Philadelphia 
and  Reading  Railroad  Company,  which  it  well  knew  to  be  the  party 
interested  in  and  under  the  said  lease  as  lessee,  had  first  executed 
the  contract  or  guarantee   hereinbefore  set  forth,  and   that    it  was 

which   is   the  office  of  the  Philadelphia  at    A'aighn's     Point    Ferry    House     in 

and  Reading:  Railroad  Company:'  Camden,  which  said  ferry  house  is  oc- 

1.  The  statement  referred  to  in  the  text  cupied  and   controlled    by    the   Phila- 

certified  thai  "the  officers   of  the  said  delphia  and  Peadint^  Railroad  Company, 

the  Port  Reading   Construction  Company  and    that  the    principal  office    of    said 

are,  president,  Albert  Foster;  secretary,  Port  Reading  Construction  Company  is  at 

fames    M.    Landis;    treasurer,    William  No.    227    South    Fourth    street,    Phila- 

A.    Church   each  and  all  of  whom  are  delphia,  which  is  also  the  office  of.  and 

officers  and  agents  of  the  Philadelphia  the  building  is  owned  and   controlled 

and  Reading  Railroad  Company,  2ini  that  by.  the  Philadelphia  and  Reading  Rati- 

the  principal    office  of  the  company  is  road  Company,  &s&Iovcs&\A: 

5  E.  of  F.  P.  -38.                          593  Volume  5. 


6403.  CORPORATIONS.  6403. 

never  intended  by  either  the  Central  Railroad  of  Ne7U  Jersey,  or  the 
Port  Readifig  Railroad  Company,  or  the  Philadelphia  and  Reading  Rail- 
road Company,  that  the  actual  custody,  enjoyment  and  management 
of  the  corporate  franchises,  powers,  privileges  and  property  of  the 
Central  Railroad  Company  of  New  Jersey,  purporting  to  be  demised 
under  the  terms  of  the  said  lease,  should  be  enjoyed,  conducted  and 
managed  by  the  said  the  Port  Reading  Railroad  Company,  but  that  by 
force  of  the  said  contract  or  guarantee  and  tripartite  agreement 
executed  by  the  said  three  corporations,  as  hereinbefore  set  forth,  the 
actual  control,  enjoyment  and  management  of  the  corporate  fran- 
chises, privileges,  powers  and  property  of  the  Central  Railroad  Com- 
pany demised  in  and  by  the  said  lease  should  be  enjoyed  by  and 
conducted  and  managed  by  the  Philadelphia  and  Reading  Railroad 
Company;  and  it  was  intended  by  all  the  three  corporate  bodies 
aforesaid  to  effect  this  transfer  and  the  enjoyment  and  management 
of  the  corporate  franchise,  powers,  privileges  and  property  of  the 
Central  Railroad  Company  into  the  hands  of  the  Philadelphia  and 
Reading  Railroad  Company,  for  the  purpose  of  evading  and  com- 
mitting a  fraud  upon  the  aforesaid  act  respecting  the  leasing  of  rail- 
roads, approved  May  2,  1885,  and  to  avoid  the  necessity  of  securing 
the  sanction  of  the  legislature  of  the  state  of  New  Jersey  to  the 
leasing  of  the  said  corporate  powers,  privileges,  franchises  and 
property  of  the  Central  Railroad  Company  of  New  Jersey  to  the 
Philadelphia  and  Reading  Railroad  Company,  which  is  a  foreign 
corporation. 

28.  And  your  informant  shows,  that  he  is  informed  and  believes 
that  the  said  the  Philadelphia  and  Reading  Railroad  Company  imme- 
diately took  the  possession  of  the  said  demised  premises  and  now 
holds  the  same,  and  is  now  conducting  and  operating  the  same  as  a 
part  of  what  it  styles  the  Reading  system,  and  it  is  now  receiving  unto 
its  own  treasury,  directly  or  indirectly,  all  the  tolls  for  freight  and  pas- 
sengers which  are  paid  under  the  provisions  of  the  aforesaid  charter 
and  the  supplements  thereto  of  the  Central  Railroad  of  New  Jersey, 
and  that  the  said  the  Philadelphia  and  Reading  Railroad  Company  has 
undertaken  to  and  does  disburse  out  of  its  own  treasury,  directly  or 
indirectly,  all  the  rents  reserved  and  moneys  coming  to  be  paid  to 
the  Central  Railroad  of  Ne^v  Jersey  in  and  by  the  terms  of  the  afore- 
said lease,  and  that  the  said  the  Port  Reading  Railroad  Company  in 
fact  takes  no  part  in  the  performance  of  the  covenants  on  its  part  in 
said  lease  contained,  except  that  its  corporate  name  and  title  are  used 
therein,  and  that  all  the  covenants  in  said  lease  contained  are  being 
performed  wholly  by  the  Philadelphia  and  Reading  Railroad  Co?npany,  if 
performed  at  all. 

29.  And  your  informant  further  informs  your  honor,  that  the  Ceti- 
tral  Railroad  of  New  Jersey  and  the  Port  Reading  Railroad  Cotnpa?iy 
give  out  and  pretend  that  the  first  named  company  was  authorized 
to  execute  and  deliver  the  aforesaid  indenture  of  lease  demising  its 
corporate  franchises,  powers,  privileges  and  property  to  the  latter 
corporation  by  force  of  the  provisions  of  an  act  entitled  '*  An  Act  to 
amend  an  act  entitled  '  An  Act  to  authorize  the  formation  of  rail- 
road corporations  and  to  regulate  the  same,'  approved  April  2,  1873," 

594  Volume  5. 


6403.  CORPORATIONS.  6403. 

which  act  was  approved  March  1 1,  1880.  And  your  informant  informs 
your  honor,  that  the  said  original  act  of  April  2,  1873,  was  and  is  an 
act  commonly  called  the  general  railroad  law,  and  exclusively  re- 
lates to  and  concerns  the  organization  and  operation  of  railroad 
corporations  authorized  thereby  to  be  organized,  and  concerning 
the  acquisition  of  property  by  eminent  domain  and  otherwise, 
and  the  management  and  method  of  management  of  the  affairs 
of  corporations  organized  pursuant  to  the  provisions  of  said  general 
act,  and  has  no  reference  whatever  to,  nor  was  it  intended  by  the 
legislature  of  New  Jersey  to  operate  upon,  or  to  be  effectual  by  way 
of  amendments,  or  otherwise,  to  alter,  increase  or  change  the  powers 
of  railway  corporations  theretofore  created  by  special  charters  granted 
by  the  legislature  of  this  state;  and  that  the  seventeenth  section  of 
said  original  act  did  confer  certain  powers  of  leasing,  merger  and 
consolidation  upon  railroad  corporations  incorporated  under  the  pro- 
visions of  said  act  as  between  each  other,  but  that  said  section  did 
not  in  anywise  confer  any  additional  powers  upon  or  impose  any 
restrictions  whatever  upon  or  in  anywise  concern  railroad  corporations 
incorporated  under  the  authority  of  special  acts  or  charters  granted 
by  the  legislature  of  Ne7u  Jersey;  and  your  informant  in  fact  shows 
unto  your  honor,  that  under  the  title  as  aforesaid  of  a  supplement  to 
the  original  general  railroad  law,  section  seventeen  was  enacted  and 
substituted  in  and  by  said  supplement,  which  purports  on  the  face 
thereof  to  confer  upon  any  corporations  incorporated  under  any  of 
the  laws  of  this  state  at  any  time  during  the  continuance  of  its 
charter  the  power  to  lease  its  road  or  any  part  thereof  to  any  cor- 
poration or  corporations  of  this  or  any  other  state,  or  to  do  both, 
and  such  other  company  or  companies  were  thereby  authorized 
to  take  such  lease  or  to  unite,  consolidate  as  well  as  merge  its  stock, 
property,  franchises  and  roads  with  said  company,  or  to  do  both,  and 
after  such  lease  or  consolidation  the  company'  or  companies  so 
acquiring  said  stock,  property,  franchises  and  road  might  use  and 
operate  such  road  and  their  own  road,  or  all  or  any  of  them,  and 
transport  freight  and  passengers  over  the  same,  and  take  compensa- 
tion therefor  according  to  the  provisions  and  restrictions  contained 
in  said  general  railroad  law,  notwithstanding  any  special  privilege 
theretofore  granted,  or  thereafter  to  be  granted,  to  any  other  cor- 
poration for  the  transportation  of  freight  and  passengers  between 
any  point  on  the  lines  of  said  road  or  any  other  point  within  or  with- 
out this  state,  provided  that  nothing  in  said  supplement  contained 
should  authorize  any  railroad  company,  incorporated  under  a  special 
act  of  the  legislature,  to  charge  for  transportation  of  freight  or  pas- 
sengers over  the  roads  constructed  under  said  special  act,  more  than 
they  might  be  authorized  to  charge  by  provisions  of  their  special  acts 
of  incorporation. 

And  your  informant  in  fact  shows  unto  your  honor,  that  the  said 
act  entitled  "An  Act  to  amend  an  act  entitled  'An  Act  to  authorize 
the  formation  of  railroad  corporations  and  to  regulate  the  same,'"^ 
approved  March  11,  1880,  is  unconstitutional  and  void,  in  that  it  is  in 
direct  violation  of  article  IV,  section  7,  subdivision  4,  of  the  Constitu- 
tion of  the  State  of   New  Jersey,  which   constitution   ordains   and 

595  Volume  5. 


6403.  CORPORATIONS.  6403. 

enacts  in  and  by  said  subdivision  as  follows  {setting  out  enactment')?- 
And  your  informant  informs  your  honor,  that  the  said  supplement  to 
or  amendment  of  the  general  railroad  law,  which  supplement  was  ap- 
proved March  ii,  1880,  purports  by  its  title  to  embrace  but  one  single 
object,  to  wit,  the  amendment  of  the  provisions  of  the  act  of  April  2, 
1873,  for  the  formation  of  railroad  corporations  formed  under  and  regu- 
lated by  the  said  act  of  April  2,  1873 ;  and  that  the  said  supplement  or 
amendment  can  have  no  legal  or  valid  operation  to  alter  or  amend 
the  charter  of  any  railroad  corporation,  or  to  increase  or  restrict  its 
corporate  powers,  except  only  railroad  corporations  formed  under 
and  pursuant  to  and  regulated  by  the  provisions  of  said  general  rail- 
road law,  whereas  in  and  by  the  body  of  said  act  an  object  is  declared 
and  embraced  which  is  not  expressed  in  the  title  thereof,  and  has  no 
proper  relation  whatever  to  the  said  general  railroad  law  and  the  cor- 
porations authorized  to  be  formed  and  regulated  thereby,  but  has  re- 
lation only  to  corporations  formed  and  organized  under  and  pursuant 
to  the  special  charters  granted  by  the  legislature  oi  New  Jersey  to 
such  corporations  respectively,  in  that  it  purports  to  authorize  and 
empower  corporations  formed,  organized  and  regulated  under  and  by 
virtue  of  the  provisions  of  said  special  charters,  and  to  grant  to  such 
corporations  vastly  increased  powers  in  the  alienation,  disposition 
and  regulation  of  their  corporate  property  and  franchises,  powers  and 
privileges,  without  disclosing  or  expressing  in  anywise  in  the  title  of 
said  last  mentioned  act  of  March  11,  1880,  any  intent  or  purpose  so 
to  do,  and  without  embracing  such  object  in  the  title  of  said  act. 

And  your  informant  further  informs  your  honor,  that  the  purpose 
and  effect  of  said  amendatory  act  of  March  11,  1880,  was  and  is,  after 
such  leasing  or  consolidation  should  have  been  effected,  under  and 
pursuant  to  the  powers  thereto  granted  under  and  by  said  amendatory 
act  of  March  11,  1880,  to  {efiumeration  of  pmvers  granted)^  and  that 
by  any  such  lease,. merger  or  consolidation  the  special  charters  of  any 
corporation  so  leased,  merged  or  consolidated  would  ht  pro  tanto  ab- 
solutely repealed,  and  that  such  object  so  expressed  and  indicated  in 
the  said  amendatory  act  had  no  proper  relation  to  the  said  general 
railroad  act,  but  is  an  object  wholly  different  and  having  no  relation 
to  the  objects  of  the  said  general  railroad  law,  and  that  such  object 
is  not  any  object  directly  or  indirectly  expressed  in  the  title  of  said 
amendatory  act  of  March  11,  1880. 

1.  The  constitutional  enactment  referred  law,  and  to  operate  their  respective 
to  in  the  text  is  as  follows:  "To  avoid  roads  in  conformity  thereto,  and  to 
improper  influences  which  may  result  conduct  the  transportation  of  freight 
from  intermixing  in  one  and  the  same  and  passengers  and  take  compensation 
act  such  things  that  have  no  proper  re-  therefor,  according  to  the  provisions 
lation  to  each  other,  every  law  shall  and  restrictions  contained  in  said  gen- 
embrace  but  one  object,  and  that  shall  eral  law,  and  to  repeal  and  vacate  every 
be  expressed  in  the  title."  special   privilege,  power  and  franchise 

2.  The  powers  granted  under  the  contained  in  the  charter  of  such  leased 
amendatory  act  referred  to  in  the  text  or  consolidated  road  or  corporation, 
were  "  to  compel  the  lessee  corpora-  and  to  vest  in  such  leased  or  consoli- 
tion,  or  the  merged  and  consolidated  dated  or  merged  road  or  corporation 
corporation,  after  such  lease,  merger  or  from  thenceforth  only  the  corporate 
consolidation,  to  exercise  only  the  powers,  privileges  and  franchises 
powers  and  privileges  and  franchises  granted  and  contained  in  the  said  gen- 
conferred  by  the  said  general  railroad  eral  railroad  law." 

596  Volume  5. 


6403.  CORPORA  TIONS.  0403. 

And  your  informant  shows  unto  your  honor,  that  if  the  said  act  of 
March  ii,  1880,  is  to  be  construed  in  conformity  to  the  aforesaid 
constitution  of  the  state  of  Nciv  Jersey,  it  can  only  be  construed  to. 
be  a  constitutional  act  by  construing  the  words  {statement  of  con- 
structiofi)^  and  that  to  attempt  to  construe  it  otherwise  would  render 
the  said  act  of  March  11,  1880,  violative  of  the  aforesaid  provision 
of  the  constitution  of  the  state  of  New  Jersey. 

30.  And  your  informant  further  informs  your  honor  that  the  said 
the  Central  Railroad  Company  of  Nexv  Jersey  and  the  Port  Reading  Rail- 
road Company  also  give  out  and  pretend  that  by  force  of  and  pursu- 
ant to  the  powers  granted  to  the  said  the  Central  Railroad  of  Netv 
Jersey  in  and  by  the  third  section  of  an  act  {title,  date  and  substance 
of  act), ^  to  which  said  section  of  said  supplement  your  informant 
prays  leave  to  refer;  but  your  informant  informs  your  honor,  that 
the  said  section  does  not  purport  to  and  cannot  be  construed  to 
empower  the  Central  Railroad  Company  of  New  Jersey  to  demise  or 
let  or  otherwise  alien  in  fee  or  for  any  term  of  years  its  corporate 
powers,,  privileges,  franchises  and  property  to  any  other  railroad 
company,  and  that  the  true  construction  of  the  said  act  is  to 
authorize  the  Central  Railroad  Company  to  acquire  the  corporate 
powers,  privileges  and  franchises,  and  to  operate  other  railroad  cor- 
porations located  in  the  state  of  Neu>  Jersey  which  connect  with  or 
intersect  the  road  of  the  said  Central  Railroad  Company  of  New  Jersey, 
and  that  such  power  to  acquire  by  lease,  purchase  of  stock  or  con- 
solidation is  expressly  limited  to  the  leasing,  purchasing  or  consoli- 
dation of  or  with  the  railroad  so  connecting  with  or  intersecting  in: 
the  state  of  New  Jersey  the  road  of  the  Central  Railroad  Company 
of  New  Jersey. 

31.  And  your  informant  in  fact  informs  your  honor,  that  the  rail- 

1.  The  construction  referred  to  in  the  such  purchase  or  consolidation  shall 
text  as  necessary  to  make  the  act  con-  not  be  made  without  the  assent  of  three- 
stitutional  was  by  construing  the  words  fourths  in  interest  of  the  stockholders, 
"'and  it  shall  be  lawful  for  any  corpo-  and  provided  also,  if  any  stockholder 
ration,  incorporated  under  this  act  or  or  stockholders  shall  refuse  his  or 
under  any  of  the  laws  of  this  state,  at  their  assent,  or  if  by  reason  of  absence- 
any  time  during  the  continuance  of  or  legal  inability  such  assent  cannot 
its  charter,  to  lease  its  road,  or  any  be  obtained,  application  may  be  made 
part  thereof,  to  any  other  corporations  by  said  stockholder  or  stockholders 
of  this  state,  or  to  unite  or  consolidate,'  within  three  months  from  the  time  that 
etc.,  toreler  exclusively  to  corporations,  the  purchase  or  consolidation  is  to  take 
whether  acting  as  lessor  or  lessee  in  the  effect,  to  one  of  the  justices  of  the 
execution  of  this  power  to  lease,  which  supreme  court  of  this  state  for  the 
have  been  incorporated  either  under  appointment  of  three  disinterested,  im- 
the  general  railroad  law  or  some  other  partial  persons,  well  acquainted  with 
general  law  of  the  state  olNewfersey."  the  value  of  railroad  property,  as  com- 

2.  The  act  referred  to  in  the  text  was  missioners,  to  appraise  the  value  of  the 
entitled  {title  of  act),  and  enacted:  shares  held  by  said  stockholder  or 
"That  it  shall  be  lawful  for  the  said  stockholders,  provided  the  appraise- 
company  to  purchase  or  lease  or  oper-  ment  shall,  in  no  case,  be  less  than  the 
ate  any  railroad  which  may  be  con-  par  value  thereof;  whereupon,  such 
nected  with  or  intersect  their  road,  or  proceedings  shall  be  had  as  are  pro- 
to  guarantee  the  bonds  of  such  com-  vided  under  section  seven  of  the  act  of 
pany,  or  to  consolidate  the  stock  of  incorporation,  for  the  appraisement 
such  company  with  their  own,  on  terms  and  taking  of  lands,  so  far  as  the  same 
to  be   mutually  agreed  upon,  provided  is  applicable." 

597  Volume  5. 


6403.  CORPORA  TIONS.  6403. 

roads  of  the  Port  Reading  Railroad  Company  and  the  Central  Railroad 

Company  of  New  Jersey^  as  authorized  by  law,  do  not  in  anywise  con- 
nect with  or  intersect  the  one  with  the  other,  but  that  their  routes 
are  wholly  separated  and  unconnected,  and  that  (^<?jr/'/)>//V7/?^r^z^/^j-), 
and  that  therefore  the  powers  granted  by  the  third  section  of  the 
aforesaid  act  cannot  operate  upon  or  grant  powers  to  the  said  two 
railroad  corporations,  and  that  the  said  indenture  of  lease  is  wholly 
without  authority  derived  from  the  said  third  section  of  the  said 
amendatory  act. 

32.  And  your  informant  informs  your  honor,  that  the  said  Port 
Reading  Railroad  Company  was  authorized  to  file  a  route,  and  did  file 
a  route,  in  the  ofifice  of  the  secretary  of  state  of  the  state  of  New 
Jersey,  at  its  beginning  point  connecting  with  the  Delaware  and 
Bound  Brook  railroad,  and  that  the  said  road  was  intended  by  the 
organizer  thereof,  and  has  been  in  fact  used,  until  the  execution  of 
the  aforesaid  pretended  lease,  in  connection  with  the  Delaware  and 
Bound  Brook  Railroad  Company  and  in  opposition  to  and  in  com- 
petition with  the  said  railroad  of  the  Central  Railroad  of  New  Jersey, 
a  certified  copy  of  which  route  is  hereto  annexed  and  to  which  your 
informant  prays  leave  to  refer. 

2^2,-  And  your  informant  further  informs  your  honor,  that  the  facts 
that  the  Port  Reading  railroad  was  constructed  by  the  Philadelphia 
and  Reading  Railroad  Company,  and  that  the  corporation  thereunder 
was  formed  and  the  stock  subscribed  and  paid  for  by  tht  Philadelphia 
and  Reading  Railroad  Company,  and  that  said  road  was  intended  to 
form  and  be  used  as  a  connecting  road  with  the  Philadelphia  and 
Reading  Railroad  Company  through,  its  leased  line,  th&  Delaware  and 
Bound  Brook  railroad,  was  admitted  by  the  Philadelphia  and  Reading 
Railroad  Cotnpany,  and  the  officers  thereof,  in  the  annual  report  of 
the  president  and  directors  of  said  road,  presented  by  them  to  the 
annual  meeting  of  the  stockholders  of  said  corporation,  in  \Z90, 
which  report  is  an  official  report  presented  to  the  stockholders  at 
said  meeting  for  the  purpose  of  informing  them  of  the  actual  situa- 
tion of  the  railroads  of  the  said  Philadelphia  and  Reading  Railroad 
Company,  and  of  the  intended  extension  of  the  same  for  the  conduct 
of  the  business  of  the  said  corporation;  in  which  said  report  the  said 
president  and  directors  informed  the  stockholders  of  the  said  cor- 
poration that  {substance  of  report^ }■ 

And  your  informant  shows  that  the  road  so  announced  by  the 
said  managers  to  the  said  stockholders,  as  having  been  surveyed, 
and  to  be  rapidly  pushed  forward  to  completion,  for  the  purpose  of 
connecting  with  the  Philadelphia  and  Reading  system,  and  of  trans- 
porting thereon  the  coal  of  said  company  for  distribution  in  the 
New  York  market,  so  economically  and  advantageously,  was  the 
railroad  of  the  Port  Reading  Railroad  Company,  and  that  the  Port 
Reading  Railroad  Company  was  formed  and  organized  by  the  Phila- 
delphia and  Reading  Railroad  Company,  through  the  instrumentality 
of  various  of  its  officers,  directors  and  employees,  for  the  purpose  of 

1.  The  report  of  the  president  and  di-  of  a  new  line  of  road  to  provide  addi- 
rectors  referred  to  in  the  text  was  in  re-  tional  facilities  for  the  distribution  of 
lation  to  the  promotion  and  extension     anthracite  coal  at  certain  points. 

598  Volume  5. 


6403.  CORPORATIONS.  6403. 

connecting  with  the  Delaware  and  Boutid Brook  railroad  and  running 
thence  to  the  waters  of  the  Arthur  Kill,  in  competition  with  the  rail- 
road of  the  Central  Railroad  of  New  Jersey,  and  for  the  purpose  of 
transportation  over  the  same,  by  means  of  the  connection  aforesaid, 
the  product  of  the  mines  of.  the  Philadelphia  and  Reading  Railroad 
Company,  owned  and  controlled  through  the  Reading  Coal  and  Iron 
Company,  and  for  the  transportation  of  other  coals  and  freight  from 
the  various  parts  of  the  system  of  the  said  the  Philadelphia  and 
Reading  Railroad  Company,  from  Bound  Brook  to  the  "waters  of  the 
Arthur  Kill. 

34.  And  your  informant  further  informs  your  honor,  that 
A.  A.  McLeod,  who  at  the  time  was  the  president,  and  still  is  the 
president  of  the  Philadelphia  and  Reading  Railroad  Company,  and 
who  appears  on  the  articles  of  association  of  the  Port  Reading  Rail- 
road Company,  to  which  reference  has  been  heretofore  made,  and  a 
copy  of  which  is  hereto  annexed,  to  have  been  one  of  the  associates 
who  formed  the  association  of  the  Port  Reading  Railroad  Compatry, 
and  subscribed  to  three  hundred  and  eighty-eight  shares  out  of  the 
four  hundred  shares  subscribed  in  the  formation  of  said  corporation, 
and  who,  as  appears  by  the  certified  copy  of  the  official  report  of  the 
Port  Reading  Railroad  Company  hereto  annexed  and  referred  to,  was 
elected  on  the  fourth  day  of  May,  i891,  president  of  the  Port  Read- 
ing Railroad  Cotnpany,  and  was  at  the  time  of  the  execution  and 
delivery  of  the  alleged  indenture  of  lease  aforesaid  the  president 
both  of  the  Philadelphia  and  Reading  Railroad  Company  and  of  the 
Port  Reading  Railroad  Company,  and  as  such  president  of  said  com- 
panies purports  to  have  executed  and  delivered  the  said  alleged 
indenture  of  lease  as  appears  by  the  copy  thereof  hereto  annexed; 
and  that  at  the  time,  and  now,  the  same  A.  A.  McLeod  was  also 
president  of  the  Philadelphia  and  Reading  Coal  and  Iron  Company, 
which  was  then  and  is  now  entirely  owned  by  the  Philadelphia  and 
Reading  Railroad  Company;  and  the  said  McLeod  wdiS  then  and  is  now 
president  of  the  Philadelphia  and  Kaighns  Point  Ferry  Company, 
which  is  also  controlled  by  lease,  ownership  of  stock  or  otherwise 
by  the  said  Philadelphia  and  Reading  Railroad  Company;  that  *  (aver- 
ments as  to  other  persons  holding  official  positions  in  the  several  corpo- 
rations). 1 

35.  And  your  informant  further  shows  unto  your  honor,  that  the 
said  alleged  indenture  of  lease  so  purported  to  have  been  executed 
and  delivered  by  the  Central  Railroad  Company  of  Ne7o  Jersey  to  the 
Port  Reading  Railroad  Company  was  executed  and  delivered  without 
any  power  or  authority  whatever  contained  in  the  charter  of  either 
of  said  corporations,  or  given  and  granted  by  any  act  of  the  legisla- 
ture of  the  state  of  Ne7v  Jersey  to  the  said  corporations  or  either  of 
them;  that  the  said  alleged  indenture  of  lease  was  not  executed  and 

1.  The  information  continued  sifter  the  *  same  time  and  is  now  the  secretary  of 

in  the  text  as  follows:   "  IV.  A'.  Taylor,  the  Philadelphia  and  Reading  Railroad 

who  at  the   time  of   the    execution  of  Company;   that    /.    A.    Sweigard"   (can- 

said    alleged    indenture    of    lease    was  tinning    with    similar    averments    as   to 

and  still  is   the  secretary  of  the  Port  other  persons  holding  official  positions  at 

Reading  Railroad  Company,  was  at  the  the  same  time  in  the  several  corporations). 

599  Volume  5. 


6403.  CORPORA  TIONS.  6403. 

delivered  by  any  lawful  authority  of  the  Central  Railroad  of  New  Jer- 
sey^ and  is  not,  in  fact,  the  act  of  the  said  corporation,  but  that  the 
said  alleged  indenture  of  lease  was  executed  and  delivered  by  the 
officers  who  purport  to  have  executed  the  same  without  any  authority 
whatever  lawfully  derived  from  the  corporation,  the  Central  Railroad 
Company  of  New  Jersey^  but  that  the  same  was  executed  and  delivered 
by  the  said  officers  wholly  by  usurpation  of  powers,  and  that  neither 
by  the  charter  nor  by  the  by-laws  of  the  corporation  was  any  power 
ever  vested  in  the  said  officers  to  execute  and  deliver  the  said  instru- 
ment, nor  was  power  granted  any  officer  whatever  of  the  said  cor- 
poration, and  that  in  fact  the  stockholders  of  said  corporation,  who 
alone  had  power  to  exercise  the  leasing  power  which  such  corporation 
might  possess  at  and  before  the  execution  of  the  said  indenture  of 
lease,  had  never  in  anywise  authorized  the  execution  and  delivery 
thereof  by  the  officer  who  assumed  and  usurped  the  power  of  execu- 
tion and  delivery  of  the  same ;  and  your  informant  informs  your  honor, 
that,  as  between  the  president  and  secretary  of  the  said  Central  Rail- 
road of  New  Jersey  2LXi6.  the  said  corporation  and  the  said  Port  Reading 
Railroad  Cojupany,  the  said  indenture  of  lease  is  wholly  without 
authority  and  voidable,  and  that  as  between  the  said  corporations  and 
officers  and  the  state  of  New  Jersey  the  said  indenture  of  lease  is 
wholly  without  authority  and  void,  and  that  no  authority  was  ever 
vested  by  the  state  of  New  Jersey^  the  grantor  of  the  corporate 
powers,  privileges  and  franchises  of  the  Central  Railroad  Company  of 
New  Jersey  to  the  said  officers  of  the  said  Central  Railroad  Company 
of  New  Jersey  to  alienate  in  anywise  by  indenture  of  lease,  mortgage 
or  deed  the  said  corporate  privileges,  powers  and  franchises,  or  to 
vest  the  said  officers  who  actually  executed  said  lease,  or  the  board 
of  directors  of  said  corporation,  with  any  powers  as  agents  to  effectuate 
a  legal  alienation  of  the  said  corporate  powers,  privileges,  franchises 
and  property,  and  that  the  attempted  alienation  thereof  by  means  of 
said  indenture  of  lease  was  wholly  invalid  and  void  for  want  of 
authority  from  the  state  of  New  Jersey,  or  otherwise,  to  execute  and 
deliver  the  same. 

36.  Your  informant  further  informs  your  honor,  that  the  corporate 
ana  prerogative  franchises,  powers  and  privileges  granted  by  the 
state  o^  New  Jersey  to  the  Central  Railroad  Company  of  New  Jersey  in 
and  by  its  charter  hereinbefore  set  forth,  and  the  acts  supplementary 
and  amendatory  thereof,  were  granted  expressly  to  the  said  corpora- 
tion alone,  and  by  the  terms  of  said  charter  and  acts  supple- 
mentary and  amendatory  thereof,  said  corporate  and  prerogative 
powers,  franchises  and  privileges  were  made  assignable  only  for 
especial  purposes  set  forth  in  the  said  charter,  to  wit,  by  way  of 
mortgaging  the  same  for  the  purposrj  of  raising  money  for  the  com- 
pletion of  the  construction  of  the  railroad  of  the  said  Central  Rail- 
road Company  of  New  Jersey,  2lX\6.  that  the  same  were  not  assignable 
for  any  other  purpose  whatsoever,  but  were  special  grants  to  the  said 
the  Central  Railroad  Company  of  New  Jersey  alone,  and  that  the  said 
Central  Railroad  Company  alone  could  take  and  enjoy  the  same,  and 
discharge  the  public  duties  arising  on  its  part  by  force  of  said  grant 
to  the  state  of  New  Jersey,  its  inhabitants  and  the  public;  and  fur- 

600  Volume  5. 


6403.  CORPORATIONS.  6403. 

ther,  that  even  if  by  force  of  the  provisions  of  the  aforesaid  act  of 
March  ii,  1880,  the  Central  Railroad  Company  0/ Nnv  Jersey  diC(\n\rtd 
additional  power  of  alienating  by  lease  the  said  corporate  and  pre- 
rogative powers,  privileges  and  franchises,  the  only  power  of  assign- 
ing the  said  franchises  so  granted  to  said  corporation  by  said  act  is 
a  special  power  to  assign  the  same  by  one  act  in  the  exercise  of  such 
power  to  another  corporation  or  corporations,  and  that  the  Central 
Railroad  Company  of  New  Jersey  by  such  one  act  exhausted  its  powers, 
and  was  not  clothed  by  said  act  or  by  any  other  act  of  the  legislature 
of  the  state  of  Neiv  Jersey  with  the  power  of  imparting  to  the  term 
which  it  had  demised  in  the  execution  of  its  power  to  the  Port  Read- 
ing Railroad  Company  that  assignable  quality,  and  had  no  power  to 
demise  or  let  its  corporate  and  prerogative  franchises,  powers  and 
privileges  to  the  assigns  of  said  corporation,  or  to  clothe  its  said 
assignment  with  the  power  to  reassign  the  same,  but  that  the  nonassign- 
able quality  of  the  original  grant  by  the  charter  of  the  said  corpora- 
tion to  said  corporation  remains  unchanged,  with  power  only  to 
execute  the  one  act  of  assigning,  if  any  such  power  was  granted  by 
the  act  of  1880,  or  any  other  act  of  the  legislature  of  the  state  of 
Neiu  Jersey. 

But  your  informant  informs  your  honor,  that  in  and  by  the  said 
alleged  indenture  of  lease,  executed  by  the  Central  Railroad  Company 
of  Nnv  Jersey  to  the  Port  Reading  Railroad  Company,  the  said  Central 
Railroad  Company  undertook  and  assumed  not  only  to  assign,  let  and 
demise  to  the  Port  Reading  Railroad  Cofnpany  its  prerogative  fran- 
chises and  other  franchises,  powers  and  privileges  to  the  Port  Read- 
ing company,  but  to  let  and  demise  the  same  to  the  Port  Reading 
company,  its  successors  and  assigns,  and  the  said  indenture  of  lease 
thus  assumed  to  exercise  a  power  of  assignment  with  which  the  state 
of  New  Jersey  had  never  clothed  it,  and  that  the  utmost  that  the  said 
indenture  of  lease  could  accomplish  was  to  assign  the  franchises  and 
privileges  of  the  Central  Railroad  Company  to  the  Port  Reading  Rail- 
road Company  alone,  in  whose  hands  said  franchises  and  privileges,  if 
well  assigned,  would  remain  and  do  remain  absolutely  unassignable, 
no  power  thereto  having  been  granted  by  the  state  of  Netv  Jersey. 

37.  And  your  informant  further  informs  your  honor,  that  in  and 
by  the  said  alleged  indenture  of  lease  the  said  the  Central  Railroad 
Company  of  New  Jersey  affected  to  and  usurped  the  power  to  let  and 
demise  to  the  Port  Reading  Railroad  Company  the  corporate  rights, 
powers  and  privileges  of  a  large  number  of  other  railway  corporations 
nominated  in  the  said  indenture  of  lease;  and  as  to  the  said  railway 
corporations  so  nominated  in  said  indenture  of  lease,  your  informant 
informs  your  honor,  that  a  large  number  of  them  are  existing  sepa- 
rate corporations,  if  not  all  of  them,  of  which  your  informant  has  no 
accurate  knowledge,  nor  the  means  of  obtaining  such  knowledge,  but 
your  informant  charges  that  the  railways  nominated  in  said  lease, 
and  known  as  {names  of  railroads^  are  separate  and  existing  cor- 
porations, and  that  the  Central  Railroad  of  Ne^v  Jersey  \\ils  no  other 
power  in  and  over  their  respective  properties  or  franchises  than  the 
power  that  it  derives  either  as  the  lessee  of  the  said  several  railroad 
corporations  or  as  the  owner  of  all  or  a  majority  of  their  respective 

601  Volume  5. 


6403.  CORPORATIONS.  6403. 

capital  stock,  and  that  if  the  said  act  of  March  ii,  1880,  or  any  other 
act  of  the  legislature  of  the  state  of  New  Jersey,  does  empower  the 
said  several  railroad  corporations,  or  any  of  them,  to  demise  and  let 
its  corporate  and  prerogative  powers,  privileges  and  franchises,  such 
power  to  demise  and  let  exists  in  and  is  conferred  upon  the  said  sev- 
eral corporations  alone,  and  is  a  special  power,  and  if  they  have  ex- 
ercised the  same  by  demising  and  letting  their  franchises,  powers  and 
privileges  to  the  Central  Railroad  of  New  J ej-sey,  that  by  so  demising 
and  letting  the  same  their  power  to  demise  and  let  is  exhausted,  and 
that  such  power  does  not  extend  to  or  vest  the  Central  Railroad  Com- 
pany of  New  Jersey  with  any  power  to  further  let  and  demise  the 
same  or  any  of  their  respective  prerogative  and  corporate  powers, 
privileges  and  properties,  and  that  the  said  indenture  of  lease  exe- 
cuted by  the  Central  Railroad  Compafiy  of  New  Jersey  to  the  Port  Read- 
ing Railroad  Company  is  wholly  ultra  vires  and  a  usurpation  of  cor- 
porate powers  on  the  part  of  the  Central  Railroad  Company  of  New 
Jersey,  and  that  the  said  indenture  of  lease  is  wholly  ultra  vires  and 
void  as  to  the  state  of  New  Jersey,  and  should  be  by  decree  of  this 
court  set  aside  and  for  nothing  holden. 

To  the  end,  therefore,  that  inasmuch  as  your  informant  is  without 
adequate  relief  in  the  premises,  save  by  the  aid  and  interposition  of 
this  honorable  court,  said  defendants  and  their  confederates,  when 
discovered,  may  full,  true  and  distinct  answer  make  under  their 
respective  common  and  corporate  seals,  on  the  oaths  and  affirmation 
of  their  respective  presidents  and  secretaries  to  all  and  every  the 
matters  hereinbefore  informed  and  averred  as  fully  as  if  the  same 
were  now  here  again  repeated,  and  they  particularly  interrogated 
thereto,  paragraph  by  paragraph,  and  that  the  aforesaid  alleged 
indenture  of  lease  made,  executed  and  delivered  by  the  Central  Rail- 
road Company  of  New  Jersey  to  the  Port  Reading  Railroad  Co?npany 
may  be  decreed  to  be  ultra  vires  and  void  and  a  usurpation  of  cor- 
porate franchises  on  the  part  of  the  said  corporations  respectively, 
and  that  the  said  lease  may  be  decreed  to  be  absolutely  null  and 
void,  and  be  set  aside  and  for  nothing  holden;  and  that  the  said  tri- 
partite agreement  between  the  Central  Railroad  Company  of  New 
Jersey,  the  Port  Reading  Railroad  Company,  and  the  Philadelphia  a?id 
Reading  Railroad  Company  may  be  decreed  to  be  ultra  vires,  fraudu- 
lent and  void,  and  that  the  said  indenture  of  lease  and  tripartite 
agreement,  and  all  other  agreements,  leases  or  other  instruments 
executed  and  delivered  between  the  said  parties  under  which  the 
combination  aforesaid  was  effected,  and  the  possession,  management 
and  control  of  the  said  the  Central  Railroad  Company  of  New  Jersey, 
and  its  corporate  powers,  privileges  and  franchises  have  come  into 
the  possession,  control  and  management  of  the  Philadelphia  and 
Reading  Railroad  Company,  may  be  decreed  to  be  ultra  vires,  fraudu- 
lent and  void,  and  tending  to  create  a  monopoly  of  the  anthracite 
coal  trade  and  to  stifle  competition  between  the  said  corporations, 
and  to  arbitrarily  increase  the  price  of  anthracite  coal  to  the  inhabi- 
tants of  the  state  of  New  Jersey;  and  that  the  said  the  Philadelphia 
and  Reading  Railroad  Company,  and  the  Port  Reading  Railroad  Com- 
pany, may  be  decreed  to  surrender  and  return  to  the  Central  Railroad 

60S  Volume  5, 


6403.  CORPORATIONS.  6403. 

Company  of  New  Jersey  \.\\t.  i^O'&%t%%\on  of  all  its  railroads,  corporate 
franchises,  powers  and  privileges,  and  to  cease  forever  hereafter  from 
controlling  or  intermeddling  with,  in  anywise,  the  possession,  exer- 
cise, management  and  control  of  any  of  the  said  railroads  and  cor- 
porate property,  franchises,  powers  and  privileges  of  the  Central 
Railroad  Company  of  New  Jersey,  and  that  all  the  said  instruments  of 
leases,  tripartite  agreements,  and  other  instruments  whatever,  under 
which,  or  by  force  of  which,  the  Philadelphia  and  Reading  Railroad 
Cofnpany  assumes  to  exercise  any  such  possession,  management,  con- 
trol or  enjoyment  of  the  corporate  property,  power,  privileges  and 
franchises  of  the  Central  Railroad  Cofnpany  of  New  Jersey  may  be 
decreed  to  be  ultra  vires,  fraudulent  and  void,  and  be  set  aside  and 
for  nothing  holden,  and  that  the  said  corporate  defendants  may  be 
decreed  forever  hereafter  to  cease  from  all  combinations  arbitrarily 
increasing,  or  tending  to  increase,  the  price  of  coal  to  the  inhabitants 
of  the  state  of  New  Jersey  under  any  instrument  or  pretenses  what- 
ever, either  by  arbitrarily  lessening  the  production  of  coal  or  by 
arbitrarily  fixing  the  price  of  anthracite  coal  or  the  transportation  of 
the  same,  when  produced,  or  in  any  other  wise  whatsoever;  and  that 
your  informant  may  have  such  other  and  further  relief  in  the  prem- 
ises as  the  nature  of  the  case  may  require,  and  may  be  agreeable  to 
equity  and  good  conscience. 

May  it  please  your  honor  to  grant  unto  your  informant  not  only 
the  state's  writ  of  injunction  issuing  out  of  and  under  the  seal  of  this 
honorable  court,  to  be  directed  to  the  said  the  Central  Railroad  Com- 
pany of  New  Jersey,  the  Port  Reading  Railroad  Company  and  the 
Philadelphia  and  Reading  Railroad  Company,  enjoining  and  restraining 
them,  their  officers  and  agents,  directors  and  employees,  and  each  of 
them,  from  doing  or  continuing  any  act  whatever  under  and  by  virtue 
of  the  terms,  covenants  and  conditions  contained  and  set  forth  either 
in  the  said  alleged  indenture  of  lease  or  in  the  said  tripartite  agree- 
ment, or  under  and  by  virtue  of  any  other  instrument  which  may 
have  been  executed  and  delivered  between  the  said  companies,  or 
between  them  and  any  other  parties  whereby  under,  or  under  color 
of  which,  the  said  the  Philadelphia  and  Reading  Railroad  Company 
pretends,  or  the  Port  Reading  Railroad  Company  pretends,  to  have 
acquired  or  be  empowered  to  possess,  manage  or  in  anywise  control 
the  corporate  franchises,  powers,  privileges  or  property  of  the  Cen- 
tral Railroad  Company  of  New  Jersey,  its  officers  and  directors,  and 
that  the  said  Central  Railroad  Company  of  Ne^o  Jersey,  its  directors, 
officers  and  agents,  be  directed  to  retake  possession  of,  and  exercise, 
manage  and  control  all  the  corporate  powers,  privileges  and  fran- 
chises granted  to  the  said  corporation,  and  to  manage  and  conduct 
the  same  under  the  sole  authority  of  the  said  the  Central  Railroad 
Company  of  New  Jersey;  and  also  to  enjoin  and  restrain  the  said 
defendant  corporations,  their  officers  and  agents,  from  doing  any  and 
all  acts,  and  making  any  arrangements  or  combinations,  by  contract 
or  otherwise,  having  for  their  object,  effect  or  result,  either  to  limit 
or  diminish  the  production  of  anthracite  coal,  or  arbitrarily  to 
increase  the  price  thereof,  or  to  prevent  competition  among  them  in 
the  production,  transportation  and  sale  of  anthracite  coal,  and  from 

603  Volume  5. 


6404.  CORPORATIONS.  6404. 

doing  any  other  act  or  thing,  or  making  any  arrangements  or  agree- 
ments to  do  the  same  in  and  about  the  business  of  mining,  producing 
and  transporting  anthracite  coal  which  shall  tend  to  a  monopoly  in 
the  same,  or  arbitrarily  to  increase  the  price  of  anthracite  coal  to  the 
inhabitants  of  the  state  of  New  Jersey,  and  that  the  said  defendants, 
their  officers  and  agents,  and  each  and  every  of  them,  in  the  mean- 
time and  until  the  further  order  of  the  court  in  the  premises,  desist 
and  refrain  from  operating  their  railroads  in  the  state  of  New  Jersey, 
in  such  manner  as  to  diminish  competition  in  the  trade  in  anthracite 
coal,  and  desist  and  refrain  from  making,  continuing,  or  acting  under 
any  arrangements  or  combinations  with  each  other,  by  contract  or 
otherwise,  having  for  their  object,  effect,  or  result,  either  the  creation 
of  an  artificial  scarcity  of  such  coal,  by  limitation  or  diminution  of 
the  supply  thereof,  despite  the  natural  laws  of  demand  and  supply, 
or  having  for  their  object,  effect  or  result  the  arbitrary  increase  of 
the  price  of  such  coal,  or  the  prevention  of  existing  or  future  legiti- 
mate competition  in  the  production,  transportation,  or  sale  of  such 
coal,  and  from  doing  any  other  act  or  thing  in  and  about  the  business 
of  mining,  producing  and  transporting  anthracite  coal  which  shall 
tend  to  a  monopoly  of  the  same,  or  arbitrarily  to  increase  the  price 
of  such  coal  to  the  inhabitants  of  the  state  of  New  Jersey,  but  also 
the  state's  writ  of  subpoena,  to  be  directed  to  the  said  the  Central 
Railroad  Company  of  New  Jersey,  the  Port  Reading  Railroad  Compaiiy, 
and  the  Philadelphia  and  Reading  Railroad  Cotnpany,  commanding 
them  and  each  of  them  at  a  certain  day  and  under  a  certain  penalty 
therein  to  be  expressed,  to  be  and  appear  before  your  honor  in  this 
honorable  court,  then  and  there  to  answer  the  premises,  and  to  stand 
to  and  abide  by  and  perform  such  decree  therein  as  to  your  honor 
shall  seem  meet,  etc. 

John  P.  Stockton,  Attorney-General. 
(  Verification^^ 

(Jf)  Order  to  Show  Cause  why  Injunction  should  not  Issue. 

Form  No.  6404.* 
(^Title  of  cause        )  Order  to  Show  Cause  why  Injunction  should 


as  in  Form  No.  6^02.')  )      not  Issue. 

Upon  reading  the  information  of  the  attorney-general  of  the  state 
of  New  Jersey,  on  the  behalf  of  said  state  in  this  cause,  and  the  ex- 
hibits and  affidavits  thereto  annexed,  and  on  motion  oi  JohnP.  Stock- 
ton, attorney-general,  it  is  on  this  thirty-first  da.y  of  May,  i892,  ordered 
that  the  defendants,  the  Central  Railroad  Company  of  New  Jersey,  the 
Port  Reading  Railroad  Company,  and  the  Philadelphia  and  Reading 
Railroad  Company,  show  cause  before  the  chancellor,  at  the  state-house 
in  Trenton,  on  Xht  fifteenth  day  oi  June  next,  a.t  ten  o'clock  in  the  fore- 
noon, or  as  soon  thereafter  as  counsel  can  be  heard,  why  an  injunction 
should  not  issue  according  to  the  prayer  of  the   information,  among 

1.  Consult  the  title  Verifications.         v.  Central  R.  Co.,  50  N.J.  Eq.  52,  489. 

2.  This  order  to  show  cause  why  an  in-     See  supra,  note  3,  p.  568. 

junction    should    not    issue   is    copied         For  forms  of  orders,  generally,  con- 
from  the  record  in  the  case  of  Stockton     suit  the  title  Orders,  etc. 

604  Volume  5. 


6404.  CORPORATIONS.  6404. 

other  things  in  substance  enjoining  and  restraining  them,  their  officers 
and  agents,  directors  and  employees,  and  each  of  them,  from  doing  or 
continuing  any  act  whatever  under  and  by  virtue  of  the  terms,  cove- 
nants and  conditions  contained  and  set  forth  in  the  indenture  of  lease 
or  in  the  said  tripartite  agreement  of  February  12,  i892,  alleged  in 
said  information,  or  under  and  by  virtue  of  any  other  instrument 
which  may  have  been  executed  and  delivered  between  the  said  com- 
panies, or  between  them  and   any  other  parties,  whereby  under,  or 
under  color  of  which,  the  said  the  Philadelphia  and  Reading  Railroad 
Company  pretends  or  the  Port  Reading  Railroad  Company  pretends,  to 
have  acquired  or   be  empowered  to  possess,  manage  or  in  anywise 
control  the  corporate  franchises,  powers,  privileges  or  property  of  the 
Central  Railroad  Company  of  New  Jersey,  its  officers  and   directors, 
and  commanding  the  said  Central  Railroad  Co?npany  of  New  Jersey  to 
retake  possession  of  and  exercise,  manage  and  control  all  the  cor- 
porate powers,  privileges  and  franchises  granted  to  the  said  corpora- 
tion, and  to  manage  and  conduct  the  same  under  the  sole  authority 
of  the  said  the   Central  Railroad  Company  of  New  Jersey;  and  also 
enjoining  and  restraining  the  said  defendant  corporation,  its  officers 
and  agents,  from. doing  any  and  all  acts,  and  making  any  arrange- 
ments or  combinations,  by  contract  or  otherwise,  having  for  their 
object,  effect  or  result  either  to  limit  or  diminish  the  production  of 
anthracite  coal,  or  arbitrarily  to  increase   the  price  thereof,  or  to 
prevent  competition  among  them  in  the  production,  transportation 
and  sale  of  anthracite  coal,  and  from  doing  any  other  act  or  thing,  or 
making  any  arrangements  or  agreements  to  do  the  same  in  and  about 
the  business  of  mining,  producing  and  transporting  anthracite  coal, 
which  shall  tend  to  a  monopoly  of  the  same,  or  arbitrarily  to  increase 
the  price  of  coal  to  the  inhabitants  of  the  state  of  Ne^u  Jersey.     And 
it  is  further  ordered  that  the  said  defendants,  their  officers  and  agents, 
and  each  and  every  of  them,  in  the  meantime  and  until  the  further 
order  of  the  court  in  the  premises,  desist  and  refrain  from  operating 
their  railroads    in  the    state  of  New  Jersey,  in  such    manner  as  to 
diminish  competition  in  the  trade  in  anthracite  coal,  and  desist  and 
refrain  from   making,  continuing  or  acting  under  any  arrangements 
or  combinations  with  each  other,   by  contract  or  otherwise,  having 
for  their  object,  effect  or  result  either  the  creation  of  an  artificial 
scarcity  of   such  coal,   by    limitation    or   diminution  of  the   supply 
thereof,  despite  the  natural  law  of  demand  and  supply,  or  having  for 
their  object,  effector  result  the  arbitrary  increase  of  the  price  of  such 
coal,  or  the  prevention  of  existing  or  future  legitimate  competition 
in  the  production,  transportation  or  sale  of  such  coal,  and  from  doing 
any  other  act  or  thing  in  and  about  the  business  of  mining,  producing 
and  transporting  anthracite  coal  which  shall  tend  to  a  monopoly  of 
the  same,    or  to  arbitrarily  increase  the  price  of  such  coal  to  the 
inhabitants  of  the  state  of  New  Jersey. 

And  it  is  further  ordered  that  a  copy  of  the  said  information,  ex- 
hibits and  affidavits,  together  with  a  copy  of  this  order,  which  copies 
need  not  be  certified,  be  served  on  the  said  defendants,  respectively, 
within  five  days  from  the  date  of  this  order. 

Alex.  T.  McGill,  C. 
605  Volume  5. 


6405.  CORPORATIONS.  6405. 

{f)  Order  for  Injunction. 

Form  No.  6405.' 

(Title  of  cause        )  r\    \      c      t    •        4.- 
•  ^  77       \t     c'inci-\  \  Order  for  Injunction. 
as  tn  Form  No.  6Jf02.)  )  •' 

Application  having  been  made  hy  Jo /m  P.  Stockton,  attorney-gen- 
eral, on  the  thirty-first  day  of  May  last  past,  by  information  filed  on 
that  day,  for  injunction,  according  to  the  prayer  of  said  information, 
and  an  order  having  been  thereupon  made  that  the  said  defendants, 
the  Central  Railroad  Company  of  New  Jersey,  the  Port  Reading  Rail- 
road Company,  and  the  Philadelphia  and  Reading  Railroad  Compafiy, 
show  cause  before  the  chancellor  on  t\\&  fifteenth  day  oi  June  then  next, 
why  the  injunction  asked  for  should  not  issue;  and  the  hearing  of 
the  said  order  to  show  cause  having  been  continued  until  the  nine- 
teenth day  oi  July  last  past,  at  which  time  the  matter  therein  involved 
came  on  to  be  heard  upon  the  said  information  and  the  exhibits  and 
affidavits  annexed  thereto,  and  the  answers  of  the  defendants  and 
affidavits  respectively  annexed  thereto,  and  upon  limited  proofs  which 
had  been  taken  under  an  order  of  this  court  in  conformity  with  the 
provisions  of  rule  one  hundred  and  ttventy -one;  and  .said  pleadings  and 
proofs  having  been  read  and  the  said  attorney-general  and  Mr. 
Frederick  IV.  Stevens,  of  counsel  with  the  informant,  and  Messrs. 
Benjamin  Williamson,  Safnuel  Dickson  and  Robert  IV.  DeForrest,  of 
counsel  with  the  Central  Railroad  of  New  Jersey,  zxi(l  Messrs.  Thomas 
N.  McCarter,  John  G.  Johnson  and  John  R.  Emery,  of  counsel  with  the 
Philadelphia  and  Reading  Railroad  Company,  and  the  Port  Reading  Rail- 
road Company,  having  been  heard  from  thence  from  day  to  day,  unto  and 
including  the  twenty- second  dz-j  oi  July  aforesaid,  and  the  chancellor 
having  considered  the  said  pleadings  and  the  said  affidavits  and  other 
proofs,  and  the  arguments  of  counsel,  orally  and  by  briefs  subsequently 
submitted,  and  being  of  opinion  therefrom,  that  the  indenture  of  lease 
and  tripartite  agreement  set  out  and  admitted  in  the  pleadings  bear- 
ing date  February  12,  i892,  were  made  without  legal  sanction  and  in 
contravention  of  law;  and  being  of  opinion  also,  that  the  effect  of 
the  said  lease  and  tripartite  agreement  is  to  partially  destroy  com- 
petition in  the  production  and  sale  of  anthracite  coal,  a  staple  com- 
modity of  this  state,  and  therefore  is  a  corporate  excess  of  power 
which  tends  to  monopoly  and  the  public  injury,  and  for  that  reason 
that  the  further  carrying  into  effect  said  lease  and  agreement  and 
the  terms  thereof  in  other  form,  or  in  disguise  of  any  kind,  may  be 
restrained  at  the  suit  of  the  informant. 

It  is  thereupon,  on  this  twenty-ninth  day  of  August,  in  the  year  one 
thousand  eight  hundred  and  ninety-two,  ordered  that  an  injunction  do 
issue  against  the  said  defendants,  their  officers  and  agents,  and  each 
of  them,  restraining  and  prohibiting  them,  and  each  of  them,  from 
further  performing  and  carrying  into  effect  the  aforesaid  lease  and 
tripartite  agreement;  and  further   restraining   and   prohibiting   the 

1.  This  order  for  injunction  is  copied        For  forms  of  orders,  generally,  con- 
from  the  record  in  the  case  of  Stockton     suit  the  title  Orders,  etc. 
V.  Central  R.  Co.,  50  N.  J.  Eq.  52,  489. 
See  supra,  note  3,  p.  568. 

606  Volume  5. 


6406.  CORPORATIONS.  6406. 

Port  Reading  Railroad  Company  and  the  Philadelphia  and  Reading 
Railroad  Company,  their  officers  and  agents,  from  continuing  to  con- 
trol the  roads,  property  and  franchises  of  the  Central  Railroad  Com- 
pany of  New  Jersey,  and  from  in  any  wise  further  intermeddling 
therewith;  and  further  restraining  and  prohibiting  the  Cr«/ra/ .^a//- 
road  Company  of  Ne7v  Jersey,  its  officers  and  agents,  from  permitting 
the  Port  Reading  Railroad  Company  or  the  Philadelphia  and  Reading 
Railroad  Company  to  use,  control  or  operate  its  road,  property  and 
franchises;  and  enjoining  and  commanding  the  said  the  Central 
Railroad  Company  of  New  Jersey,  its  officers  and  agents,  to  again 
resume  control  of  all  its  property  and  franchises  and  the  performance 
of  all  its  corporate  duties;  and  further  restraining  and  prohibiting 
the  defendants  from  conjointly  operating  their  railroads  in  the  state 
of  New  Jersey  in  such  manner  as  to  diminish  competition  in  the 
trade  in  anthracite  coal,  and  from  making,  continuing  or  acting 
under  any  arrangements  or  combinations  with  each  other,  by  con- 
tract or  otherwise,  having  for  their  object,  effect  or  result,  the  con- 
trol and  operation  of  the  Central  Railroad  Company  of  Neiv  Jersey,  its 
roads,  property  or  franchises  by  the  other  defendants,  or  either  of 
them,  and  thereby  effecting  either  the  creation  of  an  artificial 
scarcity  of  such  coal,  by  limitation  or  diminution  of  the  supply 
thereof,  despite  the  natural  law  of  demand  and  supply,  or  the 
arbitrary  increase  of  the  price  of  such  coal,  or  the  prevention  of 
existing  or  future  legitimate  competition  in  the  production,  transpor- 
tation or  sale  of  such  coal. 

And  it  is  further  ordered  that  the  attorney-general  have  leave  to 
serve  the  said  injunction  upon  the  said  corporations,  and  upon  the 
officers  and  directors  thereof,  without  this  state,  in  case  such  officers 
and  directors  cannot  be  found  within  this  state. 

Alex.  T.  McGill,  C. 

(</)  Injunction. 

Form  No.  6406.' 

New  Jersey,  to  wit:  The  state  of  New  Jersey  to  The  Central  Rail- 
road Company  of  New  Jersey,  The  Port  Reading  Railroad  Company, 
The  Philadelphia  and  Reading  Railroad  Company,  and  their  respective 
officers,  directors,  servants  and  agents,  and  each  and  every  of  them, 
Greeting: 

Whereas,  it  hath  been  represented  to  us  in  our  Court  of  Chancery, 
on  the  part  oi  John  P.  Stockton,  attorney-general  of  the  state  of 
New  Jersey,  on  the  behalf  of  said  state,  informant,  that  he  has  lately 
exhibited  his  information  against  you  the  said  The  Central  Railroad 
Company  of  New  Jersey,  the  said  The  Port  Reading  Railroad  Company, 
and  the  said  The  Philadelphia  and  Reading  Railroad  Company,  defend- 
ants, to  be  relieved  touching  the  matters  set  forth  in  the  said 
information. 

1.  Thii  injnnotion  is  copied  from  the        For  forms  in  injunction  proceedings, 
record  in  the  case  of  Stockton  v.  Central     generally,  consult  the  title  Injunctions. 
R.  Co..  50  N.  J.  Eq.  52,  48q.   See  supra, 
note  3,  p.  568. 

607  Volume  5. 


6406.  CORPORATIONS.  6406. 

We,  therefore,  in  consideration  of  the  premises,  and  of  the  par- 
ticular matters  set  forth  in  the  said  information,  do  strictly  enjoin 
and  command  you  the  said  The  Central  Railroad  Company  of  New 
Jersey,  the  said  The  Port  Reading  Railroad  Company,  the  said  The 
Philadelphia  and  Reading  Railroad  Company,  your  respective  officers, 
servants  and  agents,  and  all  and  every  the  persons  before  mentioned, 
and  each  and  every  of  you,  under  the  penalty  that  may  fall  thereon, 
that  you,  and  each  and  every  of  you,  do  absolutely  desist  and  refrain 
from  further  performing  and  carrying  into  effect  the  lease  made  the 
twelfth  day  of  February,  a.  d.  \%92,  by  and  between  the  Cetitral 
Railroad  Company  of  New  Jersey  and  the  Port  Reading  Railroad  Com- 
pany, and  the  guarantee  or  tripartite  agreement  bearing  date  the  day 
and  year  last  aforesaid,  and  made  by  and  between  the  Central  Rail- 
road Company  of  Neiv  Jersey,  the  Philadelphia.  a?id  Reading  Railroad 
Company  and  the  Port  Reading  Railroad  Company;  and  that  you 
the  Port  Reading  Railroad  Company  and  the  Philadelphia  and 
Reading  Railroad  Company,  your  and  each  of  your  officers  and 
agents,  do  also  absolutely  desist  and  refrain  from  continuing  to 
control  the  roads,  property  and  franchises  of  the  Central  Railroad 
Company  of  New  Jersey,  and  from  in  any  wise  further  intermeddling 
therewith ;  and  that  you  the  Central  Railroad  Company  of  New  Jersey, 
your  officers,  directors  and  agents,  do  absolutely  desist  and  refrain 
from  permitting  the  Port  Reading  Railroad  Company  or  the  Phila- 
delphia and  Reading  Railroad  Company  to  use,  control  or  operate  your 
road,  property  and  franchises;  and  that  you  the  said  The  Central 
Railroad  Company  of  New  Jersey,  your  officers,  directors  and  agents, 
do  again  forthwith  resume  control  of  all  your  property  and  fran- 
chises, and  the  performance  of  all  your  corporate  duties;  and  further 
that  you  the  said  The  Ce?itral  Railpoad  Company  of  New  Jersey,  the 
said  The  Port  Reading  Railroad  Company,  and  the  said  The  Phila- 
delphia and  Reading  Railroad  Company,  your  officers,  directors,  ser- 
vants and  agents,  do  absolutely  desist  and  refrain  from  conjointly 
operating  your  respective  railroads  in  the  state  of  New  Jersey  in 
such  manner  as  to  diminish  competition  jn  the  trade  in  anthracite 
coal,  and  from  making,  continuing  or  acting,  under  any  arrangements 
or  combinations  with  each  other  by  contract  or  otherwise,  having  for 
its  object,  effect  or  result  the  control  and  operation  of  the  Central 
Railroad  Company  of  New  Jersey,  its  roads,  property  or  franchises  by 
the  other  defendants,  the  Port  Reading  Railroad  Cojnpany,  or  the 
Philadelphia  and  Reading  Railroad  Co7npany,  or  either  of  them,  and 
thereby  affecting  either  the  creation  of  an  artificial  scarcity  of  such 
coal  or  by  a  limitation  or  diminution  of  the  supply  thereof,  despite 
the  natural  law  of  demand  and  supply,  or  the  arbitrary  increase  of 
the  price  of  such  coal,  or  the  prevention  of  existing  or  future 
legitimate  competition  in  the  production,  transportation  or  sale 
of  such  coal,  until  our  said  court  shall  make  other  order  to  the 
contrary. 

Witness:  Alexander  T.  McGill,  our  chancellor,  the  thirtieth  day  of 
August,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-two. 

Allan  L.  McDermott,  Clerk. 
608  Volume  5. 


6407. 


CORPORA  TIONS. 


6407. 


(8)  To  Restrain  Operation  of  Consolidated  Competing 

Railroad. 

Form  No.  6407.' 

In  the  Supreme  Judicial  Court. 
Middlesex,  ss. 

Between 
The  Boston  and  Lowell  Railroad  Corporation, 
a  corporation  duly  incorporated  and  existing 
under  the  laws   of  the    Commonwealth   of 
Massachusetts,  plaintiff, 
and 
The    Salem    and   Lowell  Railroad  Company, 
The  Boston  and  Maine  Railroad,  and  The 
Lowell  and  Lawrence  Railroad  Company, 
all  being  corporations  duly  incorporated  and 
existing  under  the  laws  of  the  Commonwealth 
of  Massachusetts,  defendants. 

Bill  of  Complaint. 

I.  By  an  act  passed  on  the  5th  of  June,  1830  (Massachusetts  Statutes, 
1830,  c.  4),  a  charter  of  incorporation  was  granted  to  the  plaintiffs  by 


1.  This  bill  of  complaint  is  based  upon 
facts  set  out  in  the  case  of  Boston,  etc., 
R.  Corp.  V.  Salem,  etc.,  R.  Co.,  2  Gray 
(Mass.)  I.  To  this  bill  each  of  the  de- 
fendant corporations  filed  a  general 
demurrer,  which,  upon  consideration 
by  the  court,  was  overruled  and  a  tem- 
porary injunction  granted  as  prayed 
for,  the  court  holding  that  by  the 
consolidation  of  the  defendant  com- 
panies a  competing  road  was  estab- 
lished which  was  in  violation  of  the 
contract  in  the  plaintiff's  charter  that 
it  was  to  be  the  only  railroad  between 
certain  points  for  thirty  years. 

For  formal  parts  of  bills  in  equity, 
generally,  consult  the  title  Bills  in 
Equity,  vol.  3,  p.  417;  of  complaints 
and  petitions,  consult  the  title  Com- 
plaints, vol.  4,  p.  1019. 

Temporary  Injunction  to  Bestrain  Opera- 
tion of  Consolidated  Competing  Boad.  —  In 
Boston,  etc.,  R.  Corp.  v.  Salem,  etc.,  R. 
Co.,  2  Gray  (Mass.)  i,  upon  the  appli- 
cation therefor  the  court  issued  an  in- 
junction to  continue  in  force  while  the 
suit  was  pending  or  until  further 
order  of  the  court,  which  injunction, 
omitting  the  formal  parts,  was  as  fol- 
lows: "to  enjoin  and  restrain  the  said 
defendant  corporations,  and  each  of 
them,  and  their  several  officers,  agents 
and   servants,    and  all   persons  in  the 


employment  of  the  said  defendant 
corporations,  or  either  of  them,  under 
the  penalty  of  thirty  thousand  dol- 
lars, against  carrying,  transporting  or 
conveying  any  persons,  or  property  of 
any  kind,  by  one  continuous  line  of 
conveyance  by  railroad  cars  proceeding 
from  Lowell,  or  from  any  part  within 
five  miles  of  the  northern  terminus  of 
the  Boston  and  Lowell  railroad,  and 
from  thence  to  Boston  in  the  county  of 
Suffolk,  or  to  Charlestown,  Cambridge  or 
Somerville  in  the  county  of  Middlesex, 
or  from  said  Boston,  Cambridge,  Charles- 
town,  or  Somerville,  to  said  Lowell,  or 
any  point  within  five  miles  of  the 
northern  terminus  of  the  Boston  and 
Lowell  railroad,  by  one  continuous  line 
of  conveyance  by  railroad  cars,  between 
the  said  termini;  and  from  doing  any 
act  or  acts  toward  the  effecting  or  ac- 
complishing such  transportation  of 
persons  or  property,  by  connecting  to- 
gether, or  using  in  connection  certain 
sections  of  their  respective  railroads, 
as  follows,  namely:  The  section  of  the 
Boston  and  Maine  railroad  lying  be- 
tween Boston  and  its  intersection  with 
the  Salem  and  Lowell  railroad  at  Wil- 
mington; that  section  of  the  Salem  and 
Lowell  railroad  which  lies  between  the 
last  named  point  and  the  intersection 
of  said  Salem  and  Lowell  railroad  with 


5  E.  of  F.  P.  —  39. 


609 


Volume  5. 


6407. 


CORPORA  TIONS. 


6407. 


the  legislature  of  this  commonwealth  {which  was  set  forth  at  length  in  the 
bill)^  and  by  the  first  section  of  which  John  F.  Loring  and  others 
named,  their  associates,  successors  and  assigns,  were  made  a  body  cor- 
porate, under  the  name  of  the  Boston  and  Lowell  Railroad  Corporation, 
with  power  to  sue  and  be  sued,  and  have  a  common  seal,  and  were 
vested  with  all  the  powers,  privileges  and  immunities  which  were 
or  should  be  necessary  to  carry  into  effect  the  purposes  and  objects 
of  this  act,  as  hereinafter  set  forth.  And  the  said  corporation  were 
authorized  and  empowered  to  locate,  construct  and  finally  complete 

of  said  termini,  as  fare  or  compensa- 
tion for  the  passage  of  any  person  from 
one  of  the  said  termini  to  the  other,  or 
by  selling  a  ticket  for  the  entire  pas- 
sage, or  by  taking,  at  one  and  the 
same  time  and  place,  payment  for  said 
tickets  on  the  several  sections  of  the 
said  respective  railroads  of  the  differ- 
ent corporations,  or  by  taking  payment 
in  a  car,  on  one  section,  for  a  passage 
on  any  other  section  or  sections  of  the 
same  line. 

4th.  Or  by  advertising  any  notice,  in 
any  newspaper,  pamphlet,  written  or 
printed  paper,  card,  circular  letter,  or 
by  printing  or  posting  up,  or  causing 
to  be  printed  or  posted  up,  any  hand- 
bill, placard,  or  other  like  paper,  giving 
notice  that  passengers  or  merchandise 
may  be  carried  and  transported  by 
railroad  through  from  one  of  the  said 
termini  to  the  other  by  one  continuous 
line,  or  that  a  passage  may  be  had 
from  one  of  said  termini  to  the  other 
without  change  of  cars  and  without 
stoppage  or  detention  at  the  said  several 
points  of  intersection. 

5th.  Or  by  painting,  or  in  any  way 
placing  upon  their  cars  or  any  or  either 
of  them,  the  words  '  Boston  and 
Lowell''  or  '  Lowell  and  Boston'  or  by 
continuing  the  same  or  similar  words 
on  their  said  cars  or  any  one  of  them, 
or  in  any  other  way  giving  informa- 
tion that  a  direct  and  uninterrupted 
passage  by  railroad  may  be  had  be- 
tween said  termini;  or  from  entering 
into  any  other  arrangement,  or  doing 
any  other  act,  the  intent  and  purpose 
of  which  maybe  to  effect  a  continuous 
line  of  travel  by  railroad  for  passen- 
gers and  merchandise  in  a  direct  and 
uninterrupted  course  between  said 
termini;  or  from  agreeing  to  use,  or 
actually  using,  the  sections  or  any  sec- 
tions, constituting  parts  of  the  lines  of 
their  respective  railroads,  in  such  man- 
ner as  to  form  a  continuous  line  of  travel 
or  transportation  of  persons  or  prop- 
erty from  the  one  to  the  other  of  the 
said  termini." 


the  Lowell  and  Lawrence  railroad  in 
Tewksbury;  and  that  section  of  the 
Lowell  and  Lawrence  railroad  between 
said  last  mentioned  place  of  intersec- 
tion and  its  termination  in  Lowell;  or  by 
any  variation  or  alteration  of  said 
places  of  junction  and  intersection,  or 
in  any  other  mode  using  any  sections 
of  said  several  railroads  in  such  man- 
ner as  to  form  a  continuous  line  of  con- 
veyance by  railroad  of  persons  or 
property  between  the  said  termini. 
And  the  said  three  defendant  corpora- 
tions, their  officers,  agents,  servants, 
and  all  persons  employed  by  them,  are 
enjoined  and  prohibited  from  using  or 
employing  any  of  the  means  hereto- 
fore stated  towards  the  formation,  es- 
tablishment or  maintenance  of  any 
such  continuous  line  of  conveyance  of 
persons  or  property,  in  any  of  the 
modes  following,  to  wit: 

1st.  By  any  agreement  or  under- 
standing between  themselves,  to  the 
effect  that  either  of  said  corporations 
shall  have  the  use  of  the  cars  of  either 
of  the  other  of  said  corporations,  on 
its  own  section  of  railroad,  in  such  a 
manner  as  to  form  one  continuous  and 
uninterrupted  transportation  of  per- 
sons or  passengers  over  the  said  sec- 
tions of  said  different  railroads,  or  any 
two  of  them,  without  change  of  cars  or 
loss  of  time,  or  either  of  them. 

2d.  Or  by  taking  passengers  at  one 
of  the  said  termini  to  be  carried  or 
transported  to  the  other  of  said  termini, 
without  change  of  cars  at  the  places 
where  any  one  of  the  said  sections  of 
the  said  several  railroads  intersects 
with  either  of  the  other  of  the  said  sec- 
tions; or  in  any  other  mode  from  en- 
gaging, procuring,  employing  and 
using  any  car  or  cars,  at  their  common 
expense  or  otherwise,  for  the  convey- 
ance of  persons  or  property,  for  run- 
ning and  passing  upon  or  over  the  said 
sections  of  their  respective  railroads 
without  change  of  cars,  from  either  of 
said  termini  to  the  other, 
i  3d.  Or  by  receiving  money  at  either 


610 


Volume  5. 


640  7.  CORPORA  TIONS.  6407. 

a  railroad  at  or  near  the  city  of  Boston,  and  thence  to  Loivell  in  the 
county  of  Middlesex,  in  such  manner  and  form  as  they  should  deem 
to  be  most  expedient;  and  for -this  purpose  the  said  corporation  were 
authorized  to  lay  out  their  road,  at  least  four  rods  wide  through  the 
whole  length;  and  for  the  purpose  of  cuttings,  embankments,  and 
stone  and  gravel,  may  take  as  much  more  land  as  may  be  necessary 
for  the  proper  construction  and  security  of  said  road. 

II.  The  plaintiffs  further  allege  that  said  act  of  incorporation  was 
duly  accepted,  and  plaintiffs  became  a  corporation,  possessed  of  all 
the  rights,  powers  and  privileges  conferred  by  said  charter;  that 
subsequently  certain  other  acts,  in  addition  to  said  first  named  act, 
were  passed  by  the  legislature  (^copies  of  ivhich  were  atinexed to  the bill~)\ 
that  the  same  were  duly  accepted  by  the  plaintiffs,  with  the  exception 
oi  \.\i^  second  proviso  of  the  Massachusetts  Statutes  (1836),  chapter 
146;  and  that  thereby  a  contract,  conformable  to  the  terms  of  said 
charter,  and  of  the  acts  thus  accepted,  was  created  between  the  com- 
monwealth  and  the  plaintiffs. 

III.  The  plaintiffs  further  allege,  that,  confiding  in  said  acts  and  the 
privileges  therein  granted  to  them,  they  proceeded  at  great  cost  and 
expense  to  construct  and  complete  the  said  railroad,  and  had  ever 
since  maintained  and  employed  the  same  for  the  transportation  of 
persons  and  property,  and  had  derived  therefrom  just  and  reasonable 
gains  and  profits;  and  in  all  respects  conformed  to  the  provisions 
and  requirements  of  said  acts,  which  by  them  were  to  be  kept  and 
performed;  and  were  consequently  entitled  to  enjoy  the  privileges 
and  receive  the  tolls  in  said  acts  granted  to  them,  and  especially  to 
enjoy  the  privileges  granted  in  the  twelfth  section  of  their  said 
charter,  namely  that  no  other  railroad  should,  within  thirty  years 
from  and  after  the  granting  of  their  said  charter,  be  authorized  to 
be  made,  leading  from  Boston  to  Charlesto^vn  or  Cambridge  to  Lo^vell, 
or  from  either  of  said  places  to  any  place  within  five  miles  of  the 
northern  termination  of  their  said  road;  and  also  to  enjoy  the  right 
of  conveying  and  transporting  persons  and  property  by  railroad  from 
Boston  and  Charlestown  to  Lowell,  and  from  Lowell  to  Boston  and 
Charlestown,  without  hindrance,  competition  or  interruption  from 
any  other  corporation  or  corporations,  authorized  to  own  a  railroad 
between  other  places,  by  making  use  of  their  railroads,  or  portions 
of  their  lines  of  railroad,  to  establish  a  nearly  parallel  railroad  com- 
munication from  Lowell  to  Boston  or  Charlestown,  and  from  Boston  or 
Charlestown  to  Lo7vell,  and  with  a  terminus  in  Lowell,  or  within  fve 
miles  of  the  terminus  of  the  plaintiffs'  road  in  Lowell. 

IV.  And  the  plaintiffs  further  allege,  that  by  Massachusetts  Stat- 
utes (1845),  chapter  159,  which  was  duly  accepted  by  the  Boston  and 
Maine  Railroad  and  the  Boston  and  Maine  Railroad  Extension  Company, 
said  two  corporations,  previously  established  by  the  laws  of  this  com- 
momvealth,  were  united,  and  became  one  corporation,  under  the  name 
of  the  Boston  and  Maine  Railroad,  and  the  owners  and  proprietors  of 
the  railroad  known  as  the  Boston  and  Maine  railroad,  constructed  and 
leading  from  Boston  into  the  state  of  Maine  and  running  through  the 
town  of  Wilmington,  and  having  its  southern  terminus  in  Boston. 
That  by  Massachusetts  Statutes  (1846),  chapter  157,  certain  persons 

611  Volume  5. 


6407.  CORPORATIONS.  6407. 

were  made  a  corporation  by  the  name  of  the  Lowell  and  Andover 
Railroad  Company,  with  powers  to  construct  a  railroad  from  Lowell 
to  a  point  in  or  near  Andover,  and  to  enter  with  their  road  upon  a 
part  of  the  Boston  and  Lowell  rsaXrosidi  in  Lowell,  and  use  the  same; 
that  said  act  was  duly  accepted  and  said  road  built  and  constructed 
by  said  corporation  from  Lowell  to  Andoi'er;  and  that  the  terminus 
of  said  road  in  Lowell  was  constructed  within  half  a  mile  of  the 
northern  termination  of  the  plaintiffs'  road;  and  that  by  Massachu- 
setts Statutes  (1848),  chapter  14,  which  was  accepted  by  said  cor- 
porations, it  was  provided  that  it  should  take  and  be  known  by  the 
name  of  the  Loivell  and  Lawrence  Railroad  Company,  that  by  Massa- 
chusetts Statutes  (1848),  chapter  223,  certain  persons  were  made  a 
corporation  by  the  name  of  the  Salem  and  Lorvell  Railroad  Company, 
that  said  act  was  duly  accepted,  and  said  corporation  constructed 
their  railroad  from  a  point  at  or  near  Salem  to  a  point  on  said  Lowell 
and  Lawrence  railroad,  in  the  town  of  Tewksbury,  where  they  effected 
a  junction  of  their  said  road  with  the  Lowell  and  Lawrence  railroad, 
and  used  the  track  oi  \.\it,  Lowell  and  Lawrence  Railroad  Company  X.(y 
their  terminus  in  Lowell,  and  in  so  doing  constructed  their  railroad 
through  the  town  of  Wilmington,  and  there  intersected  the  Boston  and 
Maine  railroad. 

V.  And  the  plaintiffs  further  allege  that  by  means  of  the  said 
junction  of  the  road  of  the  Louiell  and  Lawrence  Railroad  Company 
with  the  road  of  the  Salem  and  Loivell  Railroad  Company  at  Teivks- 
bury,  and  by  the  intersection  of  the  said  last  named  road  with  the 
road  of  the  Boston  and  Maine  Railroad  at  Wilmington,  the  rail  and 
other  material  of  a  line  of  railroad  communication,  nearly  parallel 
with  the  plaintiffs'  road,  was  created  between  Lowell  and  Boston, 
through  Charlestown,  only  about  one  mile  and  six-tenths  of  a  mile  longer 
than  the  plaintiffs'  road,  and  at  no  point  more  than  three  miles  and 
one-third  oi  a  mile  distant  therefrom,  having  one  terminus  in  Loivell 
within  half  a  mile  of  the  northern  terminus  of  the  plaintiffs'  road, 
and  a  station-house  for  passengers  in  Charlestown,  and  the  southern 
terminus  in  Boston  a  half  d,  mile  nearer  to  the  center  of  business  in 
Boston  than  the  southern  terminus  of  the  plaintiffs'  road,  by  which 
line  passengers  and  property  could  be  conveyed  and  transported 
from  Lowell  to  Charlestotvn  or  Boston,  and  from  Boston  or  Charlestown 
to  Louiell.  But  the  plaintiffs  well  hoped  that  no  such  use  of  said 
road,  or  portions  thereof,  would  be  made  or  suffered  by  the  defend- 
ant corporations,  and  that  the  plaintiffs  would  be  permitted  peace- 
ably, without  interruption,  molestation  or  interference,  to  have  and 
enjoy  the  profit,  benefit  and  advantage  secured  and  intended  to  be 
secured  to  them  by  their  act  of  incorporation,  and  the  acts  in  addi- 
tion thereto,  of  transporting  passengers  and  property  from  Boston  to 
Lowell,  and  from  Charlestown  to  Loivell,  and  from  Loivell  to  Boston, 
and  from  Lowell  to  Charlestown,  and  free  from  the  competition  of  any 
other  railroad,  authorized  to  be  made  by  the  commonwealth,  extend- 
ing from  Boston,  Charlestown  or  Cambridge,  to  any  place  within  five 
miles  of  the  northern  terminus  of  the  plaintiffs'  road;  and  free  from 
the  competition  of  any  other  corporation  or  corporations,  authorized 
by  the  legislature  to  run  railroads  between  other  places  and  to  inter- 

612  Volume  5. 


6407.  CORPORATIONS.  6407. 

sect  and  to  unite  with  each  other,  but  making  use  of  their  roads  or 
portions  thereof,  for  establishing  a  railroad  between  Boston  and 
Lowell.,  nearly  parallel  with  the  plaintiffs'  road,  and  for  transporting 
passengers  from  Boston  and  Charlestown  to  Lowell.,  and  from  Lowell 
to  Boston  and  Charlestown  on'  the  railroad  thus  established. 

VI.  And  the  plaintiffs  further  allege  that  the  defendants,  combin- 
ing, colluding  and  confederating  together  to  deprive  the  plaintiffs  of 
the  reasonable  gains  and  profits  which  they  were  entitled  to  receive 
from  the  transportation  of  passengers  and  property  over  their  road, 
and  to  hinder  them  in  the  enjoyment  of  the  rights  and  privileges  to 
which  they  were  entitled  by  virtue  of  their  said  contract  with  the  com- 
monwealth, and  especially  under  the  twelfth  section  of  their  charter, 
did  enter  into  a  certain  mutual  agreement,  understanding  or 
arrangement  to  convey,  and  cause  to  be  conveyed,  passengers  and 
property  over  portions  of  their  said  roads,  by  means  of  said  junc- 
tions and  intersections,  from  Boston  and  Charlestown  to  the  terminus 
of  the  Lowell  and  Lawrence  railroad  in  Lojvell,  and  from  Lowell  to 
Boston  and  Charlestown,  and  by  causing  cars,  and  trains  of  cars,  to 
run  over  said  portions  of  each  of  their  said  roads  at  such  times  that 
passengers  could  exchange  out  of  the  cars  of  the  Salem  and  Lowell 
Railroad  Company  into  the  cars  of  the  Boston  and  Maine  Railroad,  and 
from  the  cars  of  the  last  mentioned  railroad  company  into  the  cars 
of  the  Salem  and  Lo7vell  Railroad  Company,  at  sard  intersection  at 
Wilmington;  and  in  pursuance  of  said  agreement  and  understanding, 
did,  on  or  about  the  twenty-eighth  day  of  June,  iSSJ,  commence  trans- 
porting, and  had  ever  since  continued  to  transport  passengers  and 
property  over  their  said  line  of  road  as  aforesaid,  from  Boston  to 
Charlestown  to  Lowell  &nd  from  Lowell  to  Boston  and  Charlestown,  using 
therefor  the  road  of  the  Lowell  and  Lawrence  Railroad  Company  from 
its  terminus  in  Lowell  to  the  place  of  its  junction  with  the  road  of  the 
Salem  and  Lou>ell  Railroad  Company  in  Tewksbury,  and  thence  using 
therefor  the  road  of  the  last  mentioned  company  to  its  intersection 
with  the  road  of  the  Boston  and  Maine  Railroad  in  Wilmington,  and 
thence  using  the  said  road  of  the  last  mentioned  corporation;  and  for 
the  purpose  of  more  effectually  injuring  and  competing  with  the  plain- 
tiffs in  the  transportation  of  passengers  between  said  places,  the 
defendants  had  from  time  to  time,  since  entering  into  their 
said  agreement  and  confederacy,  published,  and  caused  to  be  pub- 
lished, and  still  continued  to  publish  and  advertise  the  said  route 
between  Boston  and  Lowell,  so  made  and  formed  as  aforesaid  by  por- 
tions of  their  said  roads,  as  a  railroad  route  between  Boston  and 
Loivell,  by  publishing  notices  thereof  in  newspapers  printed  in  said 
cities  of  Boston  and  Lowell,  and  by  posting  up  printed  notifications 
thereof  in  public  places  in  said  cities  and  in  divers  of  the  station- 
houses  on  the  roads  of  the  defendant  corporations;  and  had  advertised 
and  sold,  and  still  continued  to  advertise  and  sell  tickets  for  the 
transportation  of  passengers  between  said  cities  over  said  portions  of 
their  roads,  and  also  season  tickets  and  package  tickets  for  the  use 
of  families  and  firms,  and  had  employed  and  still  did  employ  agents 
to  divert  and  dissuade  passengers  from  traveling  between  said  cities 
upon  and  over  the  plaintiffs'  road,  and  to  induce  them  to  travel  over 

CIS  Volume  5. 


6407.  CORPORATIONS.  6407. 

the  said  roads  of  the  defendant  corporations;  and  by  means  of  the 
premises  had  succeeded  in  deterring  and  preventing  many  persons 
from  using  the  plaintiffs'  road  for  the  purpose  of  being  transported 
from  Boston  and  Charhstoum  to  Lowell.,  and  from  Lowell  to  Boston  and 
Charlestown,  and  in  depriving  the  plaintiffs  of  the  gain  and  profits 
which  would  have  accrued  to  them  from  the  transportation  of  such 
passengers  between  said  cities  over  their  said  road;  and  that  the 
defendant  corporations,  not  content  with  the  injury  they  had  thus 
inflicted,  and  were  still  continuing  to  inflict  upon  the  plaintiffs,  had 
recently  combined  and  mutually  agreed,  and  now  threatened  and 
intended  to  transport  and  convey  passengers  and  property  between 
Boston  and  Lowell,  and  Charlestown  and  Lou>ell,  over  said  portions  of 
said  roads,  by  means  of  cars,  and  trains  of  cars,  to  run  entirely 
through  without  being  changed,  from  the  said  terminus  in  one  of 
said  cities  to  the  said  terminus  in  the  other,  and  without  the  neces- 
sity of  the  passengers  being  removed  from  one  train  of  cars  into 
another  at  Wilmington;  all  of  which  acts  and  doings  and  threatened 
acts  and  doings  were  and  would  be  a  nuisance  to  the  rights  and 
franchise  of  the  plaintiffs,  legally  acquired  as  aforesaid  under  their 
said  charter  and  acts  in  addition  thereto. 

VII.  And  the  plaintiffs  further  allege  that  they  duly  protested 
against  the  acts  heretofore  enumerated  which  had  already  been  done 
and  which  were  threatened  to  be  done  by  the  said  defendants,  and 
made  a  demand  upon  the  said  defendants  to  desist  therefrom,  and  to 
account  to  them,  the  said  plaintiffs,  for  the  gains  and  fares  received 
for  the  transportation  of  passengers  and  the  property  as  aforesaid, 
but  that  the  defendants  refused  to  desist  as  requested,  or  to  render 
such  account  as  demanded,  and  that  said  defendants  are  still  doing 
and  assert  that  they  will  continue  to  do  the  acts  complained  of, 
claiming  the  right  of  such  transportation  under  their  acts  of  incor- 
poration, and  under  the  Massachusetts  Statutes  (185 1),  chapter  196, 
and  Massachusetts  Statutes  (1852),  chapter  118.  Whereas  plaintiffs 
deny  that  said  acts  did  or  could  legally  confer  upon  the  defendants 
any  such  power. 

Plaintiffs  pray: 

1.  That  {Here  insert  prayer  for  discovery)}- 

2.  That  {Here  insert  prayer  for  an  accounting)!^ 

3.  That  {Here  insert  prayer  for  specific  relief  by  way  of  injunction).^ 

4.  'WiZ.t  {Here  insert  prayer  for  general  relief  ).^ 

5.  That  {Here  insert  prayer  for  due  process). 

Oliver  Ellsworth,  Solicitor  for  plaintiffs. 

1.  Discovery. —  For  proper  prayer  for  3.  Injunction.  —  For  proper  prayer  for 
discovery  in  a  bill  in  equity  con-  an  injunction  consult  the  title  Injunc- 
sult  the  title  Discovery  and  Inspection,  tions. 

2.  Accounting. —  For  proper  prayer  4.  Prayer  for  relief  in  Massachusetts, 
for  an  accounting  consult  the  title  Ac-  consult  title  Bills  in  Equity,  vol.  3, 
COUNTS  AND  ACCOUNTING.  note  2,  p.  444, 

614  Volume  5. 


6408.  CORPORATIONS.  6408. 

b.  For  Mandamus.' 
(1)  To  Compel  Reconstruction  of  Highway. 

Form  No.  6408.* 

To  the  Honorable  the  Judges  of  the  Court  of  Common  Pleas  of 
Venango  county,  State  of  Pennsylvania. 

The  petition  of  \V.  C.  Tyler,  William  Thurston  and  Peter  Winsted, 
road  commissioners  ^  of  Cornplanter  township  in  said  Venango  county, 
and  state  oi Pennsylvania,  respectfully  represents: 

That  in  \W1  a  public  \\\^^2i^  (^Here  set  out  description  of  highway') 
was  laid  out  and  opened  in  due  and  legal  course.  That  in  i857  a 
company  was  incorporated  to  construct  a  turnpike  over  substantially 
the  same  route,  but  it  continued  to  be  maintained  as  a  public  highway 
until  about  \W2,  when  the  Franklin  and  Oil  Creek  Turnpike  Company 
was  incorporated,  took  possession  of  the  highway  under  its  charter, 
and  improved  and  maintained  it  as  a  toll-road  until  in  i855,  when  the 
Atlantic  and  Great  Western  Railroad  Company,  in  the  construction  of  its 
road-bed,  so  encroached  upon  the  turnpike  as  to  injure  it  materially. 
Thereupon  the  turnpike  company  abandoned  the  road,  and  it  became 
and  was  once  more  maintained  by  the  township  as  a  public  highway. 
In  i87i,  the  franchises  and  papers  of  the  said  Atlantic  and  Great  West- 
ern Railroad  Company  were  sold,  and  the  purchasers  organized  as  a  rail- 
road company  under  the  name  oi\.\vt.  New  York,  Pennsylvania  and  Ohio 
Railroad  Company ,'^  the  defendant  hereinabove  complained  of.  That 
the  principal  office  of  the  defendant  company  was  at  the  city  of  Cleve- 
land in  the  state  of  Ohio,  but  that  its  principal  place  of  business  in 
Pennsylvania  was  at  Meadville,  Crawford  county,  in  this  commonwealth 
of  Pennsylvania,  where  an  office  was  maintained  and  where  EHsha 
Derickson,  one  of  its  directors,  resided.^ 

1.  For  fonuB  connected  with  mandamos  subject  to  the  duties  and  liabilities  of  the 
proceedings,  generally,  consult  the  title  constituent  company,  to  whose  fran- 
Mandamus.  chises,    etc.,  it   has   succeeded  by  pur- 

2.  The  petition  for  a  mandamus  in  this  chase.  So  held  where  the  constituent 
case  is  based  upon  the  facts  as  set  out  company  had  originally  injuriously  oc- 
in  Com.  v.  New  York,  etc.,  R.  Co.,  138  cupied  a  certain  public  highway.  Com. 
Pa.  St.  5g.  In  that  case  a  rule  was  v.  New  York,  etc.,  R.  Co.,  138  Pa.  St.  58. 
issued  upon  the  New  York,  Pennsyl-  6.  The  mle  was  served  upon  an  agent, 
vania  and  Ohio  Railroad  Company  to  This  was  held  to  be  sufficient  service, 
show  cause  why  a  mandamus  should  and  it  was  also  held  that  mandamus 
not  issue  requiring  the  reconstruction  was  properly  directed  to  the  consoli- 
of  the  public  highway.  dated  company  instead  of  the  original 

For  formal   parts  of    applications   for  wrong-doer.     The    alternative  writ  of 

mandamus,  generally,  consult  the  title  mandamus  in   the  name  of  the  Com- 

Mandamus;  of  petitions,  generally,  con-  monwealth   ex   rel.   W.   C.  Tyler,   was 

suit  the  title  Petitions.  awarded  as  prayed   for,   and  the   writ 

3.  Boad  commissioners  of  the  proper  served  on  M.  C.  Flower,  agent  of  said 
township  acting  officially  may,  without  company,  Franklin,  Venango  county, 
the  consent  of  the  attorney-general,  in-  Pennsylvania,  and  "  by  leaving  a  true 
stitute  proceedings  by  mandamus  to  and  attested  copy  of  the  same  at  the 
compel  a  railroad  company  to  recon-  office  of  said  company  in  Oil  City,  in 
struct  a  public  highway  injuriously  oc-  said  county,  and  with  A.  N.  Simmons, 
cupied  by  it.  Com.  v.  New  York,  etc.,  at  that  time  in  charge  of  said  office,  for 
R.  Co.,  138  Pa.  St.  58.  Mr.  D.   W.  Guernsy,  the  agent  of  said 

4.  The   consolidated  company   becomes     company,  and  afterwards  upon  D.  V. 

615  Volume  5. 


6409.  CORPORATIONS.  6409. 

The  petitioners  showing  the  premises  and  that  they  are  without 
other  adequate  and  specific  remedy  at  law,  therefore  pray  that  an  alter- 
native writ  of  mandamus  may  be  directed  to  the  said  New  York, 
Pennsylvania  and  Ohio  Railroad  Company,  requiring  said  company  to 
reconstruct  said  public  highway,  generally  known  as  the  Franklin  and 
Oil  City  road,  between  Ren/)  and  Oil  City,  in  said  Cornplanter  township, 
and  for  such  other  and  further  relief  as  to  the  honorable  judges  may 
seem  fit,  and  your  petitioners  will  ever  pray,  etc. 

W.  C  Taylor. 
William  Thurston. 
Peter  Winsted. 
{Verification^'^ 

(2)  To  Compel  Running  of  Passenger  Trains. 

Form  No.  6409.' 

To  the  Supreme  Court  of  the  State  of  Illinois: 

The  petitioner,  Daniel  Webster,  state's  attorney  in  and  for  the 
county  of  Hamilton  in  the  state  of  Illinois,  in  his  official  character, 
complaining  against  the  Louisville  and  Nashville  Railroad  Company,  a 
corporation  duly  and  regularly  organized  and  existing  under  and  by 
virtue  of  the  laws  of  the  state  of  Illinois,  shows  to  this  honorable 
court  the  following  facts,  to  wit: 

On  the  third  6.a.y  of  November,  1S68,  a  majority  of  the  electors  of 
Hamilton  county  voted  to  subscribe  two  hundred  thousand  dollars  to 
the  capital  stock  of  the  Shawneetown  branch  of  the  Illinois  Central 
Railroad  Company.  The  line  of  road  contemplated  by  the  charter 
of .  that  company  extended  from  Tonti,  on  the  Chicago  branch  of 
the  Illinois  Central  railroad,  to  Shawneetotan,  the  intermediate  points 
being  Salem,  Mt.  Vernon  and  McLeansboro.  (2  Private  Laws  (1865), 
pp.  211-220.)  The  proposition  to  subscribe  the  two  hundred  thousand 
dollars  above  mentioned  was  voted  for  upon  the  express  condition 
that  McLeansboro  was  to  be  a  point  with  a  station  on  the  road.  In 
pursuance  of  a  provision  in  the  charter  of  the  St.  Louis  and  South- 
eastern Railway  Company,  approved  March  10,  1869,  the  County  Court 
of  Hamilton  county,  on  the  eleventh  day  oi  June,  iS69,  subscribed  to 
the  capital  stock  of  the  latter  company  the  two  hundred  thousand  dol- 
lars which  had  been  voted  to  the  former  company.    The  St.  Louis  and 

Derickson,  a  director  of  said  company,  by   the    state's    attorney    of  Hamilton 

residing  a.t  Meai/vi/le,  Crawford  county,  county  in   his  official  character  against 

Pennsylvania."     It  was  held  that  where  the    defendant    railroad    company,    to 

the  principal  office  of  the  corporation  compel  it  to  stop  its  trains  at  what  is 

is  without  the  state,  a  writ  of  alterna-  known  as  the  "  old  depot,"  in  McLeans- 

tive   mandamus   may    issue   from    the  boro,    the    county    seat    of    Hamilton 

county   where  its   works  are  situated,  county.    A  peremptory  mandamus  was 

and  to  be  served  on  a  director  residing  awarded  in  conformity  with  the  prayer 

in  an  adjoining  county.     Com.  v.  New  of  the  petitioner. 
York,  etc.,  R.  Co.,  138  Pa.  St.  58.  For  formal  parts  of  applications    for 

1.  Consult  the  title  Verifications.  mandamus,  generally,  consult  the  title 

2.  This  Petition  for  mandamus  is  based  Mandamus;  of  petitions  of  this  charac- 
upon  the  facts  in  People  v.  Louisville,  ter,  generally,  consult  the  title  Peti- 
etc,  R.  Co.,i20  111.  53.    The  proceeding  TIONS. 

was  commenced  in  the  supreme  court 

616  Volume  5. 


6409.  CORPORATIONS.  6409. 

Southeastern  Railway  Company,  by  the  terms  of  its  charter,  was  author- 
ized to  construct,  maintain  and  operate  a  railway  from  a  point  on 
the  Mississippi  river  opposite  St.  Louis  to  Shawneetown,  on  the  Ohio 
river,  by  way  of  Mt.  Vernon,  McLeansboro  and  Equality. 

On  the  twenty-sixth  day  of  March,  iS69,  the  legislature  passed  an 
act  incorporating  the  Evansville  and  Southern  Illinois  Railroad  Company, 
by  the  terms  of  which  that  company  was  authorized  to  construct 
and  operate  a  railway  from  McLeansboro,  Hamilton  county,  through 
the  towns  of  Enfield  st.uA  Carmi,  to  the  state  line,  on  the  Big  Wabash 
river.  The  charter  of  this  company  authorized  the  counties  through 
which  the  road  should  run  to  make  donations  to  it,  upon  such  terms 
as  might  be  agreed  upon  between  it  and  the  said  counties.  (3  Pri- 
vate Laws,  p.  10.)  The  corporate  authorities  of  Hamilton  county, 
on  the  seventh  day  oi  June,  iS70,  in  pursuance  of  the  provisions  of 
said  act,  and  in  conformity  with  an  affirmative  vote  of  a  majority  of 
the  electors  of  the  county,  cast  on  the  second da.y  of  November,  iS69, 
entered  into  a  contract  with  the  Evansville  and  Southern  Illinois  Rail- 
road Company,  whereby  the  county  agreed  to  donate  to  the  company, 
upon  the  completion  of  the  road  and  the  running  of  trains  thereon, 
the  sum  of  seventy-four  thousand  dollars  in  interest  bearing  bonds  of 
the  county.  This  donation,  by  the  terms  of  the  contract,  was  made 
upon  the  following  express  condition:  "That  the  said  railroad  com- 
pany should  erect  and  forever  maintain  a  depot  for  passengers  and 
freight  at  McLeansboro,  within  the  corporate  limits  thereof,  and  not 
exceeding  one-half  mile  from  the  court-house  in  said  town,  and  that 
all  passenger  trains  running  upon  said  road,  whether  express  or 
otherwise,  should  stop  at  said  depot  to  receive  and  put  off  passengers, 
and  that  no  discrimination  should  ever  be  made  against  said  town  of 
McLeansboro,  or  any  person  or  persons  shipping  to  or  from  said 
town,  in  favor  of  any  other  point,  in  the  relative  charges  for  carrying 
either  freight  or  passengers  thereto  or  therefrom."  The  same  con- 
ditions were  imposed  by  the  vote  of  the  people  in  favor  of  the  dona- 
tion. It  was  also  stipulated  in  this  contract,  that  the  company 
might,  without  forfeiture  of  the  contract,  consolidate  with  other 
companies,  on  condition  that  the  rights  of  the  county  in  the  respects 
stated  should  be  fully  protected. 

On  the  twenty-first  day  of  February,  iS71,  the  said  company  was 
consolidated  with  the  St.  Louis  and  Southeastern  Railway  Company, 
under  tHe  name  of  the  latter  company.  On  the  tivel/th  day  of  May 
following,  the  County  Court  entei-ed  an  order  of  record,  approving 
the  consolidation  of  the  two  companies,  upon  the  express  stipulation 
and  understanding,  as  set  forth  in  said  order,  "that  nothing  therein 
contained  should,  in  any  wise,  affect  or  invalidate  any  of  the  duties, 
obligations  and  promises  to  the  county,  made  by  any  of  said  railroad 
companies  prior  to  said  consolidation,"  or  by  the  new  company  since 
the  consolidation.  The  roads  of  the  two  companies  thus  consoli- 
dated were  built  as  contemplated  by  their  respective  charters,  and 
the  t7vo  hundred  thousand  dollars  subscription  was  paid  to  the  con- 
solidated company  in  instalments,  of  one  hundred  thousand  dollars 
each,  on  the  twenty-third  day  of  October  and  the  twenty-eighth  day  of 
November,  iS71,  respectively.     On  the  first  day  oi  January,  iS72,  the 

617  Volume  5. 


6409.  CORPORA  TIONS.  6409. 

county  delivered  to  the  consolidated  company  its  bonds,  amounting 
to  thirty-seven  thousand  dollars,  in  full  payment  and  satisfaction  of 
the  donation  of  seventy-four  thousand  dollars  to  the  Evatisville  and 
Southern  Illinois  Railroad  Company,  the  remaining  thirty-seven  thousand 
dollars  having  been  already  otherwise  settled  and  discharged  by  the 
county,  to  the  satisfaction  of  the  company.  The  entire  subscription 
and  donation  to  the  two  companies  were  fully  paid  and  discharged 
by  the  county.  Both  lines  of  the  consolidated  road  were  completed 
in  1 87^,  and  the  old  depot  in  question  was  located,  as  heretofore 
stated,  within  a  quarter  of  a  mile  of  the  court-house,  and  otherwise 
in  strict  conformity  with  the  conditions  upon  which  the  subscription 
and  donation  were  made  by  the  county  to  these  companies.  On  the 
first  day  of  December,  i869,  prior  to  any  of  the  foregoing  transac- 
tions, except  the  subscription  of  two  hundred  thousand  dollars,  the 
St.  Louis  and  Southeastern  Railway  Company  issued  its  bonds  to  the 
amount  of  two  million  two  hundred  and  fifty  thousand  dollars,  secured 
by  a  deed  of  trust  to  George  Opdyke  and  Philo  C  Calhoun,  upon  the 
company's  road  and  its  appurtenances,  together  with  all  its  rights 
and  franchises.  After  its  consolidation  with  the  Evansville  and 
Southern  Illinois  Railroad  Company,  to  wit,  on  the  first  day  of  March, 
jS71,  the  consolidated  company  issued  another  series  of  bonds, 
amounting  to  one  million  dollars,  secured  by  a  second  trust  deed  to 
the  same  trustees,  upon  the  road,  its  appurtenances,  etc. 

On  the  twenty-eighth  day  of  February,  i871,  the  company  consoli- 
dated with  the  Evansville,  Carmi  and  Paducah  Railroad  Company, 
whose  line  of  road  extended  from  Evansville,  and  formed  a  junction 
with  the  St.  Louis  atid  Southeastern  railway  at  its  eastern  terminus  on 
the  said  Wabash  river.  Consolidations  were  subsequently  made 
with  other  companies  owning  lines  of  road  extending  into  the  states 
of  Kentucky  and  Tennessee.  On  each  consolidation,  a  new  series  of 
bonds  was  issued,  and  secured,  like  the  others,  by  deeds  of  trust 
upon  the  road.  Upon  a  bill  filed  by  the  bondholders,  the  Circuit 
Court  of  the  United  States  for  the  Southern  District  of  Illinois,  on  the 
thirtieth  day  of  August,  iS80,  rendered  a  decree  foreclosing  all  of  the 
above  mentioned  deeds  of  trust.  By  virtue  of  that  decree,  the  St. 
Louis  and  Southeastern  Railway  Company  consolidated,  together  with 
all  the  company's  property  rights  and  franchises,  was,  on  the  six- 
teenth day  of  No7!ember,  iS80,  sold,  at  public  outcry,  to  William  F. 
Whitehouse  and  Charles  W.  Opdyke,  as  representatives  of  the  bond- 
holders. 

On  the  twelfth  day  of  November,  iS80,  the  Southeastern  and  St. 
Louis  Railway  Company  was  organized,  under  the  general  laws  of  the 
state  of  Illinois,  for  the  purpose  of  purchasing  and  operating  said 
railway,  which  purchase  was  consummated  on  the  twenty- seventh  day 
oi  January,  \881.  On  that  day,  Whitehouse  and  Opdyke,  purchasers 
under  the  decree,  conveyed  the  entire  road,  with  everything  per- 
taining to  it,  to  the  said  Southeastern  and  St.  Louis  Railway  Company, 
and  the  latter  company  thereupon  leased  the  same  to  the  Louisville 
and  Nashville  Railroad  Company,  the  present  defendant.  The  defend- 
ant is  now  operating  the  road  under  its  lease,  in  violation  of  the 
contracts  between  the  county  and  the  original  companies. 

618  Volume  5. 


October  Ttvm,  iS97. 
Application  for  rule   to  show 


64 1 0.  CORPORA  TIONS.  •  64 1 0. 

Wherefore  your  petitioner  prays  a  writ  of  mandamus,  directed  to 
the  said  Louisville  and  Nashville  Railroad  Company,  commanding  it 
forthwith  to  run  all  its  said  passenger  trains  to  and  into  the  said 
town  of  McLeansboro,  in  said  county  and  state,  and  there  to  stop 
said  passenger  trains  at  the  pla*ce  in  said  town  of  McLeansboro  com- 
monly known  as  the  "  old  depot "  for  the  purpose  there  of  receiving 
and  of  discharging  of  passengers,  and  for  such  further  orders  in  the 
premises  as  to  the  honorable  court  may  seem  fit  and  proper,  and 
justice  may  require,  etc. 

Daniel  Webster,  State's  Attorney. 

(  Verification.  )i 

c.  For  Mandatory  Injunction  to  Enforce  Decree. 

APPLICATION  FOR  ORDER  TO  SHOW  CAUSE  WHY  WRIT  SHOULD  NOT  ISSUK. 

Form  No.  6410.' 

In  the  Supreme  Court  of  Iowa. 
The  State  of  Iowa,  on  the  relation  of^ 
the  Attorney-General,  plaintiff, 
against 
The  Iowa  Central  Railway  Company,  [  cause, 

defendant. 

Daniel  Webster,  attorney-general  of  the  state  of  Iowa,  for  and  on 
behalf  of  said  state,  states  to  the  court  that,  on  the  twenty- seventh 
day  of  October,  i887,  a  decree  of  this  court  was  rendered  in  the  case 
of  the  State  of  lo^va  against  the  Central  Iowa  Railway  Company,  to 
which  the  attention  of  the  court  is  respectfully  directed,  and 
especially  to  that  part  of  said  decree  following: 

"And  it  is  further  ordered,  adjudged  and  decreed  that  the  said 
Central  Iowa  Railway  Company,  its  officers,  agents  and  servants,  its 
successors,  assigns,  grantees  and  lessees,  and  each  and  every  thereof, 
are  directed  and  commanded,  until  otherwise  ordered,  to  forever 
maintain  and  operate  that  certain  piece  and  part  of  railroad  lying 
and  being  between  the  depot  buildings  in  Northwood,  Iowa,  and 
Manly  Jurution,  lo^va,  and  will  run  its  and  their  trains,  engines,  cars, 
both  passenger  and  freight,  according  to  regular  and  public  schedule 
time,  on  and  over  said  part  of  said  railroad,  giving  to  any  and  all  the 
public  desiring  to  travel  over  the  same,  and  to  ship  freight  over  the 
same,  the  accomodations  and  facilities  incident  to  and  usual  to  such 
desired  service,  and  will  maintain  and  operate  said  part  of  said  rail- 
road in  connection  with  its  other  road  extending  south  from  Manly 
Junction,  Iowa,  to  Albia,  Iowa,  and  without  unusual  and  unnecessary 
delays;  and  to  enforce  this,  the  M/>^  paragraph  of  this  decree,  both 
a  preventive  and  mandatory  writ  of  injunction  will  issue  at  any  time 
on  the  request  of  the  state  of  Iowa  or  its  attorney." 

1.  Consult  the  title  Verifications.  granted   as  asked,  the  court    holding 

2.  This  application  was  made  on  be-  that  the  decree  against  the  predecessor 
half  of  the  state,  and  is  based  upon  the  coinpany  was  binding  on  its  successors, 
facts  set  out  in  State  v.  Iowa  Cent,  although  they  were  not  parties  to  the 
R.   Co.,  83   Iowa  721.     The  order  was  original  action. 

619  Volume  5. 


6411. 


CORPORA  TIONS. 


6411. 


That  the  said  defendant  herein,  \\i^  Iowa  Central  Railway  Company, 
has  become  the  successor,  assignee,  and  grantee  of  the  Central  Io7va 
Railway  Company,  to  which  said  decree  was  directed,  and  as  such 
successor,  is  operating  said  line  of  railway  contrary  to  the  provisions 
of  said  decree,  and  a  violation  thereof,  and  is  disregarding  and  dis- 
obeying the  mandate  thereof. 

Wherefore,  Daniel  Webster,  attorney-general  as  aforesaid,  asks 
that  the  defendant  be  required  to  show  cause  why  it  should  not  obey 
the  mandate  and  order  contained  in  said  decree,  and  why  a  writ  of 
mandatory  injunction  should  not  issue  against  it  thereon,  and  that, 
upon  the  hearing  thereof,  an  order  be  made  requiring  the  defendant 
to  obey  said  decree,  and  that  a  writ  of  mandatory  injunction  be 
ordered  to  issue  against  the  defendant  to  enforce  said  decree. 

Daniel  Webster,  Attorney-General. 

(  Verification^ 


d.  By  Judgrment  Creditor*  of  Constituent  Corporation.' 

(1)  To  Set  Aside  Transfer  of  Property. 


1.  See  the  title  Verifications. 

2.  For  forms  connected  with  suits  by 
judgment  creditors,  generally,  consult 
the  title  Creditors'  Suits. 

3.  To  Enforce  Personal  Liability  of 
Stockholders. —  The  bill  filed  by  judg- 
ment creditors  of  constituent  corpora- 
tion to  enforce  personal  liability  of 
stockholders  of  consolidated  corpora- 
tion in  Hamilton  v.  Clarion,  etc.,  R. 
Co.,  144  Pa-  St.  34,  averred  in  sub- 
stance as  follows: 

"  That  the  Mahoning  &"  Susquehanna 
Railroad  Co.  was  incorporated  by  the 
special  act  of  April  19,  1854,  P.  L.  (1855), 
687,  and  that  on  or  about  November  32, 
j8S/,  the  Conewango  &'  Clarion  Railroad 
Co.  was  duly  incorporated  under  the 
provisions  of  the  act  of  April  4,  1868, 
P.  L.  62;  that  by  articles  of  agreement, 
made  on  or  about  December  6,  iSS/,  the 
said  railroad  companies,  by  virtue  of 
the  act  of  May  16,  1861,  P.  L.  702,  and 
its  supplement  of  April  10,  1869,  P.  L. 
24,  were  merged  and  consolidated  into 
one  company,  called  the  Clarion,  Mahon- 
ing &'  Pittsburgh  Railroad  Company. 

That  the  capital  stock  of  the  said 
Conewango  &>  Clarion  R.  Co.  was  divided 
into  20,ooo  shares  of  the  par  value  of 
%So  each,  and  by  the  chartCT  thereof 
was  subscribed  for  by  certain  persons 
named  in  the  bill,  among  whom  were 
S.  S.  Jackson.,  100  shares;  R.  C.  Wins- 
low,  I  JO  shares;  Thomas  K.  Litch,  joo 
shares. 

That,  by  force  of  the  said  merger 
and  consolidation  and  of  the  statutes, 
such  of  the  defendants  as  were  sub- 


scribers to  the  stock  of  the  Conewango 
&'  Clarion  R.  Co.  became  subject  to  all 
liabilities,  conditions  and  penalties,  in 
the  same  manner  and  with  like  effect, 
as  were  the  original  subscribers  to  the 
stock  of  the  aforesaid  Clarion,  Mahon- 
ing &>  Pittsburgh  R.  Co.,  the  corporation 
defendant,  and  that  the  amounts  for 
which  the  several  stockholders  defend- 
ant were  liable  were  as  set  forth  by 
name  and  amount  in  the  bill,  including 
S.  S.  Jackson,  too  shares,  %s,ooo;  R.  C. 
IVinslow,  /^o  shares,  $7 jroo;  Thomas  K. 
Litch,  JOO  shares,  $75', 000. 

That  the  plaintiffs  were  creditors  of 
the  corporation  defendant,  for  wages, 
work  and  labor  done  and  materials 
furnished  as  follows:  George  C.  Hamil. 
ton,  judgment,  %4,02j.go,  interest  and 
costs;  IV.  A.  Irwin,  judgment,  %264.42, 
interest  and  costs;  Almon  B.  Hamilton, 
judgment,  %j46.go,  interest  and  costs; 
and  that  other  creditors  also  exist,  hold- 
ing large  claims  against  the  corporation 
defendant. 

That  writs  of  fieri  facias  had  issued 
out  of  the  Court  <?/  Common  Pleas  of 
Warren  county,  upon  the  judgments  of 
George  C.  Hamilton  and  Almon  B.  Ham- 
ilton, and  had  been  returned  unsatisfied; 
that  the  said  corporation  defendant  was 
wholly  insolvent  and  had  no  available 
assets  other  than  the  amounts  due  upon 
its  capital  stock,  and  had  taken  no  steps 
to  enforce  payment  from  the  stockhold- 
ers defendant  of  their  unpaid  subscrip- 
tions, or  of  so  much  thereof  as  was 
necessary  to  liquidate  its  indebtedness. 

Wherefore  they  pray: 
JO  Volume  5. 


6411. 


CORPORA  TIONS. 


6411. 


Form  No.  641  i .' 

Neiv  York  Supreme  Court  —  County  of  Dutcness. 
Emory  Cole^  plaintiff, 
against 

The  Miller  ton  Iron  Company,  The  National  Mining  Company 
of  Pawling,  George  S.  Frink  as  an  officer  and  trustee  of  the 
National  Mining  Company  of  Pawling,  The  Mercantile 
Trust  Company  as  trustee  for  bondholders  of  said  MillertOn 
Iron  Company,  C/iarles  J.  Canda  as  receiver  of  the  property, 
etc.,  of  The  Miller  ton  Iron  Company,  The  Dannemora  Iron 
Company,  The  Peninsular  Car  Company,  George  T.  Wilson, 
Louis  F.  Eaton,  The  First  National  Bank  of  Amenia,  The 
First  National  Bank  of  Plattsburgh,  Lucien  L.  Sheddon, 
Henry  Maurer,  Eugene  Kelley,  and  William  H.  Chapman, 
defendants. 
The  plaintiff  complains  of  the   defendants  and,  upon  information 

and  belief,  alleges  the  following  as  his  cause  of  action: 

I.  That  the  defendants  the  National  Mining  Company  of  Pawling, 


1.  That  the  rights  of  the  parties  be 
declared  in  the  premises. 

2.  That  an  account  be  taken  of  the 
amounts  remaining  unpaid  upon  the 
capital  stock  of  the  corporation  defend- 
ant. 

3.  That  an  assessment  be  levied,  in 
such  a  manner  and  form  as  this  court 
may  direct,  for  the  amounts  due  upon 
the  subscriptions  aforesaid  of  the  stock- 
holders  defendant  respectively,  or  so 
much  thereof  as  may  be  necessary  to 
pay  the  ascertained  debts  of  the  said 
corporation  defendant,  and  that  there- 
upon the  said  stockholders  defendant 
may  be  decreed  to  pay  such  respective 
balances  so  as  aforesaid  assessed. 

4.  That  a  receiver  be  appointed  to 
collect  and  receive  all  and  siqgular  the 
assets,  books,  papers,  and  other  prop- 
erty of  the  said  corporation,  and  also 
all  sum  or  sums  due  by  the  said  stock- 
holders defendant,  or  any  of  them,  for 
their  unpaid  stock  subscriptions,  or  for 
any  balances  thereof,  or  such  part  or 
parts  thereof  as  may  be  necessary  and 
sufficient  to  liquidate  the  ascertained 
indebtedness  of  the  said  corporation 
defendant,  together  with  such  other 
powers  and  duties  as  the  court  may 
deem  just  and  equitable. 

5.  That  such  other  and  further  relief 
be  granted  as  may  be  necessary  and 
expedient." 

The  court  held  that  the  allegations 
of  the  bill  were  sufficient  as  against  the 
consolidated  company  and  entered  a 
final  decree  according  to  the  prayer  of 
the  bill,  upon  the  theory  that  the  stock- 

621 


holders  were  subscribers  for  the  stock 
of  one  of  the  prior  companies  merged 
and  consolidated,  and  that  as  such 
they  were  liable  to  the  extent  of  their 
subscriptions  unpaid. 

For  other  forms  relating  to  the  en- 
forcement of  the  personal  liability  of 
stockholders  consult  the  title  Stock 
AND  Stockholders. 

1.  This  complaint  is  copied  from  the  rec- 
ord in  the  case  of  Cole  z/.  Millerton  Iron 
Co.,  133  N.  Y.  164.  The  action  was 
brought  by  the  plaintiff,  a  judgment 
creditor  of  the  constituent  corporation, 
the  National  Mining  Company,  to  set 
aside  a  conveyance  made  by  it  of  all  its 
property  to  the  defendant,  the  consoli- 
dated company,  and  to  release  said 
property  from  the  lien  of  the  mortgage 
executed  by  the  consolidated  corpora- 
tion to  the  defendant,  the  Mercantile 
Trust  Company,  and  for  the  appoint- 
ment of  a  receiver,  etc.  On  appeal,  the 
judgment  of  the  general  term  of  the 
supreme  court,  reversing  the  judgment 
in  favor  of  the  defendants,  entered  upon 
a  decision  in  the  court  at  special  term, 
was  affirmed,  the  court  holding  that  the 
transfer  by  a  corporation  of  all  its  prop- 
erty and  effects,  which  has  the  effect  of 
terminating  the  regular  business,  is  il- 
legal and  not  a  consolidation  according 
to  law. 

For  the  formal  parts  of  complaints  or 
petitions,  generally,  consult  the  title 
CoMPLAi.NTS,  vol.  4,  p.  1019;  of  biUs  in 
equity,  generally,  consult  the  title  Bills 
IN  Equity,  vol.  3,  p.  417. 

Volume  5. 


6411.  CORPORA  TIONS.  6411. 

the  Millerton  Iron  Company^  the  Dannemora  Iron  Company,  and  the 
Mercantile  Trust  Company,  are  all  domestic  corporations  duly  organ- 
ized under  the  laws  of  the  state  of  New  York.  That  the  defendants 
the  First  National  Bank  of  Amenia  and  the  First  National  Bank  of 
Plattsburgh  are  banking  associations,  duly  organized  under  and  in 
pursuance  of  the  laws  of  the  state  of  New  York  and  of  the  United 
States,  the  former  located  and  doing  business  in  the  town  of  Amenia, 
Dutchess  county  and  state  of  New  York,  and  the  latter  being  located 
and  doing  business  in  the  village  of  Plattsburgh,  in  the  county  of 
Clinton  and  state  of  New  York;  that  the  defendant  the  Peninsular  Car 
Company  is  a  foreign  corporation  duly  organized  under  and  in  pursu- 
ance of  the  laws  of  the  state  of  Michigan. 

II.  That  the  said  plaintiff  resides  in  the  said  county  of  Dutchess. 

III.  That  on  or  about  they?r.y/day  of  October,  i2>87,  this  plaintiff 
commenced  an  action  in  the  Supreme  Court  of  the  state  of  New  York, 
in  Dutchess  county,  against  the  said  defendant  the  National  Mining 
Company  of  Pawling,  for  an  injunction  and  damages,  and  such  pro- 
ceedings were  duly  had  thereon  that,  on  the  fourteenth  day  oi  fuly, 
1888,  judgment  was  duly  rendered  and  entered  therein  for  an  injunc- 
tion as  prayed  in  said  action  and  for  damages  in  the  sum  of  t7vo  thou- 
sand seven  hundred  and  seventy-five  ^oWdSs;  and  for  which  sum,  together 
with  costs  as  duly  allowed  and  taxed  at  the  sum  of  two  hundred  and 
eighty-eight  ^oWdiX^  and  seventy-four  cents,  making  together  the  sum  of 
three  thousand  and  fifty-seven  dollars  and  seventy-four  cents,  judgment 
was  duly  docketed  in  the  Dutc/iess  county  clerk's  office  on  the  four- 
teenth do-y  oi  July,  1S88.  That  an  execution  was  duly  issued  upon 
said  judgment  on  the  twenty-fourth  day  of  October,  1888,  to  the  sheriff 
of  the  said  county  of  Dutchess,  that  being  the  county  in  which  are 
located  the  office  and  principal  place  of  business  of  the  said  National 
Mining  Company  of  Pawling,  being  the  defendant  in  said  execution, 
and  said  execution  has  been  returned  wholly  unsatisfied  and  the  said 
judgment  remains  wholly  unpaid  and  unsatisfied. 

IV.  That  at  the  time  of  the  commencement  of  the  said  action  the 
said  defendant  the  National  Mining  Company  of  Pawling  was  the 
owner  and  in  possession  of  various  parcels  of  real  estate  situate  in 
the  said  county  of  Dutchess,  and  of  leases,  minerals  and  mining  rights 
and  privileges  therein,  and  which  were  conveyed  to  it  by  deeds  as  fol- 
lows, to  wit:  (^Here  was  set  out  description  of  the  conveyances.^  That  the 
said  defendant  the  National  Mining  Company,  at  the  time  aforesaid, 
was  the  owner  and  in  possession  of  a  certain  mineral  and  mining 
lease,  executed  by  and  between  Stephen  O.  Davis  and  Hannah  his 
wife,  of  the  one  part,  and  Cornelius  J.  Haight  of  the  other  part,  bearing 
date  December  1,  i870,  and  recorded  in  said  clerk's  office  in  book 
No.  160  of  Deeds,  on  page  319,  and  was  also  owner  and  in  possession 
of  a  large  amount  of  property,  consisting  of  ores,  machinery,  tools, 
materials,  goods,  chattels,  personal  effects  and  fixtures  situate  upon 
the  premises  described  in  the  foregoing  deeds  and  elsewhere. 

V.  And  the  plaintiff  further  shows  that  the  business  and  objects 
for  which  the  said  defendant  the  National  Mining  Company  of  Pawl- 
ing was  organized,  as  appears  by  its  certificate  of  incorporation,  was 
*'  the  mining  of  iron  ore  and  the  preparation  of  the  same  for  market, 

622  Volume  5. 


6411.  CORPORATIONS.  6411. 

and  the  selling  thereof  and  the  manufacture  of  iron,"  and  its  stock 
was  full  paid ;  and  that,  on  or  about  the  twentieth  day  of  February, 
iS88,  in  disregard  of  the  said  lawful  business  and  objects  of  the  said 
corporation,  and  for  a  purpose  foreign  to  its  organization  and  in 
fraud  of  the  rights  and  interests  of  its  stockholders  and  creditors, 
among  whom  was  the  plaintiff,  upon  his  claim  in  the  said  action  then 
pending,  IVilliam  H.  Barnum,  since  deceased,  and  George  S.  Frink  as 
president  and  secretary  of  the  said  National  Mining  Company  of  Pawl- 
ing, by  two  deeds  bearing  date  on  that  day,  did  sell,  assign,  transfer 
and  convey  unto  the  defendant  the  Millerton  Iron  Company  all  the 
real  and  personal  property  owned  and  possessed  by  the  said  National 
Mining  Company  of  Pawling,  for  the  expressed  consideration  of  two 
dollars  and  the  assumption  by  the  grantee  of  certain  debts  of  the 
%^\^  National  Mining  Company  of  Pawling \  that  the  said  deeds  of 
conveyance  included  all  the  property  of  every  kind  owned  by  the 
said  National  Mining  Company  and  left  the  said  corporation  wholly 
insolvent  and  caused  an  entire  suspension  of  its  lawful  business, 
which  has  ever  since  continued  and  still  continues,  being  now  more 
than  a  year;  that  the  purpose  and  results  of  the  said  alienation  of 
the  property  of  the  said  National  Mining  Company  were  well  known 
to  the  said  grantee  the  Millerton  Iron  Company,  the  said  William  H. 
Barnum  and  George  S.  Frink,  by  whom  the  same  was  made,  being 
also  officers  or  trustees  of  the  said  Millerton  Iron  Company,  which 
said  company  was  then  insolvent. 

VI.  And  the  said  plaintiff  further  shows  that,  at  a  meeting  of  the 
stockholders  of  the  said  Millerton  Iron  Company,  duly  held  pursuant 
to  notice,  on  the  twenty-sixth  day  of  December,  iB87,  the  capital  stock 
of  the  said  Millerton  Iron  Company  was  increased  from  one  hundred 
and  fifty  //;<?«  ja«^  dollars  to  five  hundred  thousand  dioWdiX^,  in  ten  thou- 
sand shdiVts  oi  fifty  doW^vs  each,  and  in  the  certificate  of  such  pro- 
ceedings and  increase,  duly  filed,  it  is  declared  that  the  "entire 
increase  of  three  hundred  and  fifty  tfiousand  dollars  shall  be  issued 
for  property  to  be  acquired  by  said  company  in  its  business." 
That  on  the  said  twentieth  day  of  February,  1888,  the  said  Millerton 
Iron  Company  acquired  by  purchase  and  conveyance  from  the  said 
Dutchess  Mining  Company  a  large  amount  of  real  and  personal  property 
and  minerals  and  mining  rights  for  the  expressed  consideration  of 
three  hundred  and  fifty  thousand  dollars  and  the  assumption  of  the 
debts  and  obligations  of  the  said  Dutchess  Mining  Company,  which 
property  the  plaintiff  believes  and  alleges  to  be  the  property  proposed 
to  be  acquired  by  and  in  consideration  of  the  issue  of  the  said  increase 
of  stock  made  and  declared  as  aforesaid. 

VII.  And  the  plaintiff  further  shows  that  on  or  after  the  said 
twentieth  day  of  February,  \'B88,  the  said  Millerton  Iron  Company  exe- 
cuted and  delivered  to  the  defendant  the  Mercantile  Trust  Company 
a  mortgage  upon  the  property  so  acquired  as  above  stated  from  the 
said  National  Mining  Company  of  Paivling  (txct^t  that  part  mentioned 
in  subdivisions  3  and  9  of  clause  IV.  of  this  complaint),  and  upon  the 
property  so  acquired,  as  above  stated,  from  the  Dutchess  Mining  Com- 
pany, and  upon  property  previously  acquired  by  the  said  Millerton 
Iron  Company  and  then  owned  by  it,  to  secure  bonds  of  the  said  last 

628  Volume  5. 


6411.  CORPORA  TIONS.  6411. 

named  company  to  be  issued  to  the  amount  of  two  hundred  and  fifty 
thousand  dollars,  which  said  mortgage  was  made  and  executed  by  and 
with  the  consent  of  the  holders  of  only  twenty-two  hundred  and  eighty- 
two  and  34-100  shares  of  the  stock  of  said  Millerton  Iron  Company^ 
and  was  therefore,  as  plaintiff  is  advised  and  believes  and  alleges, 
unauthorized,  unlawful  and  void  for  the  reason  that  the  number  of 
shares  of  the  stock  of  said  company  so  consenting  is  less  than  two- 
thirds  of  the  whole  number  of  shares. 

VIII.  And  the  plaintiff  further  shows  that  an  action  has  been 
commenced  by  the  said  Mercantile  Trust  Company  for  the  foreclosure 
of  the  said  mortgage,  in  which  it  is  claimed  that  two  hundred  and 
twenty-five  of  said  two  hundred  and  fifty  bonds  were  duly  issued  for 
value;  but  the  plaintiff  is  informed  and  believes  and  alleges  that,  if 
said  mortgage  shall  be  held  to  be  valid,  not  more  than  twenty-five 
of  said  one  thousand  dollar  bonds  are  now  held  by  corporations  or 
persons  who  acquired  the  same  in  good  faith  and  for  value. 

IX.  And  the  plaintiff  further  shows  that  the  defendants  George  T. 
Wilson^  Louis  F.  Eaton,  the  First  National  Bank  of  Amenia,  the  First 
National  Bank  of  Plattsburgh,  the  Dannemora  Iron  Company,  the  Pen- 
insular Car  Company,  Henry  Maurer,  Eugene  Kelly,  William  H.  Chap- 
man, and  Lucien  L.  Sheddon  are  made  defendants  herein  as  judgment 
creditors  of  the  said  Millerton  Iron  Company,  having  liens  on  the 
property  of  the  said  last  named  company  but  subsequent  to  the  claims 
of  this  plaintiff  as  against  the  property  of  said  National  Mining  Com- 
pany so  transferred  as  above  shown  to  said  Millerton  Iron  Company, 
and  said  Charles  J.  Canda  is  made  defendant  as  receiver  of,  etc.,  of 
the  property  of  said  Millerton  Iron  Company,  duly  appointed  in  said 
action  by  the  Mercantile  Trust  Company,  and  no  personal  claim  is 
made  as  against  any  of  said  defendants. 

Wherefore,  the  said  plaintiff  demands  judgment  in  this  action: 

1.  Canceling  and  setting  aside  and  declaring  void  and  of  no  effect 
the  alienation  of  the  property  of  the  National  Mining  Company  made 
by  the  said  William  H.  Barnum,  now  deceased,  and  George  S.  Frink,  to 
X\\t  Millerton  Iron  Company  as  hereinbefore  set  forth. 

2.  Declaring  unauthorized,  unlawful  and  void  the  said  mortgage 
made  by  the  Millerton  Iron  Company  to  the  Mercantile  Trust  Company 
as  against  the  said  property  of  the  National  Mining  Company  of 
Pawling;  or,  if  the  same  shall  be  held  to  be  valid,  determining  what 
portion  of  the  bonds  of  the  said  Millerton  Iron  Company  are  entitled  to 
be  paid  therefrom  as  against  the  claim  and  right  of  this  plaintiff. 

3.  Sequestrating  the  said  property  of  the  defendant  the  National 
Mining  Company  of  Pawling,  and  directing  a  just  and  fair  distribution 
thereof,  and  of  the  proceeds  thereof  among  its  fair  and  honest  cred- 
itors in  the  order  and  in  the  proportions  prescribed  by  law  in  the  case 
of  voluntary  dissolution  of  a  corporation. 

4.  Enjoining  and  restraining  the  said  defendant  the  Mercantile 
Trust  Company  from  taking  any  further  proceedings  in  its  said  action 
as  against  the  said  property  of  the  National  Mining  Company  of 
Pawling. 

5.  Appointing  a  receiver  herein  of  the  said  property  and  effects  of 
the  said  National  Mining  Company  of  Pawling,  and  directing  a  sur- 

624  Volume  5. 


6412.  CORPORA  TIONS.  64 1 2 . 

render  of  the  said  property  and  effects  to  him  by  the  above  named 
Charles  J.  Canda  as  receiver. 

6.  For  such  other  or  further  judgment  or  relief  as  to  this  court  may 
seem  just  and  agreeable  to  equity. 

William  Downing^  Attorney  for  PlaintifiF. 

(2)  To  Subject  Property  to  Lien  and  Judgment  against 
Constituent  Corporation. 

Form  No.  64  \z} 

In  the  Superior  Court  of  the  County  of  San  Diego,  State  of 
California. 

Alfred Bla/u:,  p\3iintiS,  '\  Complaint  —  Action  to  subject  to 

against  I       a   lien  of  a  judgment  property 

T/ie  Paymaster  Mining  Company,   j       alleged    to   have  been  fraudu- 
defendant.  J       lently  conveyed. 

Alfred  Blanc,  the  plaintiff  in  the  above  entitled  action,  complain- 
ing of  the  Paymaster  Mining  Company,  the  defendant  in  said  action, 
alleges: 

I.  That  the  Esperanza  Company  is  a  foreign  corporation  doing  busi- 
ness in  the  territory  oi  Arizona.  That  in  February,  1884,  it  became 
indebted  to  the  plaintiff  upon  t7uo  promissory  notes,  one  for  the  sum 
of  one  thousand doWars  payable  on  demand,  and  the  other  for  the  sum  of 
fve  thousand  doUsLTs  payable  on  the  twelfth  day  of  February,  i8<?5;  that 
thereafter  the  said  Esperanza  Company  became  indebted  to  its  various 
stockholders,  and  a  pretended  assignment  was  made  of  all  its  prop- 
erty to  its  acting  managing  officer  and  agent,  one  Blaisdell,  for  the 
alleged  purpose  of  paying  the  debts  of  such  corporation,  and  that 
the  said  Blaisdell  made  a  pretended  sale  of  such  property  at  public 
auction,  at  which  sale  he  claims  to  have  become  the  purchaser  of  the 
tools,  machinery,  stamp  mills,  engines  and  boilers  belonging  to  said 
Esperanza  Company,  all  of  the  value  of  seventy-five  thousand  dollars,  at 
a  purely  nominal  sum,  to  wit,  the  sum  oi  fifty  dollars. 

II.  That  thereafter,  the  said  Blaisdell,  together  with  the  principal 
officers,  agents  and  stockholders  of  the  said  Esperanza  Company,  pro- 
ceeded to  organize  the  defendant  company,  and  turned  over  to  it  all 
of  said  property,  for  the  purpose  of  cheating  and  defrauding  plain- 
tiff and  other  creditors  of   the  Esperanza  Company.     That  the  said 

1.  The  complaint  in  tMs  action  is  based  apply  where  the   managing  agent  of 

upon  facts  set  out  in  Blanc  v.  Paymas-  the   insolvent  corporation  has  fraudu- 

ter  Min.  Co.,  95  Cal.  527.      Defendant  lently  transferred  all  the  property  to  a 

interposed    a   demurrer   to   this    com-  new  corporation  without  consideration;  . 

plaint,  which  was  properly  overruled,  and  that  in  such   a  case  the  new  cor- 

On  appeal  it  was  held  that  the  com-  poration    will    be   held   liable   for   the 

plaint   stated   a   cause   of   action,  and  indebtedness  of  the  old  to  the  extent 

that  the  Esperanza  company  and  Blais-  of  the  value  of  the  property    received 

dell  were  not  necessary  parties  to  the  without  consideration  from  it. 
action,  the  court  holding  that  while  a        For  formal  parts  of  complaints,  gener- 

creditor   ordinarily    must   have  recov-  ally,  consult  the  title  Complaints,  vol. 

cred    judgment     and     had     execution  4,  p.  1019;  of  bills  in  equity,  generally, 

returned     unsatisfied    before    he    can  consult  the  title  Bills  in  Equity,  vol. 

resort  to  equity  to  reach  fraudulently  3,  p.  417. 
transferred  property,  the  rule  does  not 

5  E.  of  F.  P.  —  40.  625  Volumes. 


6413.  CORPORATIONS.  '  6413. 

defendant  the  Paymaster  Mining  Company  was  so  organized  by  the 
said  Biaisdell,  the  officers  and  agents  and  stockholders  of  the  said 
Esperanza  Company^  with  the  view  of  taking  and  receiving  said  prop- 
erty as  a  part  of  its  plan  for  defrauding  the  creditors  of  the  Esper- 
anza Company^  and  particularly  the  plaintiff,  and  that  the  said 
defendant  never  paid  any  consideration  whatever  for  said  property. 

III.  That  the  said  Esperanza  Company  has  heretofore  failed  and 
refused  to  pay  the  just  demands  of  the  plaintiff,  and  so  has  the 
defendant  herein,  its  alleged  successor,  although  plaintiff  has  made 
repeated  demands  upon  the  Esperanza  Company,  its  former  officers 
and  agents,  and  upon  the  defendant  herein,  the  Paymaster  Mining 
Company. 

Wherefore,  plaintiff  asks  judgment  that  the  pretended  sales  of  the 
said  Blaisdell,  the  defendant  herein,  be  declared  void;  that  it  be 
adjudged  that  the  said  defendant  company  holds  the  said  property 
charged  with  the  plaintiff's  claim  of  six  thousand  dollars,  and  interest 
thereon  to  date,  together  with  the  costs  of  this  action;  that  the  said 
property  be  sold  to  satisfy  the  sum  claimed  and  for  such  other  and 
further  relief  as  to  the  court  may  seem  just. 

Alfred  Blanc. 

(  Verification.  )^ 

e.  By  Trustee  of  Stock  Asking  Instructions. 

ANSWER  OF  DIRECTORS  DENYING  INTENTION  TO  CONSOLIDATE. 

Form  No.  6413.' 

In  the  Superior  Court. 
Norfolk,  ss. 

John  W.  Treadwell 

against 

The  Salisbury  Manufacturing  company  and 

{names  of  directors  of  said  Company). 

Answer. 

1.  The  said  defendants  admit  all  the  allegations  of  the  bill  previous 
to  the  statements  therein  as  to  the  intended  sale,  the  truth  of  which 
said  statements  they  deny. 

2.  The  defendants  admit  that  a  sale  of  the  property  of  the  Salisbury 
Manufacturing  Company  was  contemplated,  and  that  if  such  sale  could 
be  advantageously  and  satisfactorily  effected  they  intended  to  take  the 
necessary  legal  steps  to  close  and  wind  up  that  company  and  surrender 
their  charter. 

1.  Consult  the  title  Verifications.  corporation,  the  bill  also  seeking  to  re- 

2.  The  bill  in  equity  in  Treadwell  v.  strain  the  corporation  from  making  such 
Salisbury  Mfg.  Co.,  7  Gray  (Mass.)  393,  sale.  It  was  held  that  a  trustee  could 
was  filed  by  the  executors  and  trustees  not  maintain  such  a  bill.  The  answer 
under  the  will  of  Thomas  Cordis  against  in  the  text  is  based  upon  the  facts  set 
the  defendant  and  its  directors,  to  ob-  out  in  that  case. 

tain  the  instructions  of  the  court  as  to  For  the  formal  parts  of  answers,  gener- 
their  duties  in  case  the  corporation  ally,  consult  the  title  Answers  in  Code 
should  consummate  an  alleged  contem-  Pleading;  of  pleas,  generally,  consult 
plated  sale  of  all  their  property  to  a  new     the  title  Pleas. 

626  Volume  5. 


6413.  CORPORA  TIONS.  6413. 

3.  The  defendants  deny  that  the  said  property  could,  if  offered  at 
public  sale  or  thrown  upon  the  public  competition,  be  sold  for  more 
than  two  hundred  and  fifty  thousand  ^o\\dir%. 

4.  The  defendants  deny  that  the  votes  of  the  company  were  illegal, 
and  aver  that  it  was  not  deteroHned  that  the  same  persons  making  the 
same  as  directors  would  be  interested  as  stockholders  or  directors  in 
the  purchase  by  the  new  corporation,  though  it  was  possible  that  they 
might  be  such  stockholders  or  directors. 

5.  The  defendants  further  allege  that  the  votes  were  duly  passed 
after  notice  to  every  stockholder  and  were  legal  and  valid ;  that  on  full 
inquiry  and  on  consideration  of  the  various  modes  of  selling  and  dis- 
posing of  the  property  for  the  best  interests  of  all  the  stockholders, 
none  appeared  or  was  so  discreet  and  expedient  as  a  sale  of  the  real 
estate  and  fixtures  to  the  Salisbury  Mills  at  a  price  of  t7vo  hundred  and 
fi/ty  thousand doWsLTS,  payable  in  stock  of  that  corporation,  and  that  the 
directors  had  therefore  opened  negotiations  for  such  a  sale,  but  had 
made  no  definite  or  binding  offer,  and  were  ready  and  desirous  to  sell 
on  the  best  terms  that  could  be  had;  that  the  stockholders  and  direc- 
tors, in  all  their  proceedings,  had  acted  with  sound  discretion,  and  in 
good  faith  toward  every  stockholder,  and  for  the  best  interests  of  all, 
and  that  they  and  the  Salisbury  Mills  were  desirous  to  admit  every 
stockholder  in  the  old  corporation  to  take  and  hold  an  interest  in  the 
new  one,  to  any  extent  he  pleased,  but  that  was  and  would  be  left 
optional  with  him;  that  it  had  been  well  understood  ever  since 
February  last,  by  all  the  stockholders,  that  the  stock  in  the  new  cor- 
poration would  be  to  a  very  large  extent  held  by  the  old  stockholders; 
that  by  means  of  the  establishment  of  such  new  corporation  additional 
capital  would  be  obtained,  which  could  be  had  in  no  other  way,  and 
that,  if  such  new  corporation  could  be  succcessfully  organized,  the 
existing  business  could  be  continued  without  interruption. 

6.  The  defendants  further  deny  that  the  court  has  jurisdiction  of  the 
bill  filed  herein;  or  that  the  corporation  had  surrendered  their  fran- 
chise or  had  offered  to  do  so,  or  had  done  any  act  necessarily  and  cer- 
tainly tending  to  or  initiatory  of  a  dissolution,  surrender  or  winding 
up.  That,  on  the  contrary,  they  aver  that  now  and  ever  after  the  sale 
that  subject  would  be  retained  wholly  in  the  control  and  at  the  discre- 
tion of  the  corporation,  on  a  view  of  the  ascertained  fitness  or  unfit- 
ness of  such  a  result;  that  the  corporation  were  solvent,  able  to  pay 
all  their  debts  and  have  a  surplus,  if  prudently  and  discreetly  con- 
ducted, and  if  the  administration  was  left  in  the  hands  of  a  majority 
of  the  stockholders,  acting  by  directors  in  whom  they  and  the  business 
community  have  confidence;  but,  that  if  the  administration  was  taken 
from  their  hands,  or  subjected  to  interference  or  control  of  others,  great 
inconveniences  and  sacrifices  must  result;  and  that  irreparable  mis- 
chief would  be  occasioned  to  all  persons  interested  in  the  company  by 
the  granting  of  an  injunction. 

7.  The  defendants  further  aver  that  it  was  not  their  intention  or 
purpose  to  hold  the  stock  as  a  corporation  in  another  corporation,  but 
to  make  a  sale  of  the  property  for  the  purposes  of  paying  the  debts  of 
the  corporation  and  ultimately  to  wind  up  their  affairs,  and  to  dis- 
tribute the  stock  obtained  among  the  individual  members,  if  they  will 

687  Volume  ?. 


64 1 4.  CORPORA  TIONS.  6414. 

accept  it,  otherwise  to  reduce  it  to  cash  and  distribute  its  value  among 
such  members;  and  that  they,  as  a  corporation,  did  not  procure  the 
charter  of  the  new  corporation,  nor  as  a  corporation  do  anything  in 
relation  thereto. 

8.  The  defendants  further  aver  that  it  was  their  purpose  after  such 
sale,  if  it  should  be  effected,  if  it  should  appear  expedient  and  needful, 
to  apply  to  the  legislature  or  to  this  court,  for  a  dissolution  of  the 
corporation,  according  to  law;  and  that  it  would  be  an  expedient  and 
just  act  toward  themselves  and  their  creditors  if  it  should  be  dissolved 
and  wound  up  and  that  the  legislature  or  this  court,  on  petition, 
might  order  the  same,  and  this  whether  any  new  corporation  had  been 
or  should  be  formed  or  not,  and  whether  the  contemplated  sale  should 
be  consummated  or  not. 

Jeremiah  Mason,  Solicitor  for  Defendant. 

f.  Upon  Causes  of  Action  Existing  against  Constituent  Corporation. 
(1)  On  Bonds.1 

Form  No.  6414.* 

New  York  Supreme  Court  —  Kings  County. 
Maria  T.  Polhemus,  plaintiff, 
against 
The  Fiichburg  Railroad  Company,  defendant.^ 

The  plaintiff  above  named,  appearing  herein  by  Masten  dr*  Nichols, 
her  attorneys,  complains  of  the  above  named  defendant,  and  for 
cause  of  complaint  alleges  and  shows  to  the  court  as  follows: 

First  —  For  her  first  cause  of  action: 

I.  The  plaintiff  alleges  that  on  or  about  the  second  day  of  January, 
187J,  the  Troy  and  Boston  Railroad  Company,^  di  corporation  created 
and  then  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
New  York,  made  and  executed  its  certain  promissory  note,  duebill  or 
coupon,  dated  on  that  day,  wherein  and  whereby  it  promised  to  pay  to 
the  holder,  or  bearer,  thereof  the  sum  of  thirty-five  AoWds^  on  \.\\t.  first 
day  oi  July,  iS87,  at  the  Rank  of  Commerce,  in  the  city  of  New  York. 

1.  For  forms  in  actions  on  bonds  or  For  the  formal  parts  of  complaints, 
bills  and  notes,  generally,  consult  the  generally,  consult  the  title  Complaints, 
titles  Bonds  (Actions  on),  vol.  3,  p.  528,  vol.  4,  p.  lorg;  of  Bills  in  Equity,  gen- 
and  Bills  and  Notes,  vol.  3,  p.  260.  erally,  consult  the  title  Bills  in  Equity, 

2.  This  complaint  is  copied  from  the  vol.  3,  p.  417. 

record  in  the  case  of  Polhemus  v.  Fitch-  3.  Sued  by  New  Name.  —  Where  a  rail- 
burg  R.  Co.,  123  N.  Y.  502.  Plaintiff  road  company,  after  the  execution  of 
company,  the  holder  of  bonds  of  the  promissory  notes,  is  consolidated  with 
Troy  and  Boston  Railroad  Company,  another  company  and  a  new  name  as- 
sued  the  defendant  to  recover  upon  sumed,  the  company  may  be  sued  by 
certain  interest  coupons,  on  the  ground  the  new  name.  Columbus,  etc.,  R.  Co. 
that  by  the  consolidation  of  the  Troy  »,  Skidmore,  69  111.  566. 
company  with  the  Fitchburg  company  4.  The  name  of  the  constituent  corpora- 
the  defendant,  as  a  new  corporation  tion,  against  which  the  cause  of  action 
by  force  of  consolidation,  assumed  lia-  arose,  must  be  stated.  Langborne  v, 
bility  upon  the  bonds.  Recovery  was  Richmond  City  R.  Co.,  (Va.  1894)  19 
properly  had  by  plaintiff,  which  was  S.  E.  Rep.  122. 
sustained  on  appeal. 

628  Volume  5. 


6414. 


CORPORA  TJONS. 


6414. 


That  said  promissory  note,  duebill  or  coupon  was  one  of  a  series  of 
one  hundred  such  promissory  notes,  duebills  or  coupons,  all  bearing 
even  date  and  similar  in  their  tenor,  except  as  to  the  respective  dates 
of  the  payment  thereof,  attachjsd  and  annexed  to  a  certain  bond  or 
obligation  in  writing,  nwvnbGrt^  two  hundred  and  seventy,  dated  the  said 
second  d3.y  ol  January,  iS75,  at  the  city  of  Troy,  New  York,  and  duly 
made  and  issued  by  the  said  Troy  and  Boston  Railroad  Company. 
That  in  and  by  said  bond,  or  obligation  in  writing,  th6  said  railroad 
company  promised  and  agreed  to  pay  the  holder,  or  bearer,  thereof 
the  principal  sum  of  one  thousand  dollars  on  the  first  day  of  July,  in 
the  year  192J^^  and  interest  thereon  at  the  rate  of  seven  per  centum 
per  annum,  to  be  paid  semiannually  on  \)!\^  first  days  oi  January  and 
July  in  each  and  every  year,  on  presentation  of  the  aforesaid  promis- 
sory notes,  duebills  or  coupons  at  the  said  Bank  of  Commerce  in  the 
city  of  New  York. 

II.  This  plaintiff  further  alleges,  upon  information  and  belief,  that 
heretofore  Wit  Fitchburg  Railroad  Company  ^2i%  a  foreign  corporation, 
created  and  existing  under  and  by  virtue  of  the  laws  of  the  state  of 
Massachusetts,  and  owning  a  line  of  railroad  which  formed  a  continu- 
ous line  with  the  line  of  railroad  owned  by  the  said  Troy  and  Boston 
Railroad  Company;  that  on  or  about  the  twenty-sixth  day  oi March, 
iS87,  the  said  Fitchburg  Railroad  Company  and  its  directors  and  the 
said  Troy  and  Boston  Railroad  Company  and  its  directors  made  and 
entered  into  an  agreement  in  writing  ^  bearing  date  the  said  twenty- 


1.  The  consolidation  agreement  referred 
to  in  the  text  was  as  follows:  "  Articles 
of  Agreement  made  this  twenty-sixth 
day  of  March,  A.  D.  eighteen  hundred 
and  eighty-seven,  between  the  Fitchburg 
Railroad  Company,  a  railroad  corpora- 
tion duly  organized  under  the  laws  of 
the  Slate  of  Massachusetts,  and  by  the 
Directors  of  said  Company  of  the  first 
part,  and  the  Troy  and  Boston  Railroad 
Company,  a  railroad  corporation  duly 
organized  under  the  laws  of  the  State  of 
New  York,  and  by  the  Directors  of  said 
Company  of  the  second  part. 

Witnesseth:  That  whereas,  the  said 
companies  are  owners  and  operating 
railroads  which  form  a  continuous  and 
connected  line  of  railroad  with  each 
other,  extending  from  the  City  of  Troy 
in  the  State  of  New  York,  to  the  City  of 
Boston  in  the  State  of  Massachusetts,  and 
partly  within  and  partly  without  each 
of  said  States,  and  partly  within  the 
State  of  Vermont,  and  desire  to  merge 
and  consolidate  the  capital  stock,  fran- 
chises and  property  of  said  companies 
pursuant  to  law;  now  therefore,  in  con- 
sideration of  the  premises  and  of  the 
agreements  of  each  party  with  the 
other,  it  is  hereby  agreed  that  upon  and 
after  the  third  day  of  May  next,  the 
capital  stock,   franchises  amd  property 


of  the  said  companies  shall  be  and  re- 
main merged  and  consolidated  into  one 
corporation  upon  the  following  terms 
and  conditions: 

1.  The  name  of  the  new  corporation 
shall  be  The  Fitchburg  Railroad  Com- 
pany. 

2.  There  shall  be  a  Board  of  thirteen 
Directors  to  manage  the  affairs  of  the 
consolidated  company,  and  the  follow- 
ing-named persons,  residing  at  the 
places  set  opposite  their  names,  shall 
be  the  first  directors  and  officers  of  such 
consolidated  company,  to  wit:  {Here 
was  listed  the  names  and  residences  of  the 
president,  secretary,  treasurer  and  thirteen 
directors^ 

3.  The  capital  stock  of  said  consoli- 
dated corporation  shall,  until  the 
amount  thereof  shall  be  changed  ac- 
cording to  law,  consist  oi  fifteen  million 
one  hundred  and  ninety-four  thousand  six 
hundred  dollars  {$ij,ig4,6oo),  divided 
into  shares  of  one  hundred  dollars  (%roo) 
each,  to  be  issued  as  below  set  forth. 
Of  this  amount  of  capital  stock,  one 
hundred  and  one  thousand  nine  hundred 
and  forty-six  {ioi,g46)  shares  shall  be 
preferred  stock,  entitled  to  the  same  pre- 
ferences and  priority  (except  as  herein 
below  set  forth)  as  the  present  preferred 
stock  of  Xht  Fitchburg  Railroad  Company, 


029 


Volume  5. 


6414. 


CORPORA  TIONS. 


6414. 


sixth  day  oi  March,  iS87,  and  providing  for  a  consolidation  of  the  said 
two  corporations  from  and  after  the  third  da.y  of  May,  iS87,  pursuant 
to  the  laws  of  the  state  of  JVe7v  York;  that  said  agreement  was  after- 
ward duly  adopted  by  the  stockholders  of  the  said  corporations  in 
form  and  manner  as  required  by  the  laws  of  the  state  of  New  York, 
and  thereafter  said  agreement,  with  the  certificates  required  by  the 
laws  aforesaid,  was  duly  filed  in  the  office  of  the  secretary  of  state  of 
the  state  oi  New  York;  that  thereby  pursuant  to  such  agreement  the 
said  two  corporations  became  and  were  consolidated  into  one  corpora- 
tion, to  be  known  by  the  name  of,  and  which  is  the  defendant,  the  Fitch- 
burg  Railroad  Company ;  that  pursuant  to  said  agreement  all  the  capital 


andyf/Vy  //wMxa«a'(j'o,ooo)  shares  shall 
be  common  stock  with  the  same  rights, 
powers  and  privileges  as  the  present 
common  stock  of  the  Fitchburg  Railroad 
Company. 

4.  The  capital  stock  of  the  present 
Fitchburg  Railroad  Company  shall  upon 
such  consolidation  be  and  become 
thereby  capital  stock  of  the  new  cor- 
poration, share  for  share,  and  of  the 
same  kind  as  to  preference  as  the  same 
now  is:  The  capital  stock  of  the  Troy 
and  Boston  Railroad  Company  shall  be 
surrendered  and  extinguished  and  the 
certificates  therefor  canceled,  and  there 
shall  be  distributed  and  delivered  to 
the  shareholders  of  the  Troy  and  Boston 
Railroad  Company  at  the  time  of  such 
consolidation  or  within  a  reasonable 
time  thereafter,  having  regard  to  the 
transaction  of  the  necessary  business, 
certificates  for  ten  thousand  shares  of 
the  preferred  capital  stock  of  the  new 
or  consolidated  company,  of  the  same 
kind  and  character,  except  as  is  herein 
below  set  forth,  as  the  preferred  stock  of 
the  present  Fitchburg  Railroad  Company; 
such  shares  shall  be  distributed  to  the 
shareholders  of  the  Troy  and  Boston 
Railroad  Company  pro  rata  according  to 
the  number  of  shares  held  by  them  at 
the  time  of  such  consolidation;  there 
shall  also  be  issued  and  held  by  the 
said  new  or  consolidated  company  three 
thousand  three  hundred  and  thirty-three 
shares  of  the  said  preferred  capital 
stock  of  said  company,  which,  or  such 
portions  of  the  same  as  the  directors  of 
the  consolidated  company  may  at  any 
time  deem  necessary,  shall  be  held  by 
it  in  trust  for  the  shareholders  of  the 
Troy  and  Boston  Railroad  Company,  but 
as  an  indemnity  to  the  consolidated 
company  against  any  outstanding 
claims  against  or  liabilities  of  said 
Troy  and  Boston  Railroad  Company  which 
said  new  company  shall  be  compelled 
to  pay  for  the  protection  of   its  prop- 


erty; which  said  above  mentioned  three 
thousand  three  hundred  and  thirty-three 
shares  of  stock  or  so  much  of  the  same  as 
is  not  in  the  judgment  of  said  directors 
required  for  the  purposes  of  said  trust, 
shall  be  distributed  to  the  said  stock- 
holders of  the  Troy  and  Boston  Railroad 
Company  pro  rata  as  in  the  distribution 
of  the  above  mentioned  ten  thousand 
shares  of  stock,  and  all  shares  of  stock 
when  distributed  shall  entitle  those  who 
shall  receive  them  to  all  dividends 
thereon,  which  shall  have  been  de- 
clared on  the  other  preferred  stock  of 
the  new  or  consolidated  company,  sub- 
ject, however,  to  such  deductions  there- 
from and  agreements  in  relation  thereto 
as  are  hereinafter  contained  or  provided 
for:  No  part  of  such  shares  so  held  in 
trust  shall  be  sold  to  pay  any  such 
claims  against  the  Troy  and  Boston  Rail- 
road Company  until  after  the  trustees, 
provided  for  in  the  eighth  article  of  this 
agreement,  shall  have  had  reasonable 
notice  to  pay  the  same,  and  if  the  same 
shall  not  be  paid  by  said  trustees,  upon 
such  notice,  the  shares  so  held  in  trust 
or  such  part  thereof  as  is  necessary  for 
that  purpose  shall  be  sold  at  public  or 
private  sale  and  without  further  notice, 
and  the  proceeds  applied  to  the  liquida- 
tion of  any  of  said  claims.  In  case  of 
shares  remaining  to  be  distributed  to 
the  shareholders  of  the  Troy  and  Bos- 
ton Railroad  Company  after  all  have  been 
distributed  and  delivered,  which  can 
be  done  by  the  delivery  of  full  shares 
in  the  manner  hereinbefore  provided 
for,  the  treasurer  of  the  new  or  consoli- 
dated company  shall  sell  the  same  at 
open  sale,  and  the  proceeds  of  such 
sale  shall  be  apportioned,  distributed 
and  paid  to  the  shareholders  of  the 
Troy  and  Boston  Railroad  Company  at 
the  time  of  said  consolidation,  with 
any  dividends  payable  to  shareholders 
of  the  Troy  and  Boston  Railroad  Com- 
pany thereon,  so   that  all  stockholders 


630 


Volume  5. 


6414. 


CORPORA  TTONS. 


6414. 


stock,  property  and  franchises  which  were  of  the  said  Troy  and  Bos- 
ton Railroad  Company  have  been  transferred  and  surrendered  to,  and 
are  now  held  by,  the  defendant,  the  Fitchburg  Railroad  Company^ 
that  said  defendant,  in  and  by  said  agreement  and  act  of  consolida- 
tion, undertook,  covenanted,  promised  and  agreed,  and  under  and  by 
virtue  of  the  laws  of  the  state  of  New  For^ authorizing  such  consoli- 
dation became,  was  and  is  obliged  to  pay  said  bond  and  the  interest 
thereon,  and  to  pay  said  promissory  note,  duebill  or  coupon  which 
became  due  and  payable  on  the  first  day  oi  July,  i%8T,  as  aforesaid. 
III.  That  this  plaintiff,  after  the  issue  of  said  bond  or  obligation 
in  writing,  as  aforesaid,  for  value  purchased  the  same,  and  became 


of  the  Troy  and  Boston  Railroad  Com- 
pany shall  share  alike  pro  rata  accord- 
ing to  their  holdings  of  the  shares  of 
the  capital  stock  of  said  last  named 
company  in  the  capital  stock  of  the  new 
or  consolidated  company  so  far  as 
practicable,  by  full  shares  and  for  frac- 
tional parts  of  shares  in  the  amount  of 
proceeds  representing  the  fractional 
parts  of  shares. 

5.  The  by-laws  of  the  present  Fitch- 
burg Railroad  Company,  except  so  far  as 
the  same  may  be  inconsistent  with  this 
agreement,  or  with  the  provisions  of 
law,  shall  constitute  the  by-laws  of  the 
consolidated  corporation  until  legally 
changed,  and  the  officers  and  agents  of 
the  present  Fitchburg  Railroad  Company, 
together  with  the  addition  of  three  to 
the  present  Board  of  Directors  as  here- 
inbefore provided,  shall  constitute  the 
officers  and  agents  of  the  consolidated 
corporation  until  others  are  chosen  in 
their  places,  and  the  directors  shall, 
until  otherwise  provided,  be  chosen  by 
ballot  at  the  annual  meeting  of  the 
stockholders  on  the  last  Tuesday  of 
January  of  each  year. 

6.  The  new  or  consolidated  company 
shall,  upon  the  order  or  request  of  the 
trustees  hereinafter  provided  for,  fur- 
nish the  sum  of  three  millions  <?/ dollars 
with  interest  at  four  per  cent,  per 
annum,  from  the  date  of  consolidation, 
of  which  sum  not  more  than  seventy-five 
thousand  five  hundred  dollars  and  in- 
terest at  four  per  cent,  per  annum, 
shall  be  used  for  the  payment  of  the 
bonds  of  the  Troy  and  Boston  Railroad 
Company,  secured  by  a  mortgage  bear- 
ing date  the  zd  day  oijune,  185/;  not 
more  than  one  million  five  hundred  thou- 
sand dollars  and  interest  at  four  per 
cent,  per  annum,  shall  be  used  for  the 
payment  of  the  bonds  of  the  Troy  and 
Boston  Railroad  Company,  secured  by 
a  mortgage  bearing  date  the  fth  day 
of  September,  187^;  not  more  than  one 


million  dollars  and  interest  at  four  per 
cent,  per  annum,  shall  be  used  for  the 
payment  of  the  bonds  of  the  Troy  and 
Boston  Railroad  Company ,  secured  by  a 
mortgage  bearing  date  the  gth  day  of 
November,  x^jS;  not  more  than  two 
hundred  and  fifty  thousand  dollars  and 
interest  at  four  per  cent,  per  annum, 
shall  be  used  for  the  payment  of  the 
bonds  of  the  Troy  and  Boston  Railroad 
Company,  secured  by  a  mortgage  bear- 
ing date  the  26th  day  ol  July,  18&;  and 
the  residue  of  said  three  millions  of  dol- 
lars and  interest  shall  be  used  by  said 
trustees  for  the  payment  of  the  in- 
debtedness of  the  Troy  and  Boston  Rail- 
road Company  other  than  that  secured 
by  said  mortgages:  said  Troy  and  Bos- 
ton Railroad  Company  agrees  that  said 
sum  of  three  millions  ^t/"  dollars  and  in- 
terest shall  be  sufficient  to  pay  and 
discharge  all  the  indebtedness  of  the 
said  Troy  and  Boston  Railroad  Company 
at  the  time  of  the  consolidation,  whether 
absolute  or  contingent,  and  if  said  new 
or  consolidated  company  shall  be  ob- 
liged to  pay  any  sum  or  sums  on 
account  of  said  indebtedness,  or  the 
interest  thereon  over  and  above  said 
sum  of  three  millions  ^y  dollars  and  in- 
terest as  above  stated,  said  new  or  con- 
solidated company,  after  exhausting 
the  indemnity  hereinbefore  provided 
for  by  sale  of  stock  held  in  trust,  shall 
retain  from  the  dividends  upon  the 
shares  of  stock  distributed  to  the 
shareholders  of  the  Troy  and  Boston 
Railroad  Company,  a  sufficient  sum 
to  make  good  and  repay  the  amount  so 
paid  over  and  above  said  sum  of  three 
millions  of  dollars,  and  interest,  and 
the  proceeds  of  said  trust  stock  and  its 
dividends.  The  said  new  or  consoli- 
dated company  shall,  at  the  election  of 
such  of  the  stockholders  of  the  securi- 
ties of  the  Troy  and  Boston  Railroad 
Company  as  may  on  or  before  the  ist 
day  oijuly  next,    in    writing    request, 


681 


Volume  5. 


6414. 


CORPORATIONS. 


6414. 


and  she  is  now  the  lawful  holder  and  owner  thereof,  and  by  reason 
thereof  became  and  she  is  now  the  lawful  holder  and  owner  of  said 
above  mentioned  promissory  note,  duebill  or  coupon. 

IV.  That  on  \.\\t.  first  day  oi  July^  i8<^7,  the  plaintiff  presented  said 
promissory  note,  duebill  or  coupon  at  the  Bank  of  Commerce  in  the 
city  of  New  Vork,a.nd  demanded  payment  thereof,  which  was  refused. 

V.  That  no  part  of  said  promissory  note,  duebill  or  coupon  has 
been  paid,  and  the  defendant  wholly  neglects  and  refuses  to  pay  the 
same. 

Second.  For  her  second  cause  of  action:  {^Then  followed  other  causes 
of  action  with  similar  allegations  counting  upon  the  other  notes ^  duebills  or 
coupons. ) 

Wherefore,  the  plaintiff  demands  judgment  against  the  defendant 


issue  and  deliver  bonds  of  the  new  or 
consolidated  company  in  exchange  at 
par  for  each  of  the  bonds  of  the  Troy 
and  Boston  Railroad  Company,  held  by 
them  at  the  time  this  agreement  shall 
go  into  effect  as  the  bona  fide  owners 
of  the  same,  such  bonds  to  be  payable 
in  twenty  years  from  the  date  thereof, 
and  to  bear  interest  at  the  rate  ol  four 
per  cent,  per  annum,  payable  semi- 
annually. 

7.  In  consideration  of  the  sums  re- 
quired to  be  expended  upon  the  Troy 
and  Boston  Railroad  Company's  railroad, 
the  shares  herein  agreed  to  be  dis- 
tributed and  delivered  to  the  share- 
holders of  the  Troy  and  Boston  Railroad 
Company  shall  be  entitled  to  the  same 
rights  as  the  preferred  stock  of  the 
Fitchburg  Railroad  Company,  excepting 
that  for  and  during  the  term  of  four 
years  from  the  date  of  said  consoli- 
dation such  shares  shall  receive  only 
three-fifths  of  the  amount  of  dividend 
paid  upon  the  remaining  preferred 
stock  in  said  new  and  consolidated 
company,  and  for  and  during  the  next 
succeeding y<7«r  years  thereafter  shall 
receive  oxA^^  four- fifths  oi  the  amount 
of  dividend  paid  upon  such  remaining 
preferred  stock. 

8.  Said  sum  of  three  millions  of  dol- 
lars and  interest  in  cash  or  bonds  as 
hereinbefore  provided  for,  shall  be  paid 
upon  the  order  of  the  persons  con- 
stituting the  directors  of  the  Troy  and 
Boston  Railroad  Company  at  the  time  of 
such  consolidation,  as  trustees  for  the 
new  and  consolidated  company  for 
whom  the  treasurer  of  the  new  com- 
pany, for  the  time  being,  shall  act  as 
treasurer,  and  they  shall  also  have  con- 
fided to  them  the  settlement,  prosecu- 
tion and  collection  of  all  claims,  debts, 
bills,  notes,  rents,  accounts  and  things 
in  action, outstanding  for  or  against  the 


Troy  and  Boston  Railroad  Company,  and 
for  such  purposes  may  use  the  name 
and  agencies  of  the  new  company  so 
far  as  is  required  by  or  convenient  for 
such  trustees.  Trustees  dying  or  re- 
signing may.  in  the  discretion  of  the 
survivors  or  remaining  trustees,  be  re- 
placed by  choice  of  the  remaining 
trustees  from  among  the  former  share- 
holders of  the  Troy  and  Boston  Rail- 
road Company. 

9.  Whenever  the  consolidation  shall 
have  been  effected  under  the  provisions 
of  this  agreement,  the  stock  of  the 
Troy  and  Boston  Railroad  Company  shall 
cease  to  have  any  voting  power  or 
participation  in  profits  or  dividends, 
and  shall  have  no  vitality  or  value 
except  to  preserve  the  rights  of  credit- 
ors and  liens  upon  its  property,  or  to 
close  up  the  affairs  of  the  Troy  and  Bos- 
ton Railroad  Company ,  and  for  the  pur- 
pose of  exchange,  as  aforesaid,  for 
stock  of  the  new  or  consolidated  com- 
pany, and  no  more  stock  of  the  Troy 
and  Boston  Railroad  Company  shall  be 
issued,  and  the  stock  books  of  the  Troy 
and  Boston  Railroad  Company  shall  be 
closed,  except  for  the  purpose  of  effect- 
ing or  facilitating  said  exchange. 

10.  Whenever  this  consolidation  takes 
effect  such  new  or  consolidated  com- 
pany shall  thereupon  and  thereafter 
have,  hold,  possess  and  enjoy  all  the 
rights,  privileges,  exemptions  and  fran- 
chises, and  all  the  property,  real,  per- 
sonal and  mixed,  claims,  debts  and 
demands  subject  to  the  terms  of  this 
agreement  then  had  or  held  by  either 
party  hereto,  and  shall  be  subject  to  all 
the  duties,  obligations,  restrictions, 
disabilities,  debts  and  liabilities  to 
which  either  party  hereto  is  then  sub- 
ject, excepting  so  far  as  the  consoli- 
dated company  is  not  liable  for  the 
mortgages  of  the  Troy  and  Boston  Rail- 

33  Volume  5. 


6415. 


CORPORA  TIONS. 


6415. 


for  the  sum  of  three  hundred  and  fifty  dollars,  with  interest  on  the 
sum  of  one  hundred  and  seventy-five  dollars  from  \.\\&  first  day  oi  July, 
i8S7,  and  on  the  sum  of  one  hundred  and  seventy-five  dollars  from  the 
first  day  oi  January ,  iS88,  besides  the  costs  and  disbursements  of 
this  action. 

Masten  6r»  Nichols^  Attorneys  for  Plaintiff, 
Office  and  postoffice  address, 
No.  llfB  Broadway^  New^  York  City. 
(^Verification. y- 

(2)  On  Judgment.* 

Form  No.  6415.' 

In  the  Circuit  Court  of  La  Salle  County, 
January  Term,  iZ9S. 
State  of  Illinois,        \ 
County  of  La  Salle.  \ 

Mary  L.  Ashling,  as  administrator  of  the  estate  of  Edward  W.  Ash- 


set. 


road  Company,  and  bonds  and  interest 
secured  thereby,  according  to  the  pro- 
visions of  section  5  of  chapter  917  of 
the  laws  of  the  state  of  New  York, 
passed  in  1869. 

11.  After  the  consolidation  shall 
have  been  complete  and  effectual,  each 
of  said  railroad  companies,  parties 
hereto,  shall  continue  only  for  the  pur- 
pose of  perfecting  said  consolidation 
and  preserving  the  rights  of  all  creditors 
and  liens  upon  property,  and  doing  all 
such  acts  and  things  as  may  be  neces- 
sary therefor,  and  in  closing  up  its  out- 
standing affairs,  and  shall  do  all  things 
and  execute  all  such  transfers,  convey- 
ances and  assignments  as  the  consoli- 
dated corporation  may  deem  necessary 
or  expedient  to  vest  in  itself  any  prop- 
erty or  estates,  rights  or  claims,  except 
as  aforesaid,  which  do  not  vest  in  it  by 
virtue  of  these  articles. 

12.  This  agreement  shall  be,  accord- 
ing to  law,  submitted  to  the  stockhold- 
ers of  each  of  the  companies,  parties 
hereto,  and  when  duly  adopted  by  the 
respective  companies,  shall  become  ef- 
fectual, and  the  same,  or  a  copy  thereof, 
shall  be  filed  pursuant  to  the  statutes 
in  such  case  made  and  provided. 

In  witness  whereof,  the  Directors  of 
the  said  Fitchburg  Railroad  Company 
and  the  Directors  of  the  Troy  and  Bos- 
ton Railroad  Company  have  executed 
these  presents  and  affixed  the  corporate 
seal  of  each  company."  {^Signatures  and 
corporate  seals. ) 

1.  See  the  title  Vkrifications. 

2.  For  forms  in   actions  upon  judg- 


ments, generally,  consult  the  title 
Judgments. 

Consideration  need  not  be  averred  or 
proved,  where  a  judgment  creditor  sues 
a  consolidated  company  on  a  judgment 
obtained  against  a  constituent  com- 
pany. It  is  sufficient  if  it  appear  by 
proper  averment  that  the  judgment  was 
obtained  for  work  and  labor  performed, 
and  that  it  has  not  been  satisfied.  St. 
Louis,  etc.,  R.  Co.  v.  Miller,  43  111.  199. 

3.  This  declaration  is  based  upon  Uie 
facts  set  out  in  Chicago,  etc.,  R.  Co.  v. 
Ashling,  160  111.  375.  The  plaintiff,  as 
administratrix,  brought  suit  against  the 
Chicago  and  St.  Louis  Railroad  Com- 
pany to  recover  damages  for  an  alleged 
negligent  killing  of  her  intestate.  After- 
ward, and  before  judgment  against  the 
St.  Louis  Company  was  rendered,  but 
while  suit  was  pending,  said  company 
consolidated  with  the  Santa  Fe  Com- 
pany. After  judgment  recovered 
against  the  St.  Louis  Company,  plain- 
tiff brought  her  action  against  the  de- 
fendant, the  Santa  Fe  Company.  The 
judgment  in  favor  of  the  plaintiff  was 
affirmed  in  the  appellate  court,  and 
subsequently  in  the  supreme  court,  the 
court  holding  that  a  consolidated  com- 
pany is  not  relieved  from  liability  upon 
a  judgment  rendered  against  one  of  its 
constituent  corporations  after  the  con- 
solidation upon  a  cause  of  action  accru- 
ing before  the  consolidation. 

For  formal  parts  of  declarations,  gen- 
erally, consult  the  title  Declarations; 
of  complaints,  generally,  consult  the 
title  Complaints,  vol.  4,  p.  1019. 


088 


Volume  5. 


64 1 6.  CORPORA  TIONS.  6416. 

lingy  deceased,  plaintiff,  by  Oliver  Ellsworth,  her  attorney,  complains 
of  the  Chicago,  Santa  Fe  and  California  Railway  Company,  defendant, 
of  a  plea  of  debt:  For  that  whereas,  the  plaintiff,  in  the  May  term  of 
the  said  Circuit  Court,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-one,  to  wit,  on  the  set>enth  day  of  May  in  the  same 
year,  by  the  consideration  and  judgment  of  the  said  Circuit  Court, 
recovered  against  the  said  Chicago  and  St.  Louis  Railway  Company,  in 
a  certain  action  of  trespass  on  the  case,  the  sum  oi  five  thousand  one 
hundred  and  eighty-three  dollars  and  eighty-five  cents  damages,  and  also 
the  costs  of  plaintiff  in  that  behalf,  taxed  at  the  sum  of  one  hundred 
dollars,  whereof  the  said  Chicago  and  St.  Louis  Railway  Company  was 
convicted,  as  by  the  record  thereof,  remaining  in  the  said  court,  more 
fully  appears;  said  judgment  still  remains  in  force. 

And  the  Chicago  and  St.  Louis  Raihvay  Company  was  duly  consoli- 
dated with  the  said  Chicago,  Santa  Fe  and  California  Railway  Company, 
a  corporation  then  existing  under  the  laws  of  the  state  oi  Illinois,  and 
the  defendant  in  that  suit,  under  the  statutes  of  the  state  oi  Illinois, 
and  thereby  became  part  and  parcel  of  the  said  Chicago,  Santa  Fe  and 
California  Railway  Company,  the  defendant,  and  incorporated  there- 
with, and  that  the  two  companies  became  one  company  under  the 
name  of  the  Chicago,  Santa  Fe  and  California  Railway  Company;  that 
said  consolidated  company,  the  Chicago,  Santa  Fe  and  California  Rail- 
way Company,  the  defendant,  by  reason  of  said  consolidation,  became 
liable  for  all  the  debts  and  liabilities  of  the  said  Chicago  and  St.  Louis 
Railway  Company,  existing  or  accrued  prior  to  such  consolidation, 
among  which  was  the  judgment  hereinbefore  recited;  that  the  lia- 
bility against  the  Chicago  and  St.  Louis  Railway  Company  accrued  on 
the  twenty-third  6.3.y  oi  February,  i2>86.  An  action  was  commenced 
against  said  company  prior  to  said  consolidation,  to  wit,  on  the  sixth 
day  oi  June,  iS86:  Yet  the  defendant  herein,  the  Chicago,  Santa  Fe  and 
California  Railway  Company,  has  not  paid  to  the  plaintiff  the  said  sums 
of  money  so  by  her  recovered  as  aforesaid,  altogether  amounting  to 
the  sum  oi  five  thousand  two  hundred  and  eighty-three  dollars  and  eighty- 
five  cents,  or  any  part  thereof,  but  refuses  so  to  do,  to  the  damage  of 
the  plaintiff  oi  five  thousand  three  hundred  and  eighty-three  dollars  and 
eighty-five  cents;  and  therefore  she  brings  her  suit,  etc.  And  the  said 
plaintiff  brings  into  court  here  the  letters  of  administration  to  her 
granted  by  the  County  Court  of  the  said  county  of  La  Salle,  which 
gives  sufficient  evidence  to  the  said  court  here  of  the  grant  of  ad- 
ministration of  the  said  estate  to  the  said  plaintiff,  etc. 

Oliver  Ellsworth,  Plaintiff's  Attorney. 

(3)  On  Mortgage.! 

complaint  in  foreclosure. 
Form  No.  6416.* 

1.  For  forms  connected  with  the  en-  set  out  in  Eaton,  etc.,  R.  Co.  v.  Hunt, 
forcement  of  mortgage  liens,  gener-  20  Ind.  459.  The  court  held  in  that 
ally,  consult  the  title  Foreclosure  of  case  that  the  Ohio  company  having  ac- 
MoRTGAGKS.  quired  title  to  the  road  in  Indiana  after 

2.  This  complaint  is  based  apon  the  facts  the  execution  of  said  two  mortgages, 

634  Volume  5, 


64 1 6.  CORPORA  TIONS.  641 6. 


State  of  Indiana, )  Wayne  Circuit  Court. 

Wayne  County,     f  Term,  i8 — . 

John  Hunt  and  {naming  the  other  plaintiffs),  plaintififs, "] 

against. 
The  Eaton   and  Hamilton  Railroad  Company,  George  \ 
Carlisle,  trustee,  and  {naming  the  other  defendants),  \ 
defendants.  J 

John  Hunt  and  {naming  the  other  plaintiff s),  plaintiffs,  complain  of 
the  Eaton  and  Hamilton  Railroad  Company  and  {naming  the  other 
defendants),  defendants,  and  say  that  on  X^at.  first  day  oi  November, 
iS52,  there  existed  a  corporation  in  the  state  of  Indiana  created 
under  a  law  of  that  state,  with  power  to  construct  a  railroad  from 
Richmond,  in  the  state  of  Indiana,  to  the  Ohio  state  line,  a  distance  of 
about  six  miles.  That  said  corporation  was  known  by  the  name  of 
the  Richmond  and  Miami  Railroad  Company.  That  on  the  day  named, 
said  corporation  issued  sixty  bonds  of  one  thousand  dollars  each,  pay- 
able to  George  Carlisle  or  bearer,  and  on  the  same  day  executed  to 
said  Carlisle,  as  trustee,  a  mortgage  on  the  six  miles  of  road  named 
as  security  for  the  payment  of  the  principal  and  interest  of  said 
bonds,  which  mortgage  was  duly  filed  for  record  in  the  recorder's 

office  of  county  on  the day  of ,  in  liber — ,  pages 

— ,  — .  That  said  bonds  were  guaranteed  by  a  railroad  company  in 
the  state  of  Indiana,  called  the  Eaton  and  Hamilton  Railroad  Company, 
created  by  or  under  a  law  of  that  state,  and  vested  with  power  to 
construct  a  railroad  from  Hamilton,  in  the  state  of  Ohio,  to  the  state 
line  of  Indiana,  in  the  direction  of  Richmond,  in  the  latter  state. 
That  in  \%53  the  Richmond  and  Miami  X02i6.  was  completed. 

That  on  the  first  day  of  January,  iZ5Ji^  forty  additional  bonds  were 
issued  by  the  Richmond  and  Miami  Railroad  Company,  and  a  second 
mortgage  was  executed  thereby  to  said  Curlisle,  as  trustee,  upon  the 
six  miles  of  road  to  secure  the  payment  of  said  bonds,  which  mort- 
gage was  also  duly  filed  for  record  in  the  recorder's  office  of 

county,  on  the day  of ,  in  liber  — ,  pages  — ,  — . 

That  the  said  first-mortgage  bonds  above  referred  to  became  due 
on  the  first  day  of  November,  iZ62,  and  the  interest  on  them  was 
payable  semiannually,  but  neither  the  principal  nor  the  interest 
has  been  paid,  and  no  part  thereof.  That  plaintiffs  are  the  owners 
oi  fifty-seven  of  said  first-mortgage  bonds,  and  that  they  had  requested 
said  Carlisle,  the  trustee,  to  proceed  and  enforce  their  rights  against 
the  defendant  railroad  company  under  the  mortgage,  but  that  said 
trustee  had  refused  so  to  do.  That  the  remaining  three  bonds  are  in 
the  hands  of  persons  to  plaintiffs  unknown.  Thdit  {Here  follow  the 
names  of  the  holders  of  second-mortgage  bonds,  and  an  allegation  that  they 
claim  liens  on  said  road  subject  to  plaintiffs'  lien). 

That  legislative   acts  of  the  states  of  Ohio  and  Indiana  authorize 

took  the  same  subject  thereto,  and  the  doctrine     is   laid    down    in  Wright   v. 

holders   of   said   first-mortgage    bonds  Bundy,  ii  Ind.  398. 
had   a   right   to   enforce   the  payment        For  the  formal   parts   of  complaints, 

thereof  by  the  foreclosure  of  said  mort-  generally,  consult  the  title  Complaints, 

gage  in    the    Indiana   courts,   and   the  vol.  4,  p.  1019;  of  declarations,  gener- 

sale    of    said    road   there.     The   same  ally,  consult  the  title  Declarations. 

635  Volume  5. 


6416. 


CORPORA  TIONS. 


6416. 


the  Eaton  and  Hamilton  Railroad  Companies  to  consolidate  upon  such 
terms  as  might  be  agreed  upon,  but  none  of  said  acts  contained  any 
provisions  surrendering  the  jurisdiction  of  either  state  to  the  other 
over  the  consoHdated  company.  That  the  two  companies  aforesaid 
executed  the  following  articles  of  consolidation :  (^Here  was  set  out 
copy  of  consolidation  articles)?- 

That,  prior  to  said  consolidation,  bonds  and  mortgages  had  been 
issued  by  the  Eaton  and  Hamilton  Railroad  Company^  which  were  liens 
upon  the  road  of  that  company  in  Ohio.  And  that,  after  said  con- 
solidation bonds  were  issued,  secured  by  mortgages  on  the  entire  line 
of  the  road,  in  addition  to  those  bonds  prior  thereto  by  the  separate 
companies  hereinabove  referred  to. 

Wherefore,  the  plaintiffs  pray  judgment  for  sixty  thousand  dollars, 
the  foreclosure  of  said  mortgage,  and  that  said  railroad  upon  which 
the  said  mortgage  hereinabove  referred  to  has  been  laid,  or  so  much 


1.  Articles  of  consolidation  referred  to 
in  the  text  were  as  follows: 

"  An  agreement  made  and  entered 
'into  by  and  between  the  Richmond  and 
Miami  Railroad  Company^  duly  incor- 
porated by  the  General  Assembly  of  the 
State  of  Indiana,  of  the  one  part,  and 
the  Eaton  and  Hamilton  Railroad  Com- 
pany, in  like  manner  incorporated  by 
the  General  Assembly  of  the  State  of 
Ohio,  of  the  other  part,  witnesseth: 
That, 

First.  These  companies,  their  capital 
stock,  their  roads,  debts,  dues,  rights 
in  action,  franchises,  interests,  and 
property  of  every  kind,  character  and 
description,  shall  be,  and  hereby  are, 
merged,  united  and  consolidated  into 
one  joint-stock  company,  one  road,  one 
interest,  and  one  property,  upon  the 
terms  following,  that  is  to  say: 

Second.  The  corporate  name,  fran- 
chises, rights,  immunities  and  organi- 
zation of  the  Eaton  and  Hamilton 
Railroad  Company  shall  be  preserved 
and  remain  intact,  and  the  said  consoli- 
dated company  shall  be  known  by,  and 
its  business  transacted,  in  that  name, 
in  every  sense,  as  if  this  consolidation 
had  not  taken  place,  except  so  far 
merely  as  the  enlarged  interests  of  the 
company,  and  a  compliance  with  the 
laws  of  Indiana,  may  modify  the  same. 

Third.  The  debts,  dues  and  rights  in 
action,  owing  to,  and  accruing  in  favor 
of,  the  said  Richmond  and  Miami  Rail- 
road Company,  all  and  singular  the 
rights  and  franchises,  the  road  with  its 
right  of  way,  fixtures  and  appurte- 
nances,depot  and  other  station  grounds, 
buildings  and  water  tanks,  with  all 
other  rights  and  interests  and  property, 
real,   personal,   and  mixed,    of    every 


kind,  character,  and  description,  and 
all  and  singular  the  interest,  right  and 
titles  therein,  whether  legal  or  equita- 
ble, of  the  said  Richmond  and  Miami 
Railroad  Company,  are  to  be,  and  are 
hereby,  granted,  transferred  and  con- 
veyed to,  and  merged  in,  those  of  said 
Eaton  and  Hamilton  Railroad  Company, 
its  successors  and  assigns  forever,  as 
fully  and  completely,  to  all  intents  and 
purposes,  as  they  are  now  vested  in  the 
said  Richmond  and  Miami  company. 

Fourth.  The  said  Eaton  and  Hamil- 
ton Railroad  Company  is  to,  and  does 
hereby,  assume  the  franchises,  rights, 
immunities  and  liabilities  of  the  said 
Richmond  and  Miami  Railroad  Company, 
and  especially  is  to  assume,  liquidate 
and  pay  all  debts,  dues,  and  liabilities, 
outstanding  against  it,  and  to  that  end 
is,  so  far  as  the  unfunded  indebted- 
ness extends,  to  apply  semiannually, 
to  its  liquidation,  an  amount  equal  to 
one-seventh  of  the  net  surplus  earnings 
of  the  entire  road,  until  the  whole 
shall  be  paid,  and  is,  upon  the  surren- 
der of  certificates,  or  other  evidence  of 
ownership  of  the  capital  stock  of  the 
said  Richmond  and  Miami  company,  to 
issue  to  the  party  in  interest  evidence 
of  ownership  of  a  like  amount  of  the 
capital  stock  of  said  Eaton  and  Hamil- 
ton Railroad  Company. 

Fifth.  This  agreement  shall  take  ef- 
fect and  be  in  force  on  and  after  the 
1st  day  of  December,  iSj^,  at  which 
time  the  name  and  organization  of  the 
Richmond  and  Miami  company  shall 
cease,  and  its  separate  legal  identity, 
franchises,  rights,  interests,  property, 
etc.,  vest  and  merge  into  those  of  the 
said  Eaton  and  Hamilton  company.  In 
witness,"  etc. 


686 


Volume  5. 


6417. 


CORPORATIONS. 


6417. 


thereof  as  may  be  necessary,  be  sold  to  satisfy  said  claim  and  the 
costs  herein  laid  out  and  expended. 

Oliver  Ellsworth,  Plaintiffs'  Attorney. 
{Verification^^ 


III.  REORGANIZED  CORPORATIONS.' 

1.  Proceeding's  by  or  on  Behalf  of.^ 

a.  For  Mandamus.* 


TO   COMPEL    SECRETARY  OF    STATE   TO    FILE   CERTIFICATE   WITHOUT 
PAYMENT    OF    TAX. 

Form  No.  6417.* 

To  the  Supreme  Court  of  the  State  of  New  York: 

The  petition  of  the  Consolidated  Kansas  City  Smelting  and  Refining 
Company  respectfully  shows  as  follows: 

First.  Your  petitioner  is  a  domestic  corporation,  organized  and  in- 
corporated under  an  act  entitled  "  An  Act  to  authorize  the  formation 
of  corporations  for  manufacturing,  mining,  mechanical  or  chemical 


1.  Consult  the  title  Verifications. 

2.  Reorganization  on  foreclosure  sale  or 
on  insolvency  is  provided  for  by  the 
statutes  of  most  of  the  states.  With 
the  exception  of  Connecticut  and  Vir- 
ginia the  reorganization  is  effected 
without  recourse  to  the  courts.  Conn. 
Laws  (1895),  p.  467.  See  also  list  of 
statutes  cited  supra,  note  i,  p.  527. 

Reorganization  is  Distinguished  from 
Reincorporation.  —  See  Matter  of  Consol. 
Kansas  City  Smelting,  etc.,  Co.,  13  N. 
Y.  App.  Div.  50.  Close  v.  Potter,  2 
Misc.  (N.  Y.)  i;  People  v.  Blake,  19 
Cal.  579. 

Reorganization  mtist  be  Averred. — 
Where  the  name  of  the  corporation  has 
been  changed  on  reorganization,  it  is 
sufficient  to  aver  that  the  company  was 
originally  incorporated  under  another 
name,  and  that  under  authority  of  law 
it  amended  its  charter  and  changed  its 
name.  Hyatt  v.  McMahon,  25  Barb. 
(N.  Y.)457. 

An  amendment  substituting  the  reorgan- 
ized corporation  in  place  of  the  receiver 
of  the  old  corporation  is  allowable  in 
an  action  against  a  receiver  who  was 
discharged  from  his  receivership  more 
than  si.xty  days  before  the  reorganiza- 
tion. Abbott fjewett,  25  Hun  (N.  Y.) 
603;  Tighe  V.  Pope,  16  Hun  (N.  Y.)  180. 


Specific  aTerments  in  a  complaint  show- 
ing that  defendant  was  a  new  corpora- 
tion must  control  averments  therein 
charging  that  the  defendant  is  the  same 
corporation  under  a  different  name 
from  that  under  which  it  entered  into 
contractual  relations  with  plaintiff. 
Moyer  v.  Fort  Wayne,  etc.,  R.  Co.,  132 
Ind.  88. 

3.  Proceedings  by  and  against  corpora- 
tions, generally,  see  supra,  note  i,  p.  527. 

4.  For  forms  relating  to  mandamus  pro- 
ceedings, generally,  consult  the  title 
Mandamus. 

5.  This  petition  is  copied  from  the 
record  in  the  Matter  of  Consol.  Kan- 
sas City  Smelting,  etc.,  Co.,  13  N.  Y. 
App.  Div.  50.  In  that  case  on  appeal, 
by  petitioner,  from  an  order  of  the  su- 
preme court,  made  at  special  term, 
denying  its  application  for  a  temporary 
writ  of  mandamus  to  compel  the  secre- 
tary of  state  to  review  a  certificate  to 
increase  its  capital  stock,  the  order  was 
reversed  and  the  motion  for  the  writ 
granted,  the  court  holding  that  the 
reorganization  of  a  corporation,  origi- 
nally corporated  under  the  General 
Manufacturing  act,  under  the  Business 
Corporation  law  does  not  create  a  new 
corporation  which  is  bound  to  pay  the 
organization  tax  required  by  law. 


637 


Volume  5. 


64 1 7.  CORPORA  TIONS.  64 1 7. 

purposes,"  that  is  to  say,  chapter  40  of  the  Laws  of  1848  of  the  State 
of  New  York,  and  the  acts  extending  and  amending  the  same.  On 
the  twenty-sixth  day  of  March,  iS87,  a  certificate  of  its  incorporation 
in  the  form,  and  containing  the  statements,  required  by  the  said  act, 
was  duly  filed,  as  thereby  required,  in  the  office  of  the  clerk  of  the 
a'ty  and  county  of  New  York,  that  being  the  city  and  county  in  which 
the  principal  part  of  the  business  of  the  said  company  within  the 
state  of  New  York  was  to  be,  and  has  been,  carried  on.  On  the 
tiventy-fourth  day  of  March,  jS87,  a  duplicate  of  the  said  certificate 
was  duly  filed,  as  required  by  said  act,  in  the  office  of  the  secretary 
of  the  state  of  New  York.  The  amount  of  your  petitioner's  capital 
stock,  as  stated  in  the  said  certificate,  was  the  sum  of  tivo  million 
dollars  i%2,000,000),  and  prior  to  such  filing  of  the  said  duplicate 
certificate  in  the  office  of  the  said  secretary  the  sum  of  twenty-five 
hundred  dollars  i^'BoOO)  was  paid  by  your  petitioner  to,  and  was  re- 
ceived by,  the  treasurer  of  the  state  of  New  York  in  full  payment  of 
the  tax  of  one-eighth  of  one  per  cent,  upon  ^he  amount  of  such  capital 
stock  required  by  chapter  143  of  the  Laws  of  1886  of  the  State  of 
New  York  for  the  privilege  of  the  organization  of  your  petitioner  as 
aforesaid.  A  copy  of  the  said  certificate  is  hereto  annexed  and  is 
made  a  part  hereof. 

Second.  Thereafter  such  proceedings  were  had  that  on  the  twenty- 
ninth  A^iy  oi  June,  iS91,  at  a  meeting  of  the  stockholders  duly  and 
regularly  called  for  that  purpose  in  accordance  with  the  statute  in 
such  case  made  and  provided,  there  was  duly  adopted  by  stockholders 
owning  and  holding  more  than  two-thirds  of  the  stock  of  your  peti- 
tioner a  resolution  authorizing  an  increase  of  the  amount  of  the 
capital  stock  of  your  petitioner  from  the  sum  of  tit'o  million  dollars 
{%2,000,000\  to  the  sum  of  two  million  five  hundred  thousand  dollars 
l$2,500,000).  On  the  twenty-seventh  day  of  January,  i892,  a  certifi- 
cate, setting  forth  the  said  resolution  and  the  proceedings  had  at  the 
said  meeting,  duly  executed  and  acknowledged  by  A.  R.  Meyer  as 
chairman  and  Edivard  Brush  as  secretary  of  said  meeting,  was  duly 
filed,  in  the  office  of  the  clerk  of  the  city  and  county  of  New  York. 
On  the  twenty-sixth  day  of  January,  iS93,  a  duplicate  of  the  said 
certificate  was  duly  filed  in  the  office  of  the  said  secretary.  Prior  to 
the  filing  of  such  last  mentioned  duplicate  certificate  in  the  office  of 
the  said  secretary  the  sum  of  six  hundred  and  twenty -five  dollars  {%625) 
was  paid  by  your  petitioner  to,  and  was  received  by,  the  said  treas- 
urer in  full  payment  of  the  tax  of  one-eighth  of  one  per  cent,  upon  the 
amount  of  such  increase,  to  wit,  the  sum  oifive  hundred  thousand  dollars 
(%500,000),  required  by  the  said  chapter  143  of  the  Laws  of  1886  of 
the  state  of  New  York  for  the  privilege  of  such  increase.  A  copy  of 
the  said  last  mentioned  certificate  is  hereto  annexed  and  is  made  a 
part  hereof. 

Third.  Thereafter  such  proceedings  were  had  that  on  the  twenty- 
fifth  day  of  January,  i894,  at  a  meeting  of  the  stockholders  duly  and 
regularly  called  for  that  purpose,  in  accordance  with  the  statute  in 
such  case  made  and  provided,  there  was  duly  adopted  by  stock- 
holders owning  and  holding  more  than  two-thirds  of  the  stock  of 
your  petitioner  a  resolution  authorizing  an  increase  of  the  amount  of 

688  Volume  5. 


64 1 7.  CORPORA  TIONS.  6417. 

the  capital  stock  of  your  petitioner  from  the  sum  of  two  million  five 
hundred  thousand  dollars  ($2,500,000)  to  the  sum  of  three  million  five 
hundred  thousand  dollars  (%3,500,000).  On  the  sixteenth  day  of  Marchy 
i85^  a  certificate  setting  forth  the  said  resolution  and  the  proceedings 
had  at  the  said  meeting,  duly  executed  and  acknowledged  by  Nathaniel 
Wit  her  ell  as  chairman  and  Edward  Brush  as  secretary  of  said  meet- 
ing, was  duly  filed  in  the  office  of  the  clerk  of  the  city  and  county  of 
New  York.  On  the  fourteenth  day  of  March,  \%9Jf,  a  duplicate  of  the 
said  certificate  was  duly  filed  in  the  office  of  the  said  secretary. 
Prior  to  the  filing  of  such  last  mentioned  duplicate  certificate  in  the 
office  of  the  said  secretary  the  sum  of  twelve  hundred  and  fifty  dollars 
(%1250)  was  paid  by  your  petitioner  to,  and  was  received  by,  the 
said  treasurer  in  full  payment  of  the  tax  of  one-eighth  of  one  per  cent, 
upon  the  amount  of  such  last  mentioned  increase,  to  wit,  the  sum 
of  one  million  dollars  ($1,000,000),  required  by  the  said  chapter  143 
of  the  Laws  of  1886  of  the  State  of  New  York  for  the  privilege  of 
such  increase.  A  copy  of  the  said  last  mentioned  certificate  is  hereto 
annexed  and  is  made  a  part  hereof. 

Fourth.  Thereafter  such  proceedings  were  had  that  on  the  fourth 
day  oi  June,  iS96,  at  a  meeting  of  the  stockholders  duly  and  regu- 
larly called  for  that  purpose,  in  accordance  with  the  statute  in  such 
case  made  and  provided,  there  was  duly  adopted  by  stockholders 
owning  and  holding  more  than  two-thirds  of  the  stock  of  your  peti- 
tioner a  resolution  authorizing  an  increase  of  the  amount  of  the 
capital  stock  of  your  petitioner  from  the  sum  of  three  million  five 
hundred  thousand  doWsiTS  (^,500,000)  to  the  sum  oi  four  million  five 
hundred  thousand  dollars  (%4,500,000).  On  or  about  the  twelfth 
day  of  June,  iS96,  a  certificate  setting  forth  the  said  resolu- 
tion and  the  proceedings  had  at  the  said  meeting  duly  executed  and 
acknowledged  by  Nathaniel  Witherell  as  chairman  and  Edward  Brush 
as  secretary  of  said  meeting,  was  duly  filed  in  the  office  of  the  clerk 
of  the  city  and  county  of  Ne-iu  York.  On  the  eleventh  day  of  June^ 
jS96,  a  duplicate  of  the  said  certificate  was  duly  filed  in  the  office  of 
the  said  secretary.  Prior  to  the  filing  of  such  last  mentioned  dupli- 
cate certificate  in  the  office  of  the  said  secretary,  the  sum  of  twelve 
hundred  and  fifty  dollars  i%12o0)  was  paid  by  your  petitioner  to,  and 
was  received  by,  the  said  treasurer  in  full  payment  of  the  tax  of  one- 
eighth  of  one  per  cent,  upon  the  amount  of  such  last  mentioned  increase, 
to  wit,  the  sum  of  one  million  dollars  {%1,000,000)  required  by  the 
said  chapter  143  of  the  Laws  of  1886  of  the  State  of  New  York,  for 
the  privilege  of  such  increase.  A  copy  of  the  said  last  mentioned 
certificate  is  hereto  annexed  and  is  made  a  part  hereof. 

Fifth.  On  the  fourth  day  oi  June,  i896,  at  a  special  meeting  of  the 
stockholders  of  your  petitioner,  duly  and  regularly  called  by  the  trus- 
tees of  your  petitioner  in  accordance  with  the  statute  in  such  case  made 
and  provided,  that  is  to  say,  the  statute  of  the  state  of  New  York  known 
as  the  Business  Corporations  law,  being  chapter  691  of  the  Laws  of 
1892  as  amended  by  chapter  671  of  the  laws  of  1895,  for  the  pur- 
pose of  voting  upon  the  proposition  to  reincorporate  your  petitioner 
under  the  said  Business  Corporations  law,  the  following  resolution 
was  duly  adopted  by  stockholders  owning  and  holding  more  than  two- 

689  Volume  5. 


6417. 


CORPORATIONS. 


6417. 


thirds  of  all  the  stock  of  your  petitioner:     {Here  was  set  out  copy  of 
resolution.  )^ 

A  certificate,  setting  forth  the  said  resolution,  the  proceedings 
had  at  the  said  meeting,  a  copy  of  the  notice  thereof  and  the 
manner  of  its  service,  and  containing  the  certificate  required  by 
sections  four  and  two  of  the  said  statute,  and  also  a  duplicate  of  such 
certificate,  were  thereupon  duly  made,  executed  and  acknowledged, 
in  accordance  with  the  provisions  of  the  said  statute,  by  A.  Foster 
Higgins  as  chairman  and  Edward  Brush  as  secretary  thereof,  A  copy 
of  said  certificate  is  hereto  annexed  and  is  made  a  part  hereof.  On 
the  twenty-second  day  of  July,  iS96,  the  said  certificate  was  duly 
tendered  to  the  said  secretary,  together  with  the  sum  ol  fourteen  and 
fifty  one-hundredths  dollars  (%lJf..50'),  the  amount  in  full  of  his  fee  for 
filing  and  recording  the  same,  and  at  the  same  time  he  was  requested 
by  or  on  behalf  of  your  petitioner  to  file  and  record  the  said  certifi- 
cate in  his  office,  as  required  by  the  said  statute.  The  said  secretary 
received  and  has  retained  the  said  sum  oi  fourteen  and  fifty  one-hun- 
dredths dollars  ($i^.56>).  He  has  refused,  however,  and  he  still 
refuses,  either  to  file  or  to  record  the  said  certificate,  assigning  and  he 
did  assign,  and  does  assign,  as  the  sole  reason  for  such  refusal,  the 
failure  on  the  part  of  your  petitioner  to  pay  to  the  state  treasurer 
the  sum  oi  five  thousand  six  hundred  and  twenty-five  dollars  ($5,6^5), 
being  a  tax  of  one-eighth  of  one  per  cent,  on  the  amount  of  your  peti- 


1.  The  resolution  referred  to  in  the  text 

was  as  follows: 

"  Resolved,  That  this  corporation  be 
reincorporated  under  the  statute  of  the 
state  of  New  York  known  as  the  Busi- 
ness Corporation  law,  being  chapter  691 
of  the  Laws  of  1892  as  amended  by  chap- 
ter 671  of  the  Laws  of  1895,  Resolved, 
That  the  capital  stock  of  the  reincor- 
porated company  shall  be  four  million 
five  hundred  thousand  dollars  (%4^oo,- 
000),  divided  into  shares  and  with  pref- 
erences and  privileges  as  stated  in  the 
certificate  hereinafter  directed;  and  that 
the  name  of  the  company,  the  purpose 
for  which  it  is  to  be  formed,  the  loca- 
tion of  its  principal  business  office,  its 
duration,  and  the  number  of  its  direc- 
tors shall  also  be  as  stated  in  the  cer- 
tificate hereinafter  directed  to  be  exe- 
cuted. Resolved,  That  the  officers  of 
this  meeting  and  the  officers  of  this 
company  be,  and  they  hereby  are,  di- 
rected to  execute  a  certificate  of  the 
proceedings  of  this  meeting  in  con- 
formity with  the  provisions  of  the 
said  Business  Corporation  law;  which 
certificate,  in  addition  to  such  other 
matters  as  may  be  required  by  law, 
shall  contain  in  substance  the  following 
clauses: 

1.  {Name  of  corporation  reincorporated.) 

2.  {Purposes  of  incorporation.) 


3.  {Amount  and  classification  of  capital 
stock;  stating  preferences;  attributes  of 
preferred  stock,  etc.) 

4.  {A  umber  of  shares,  and  par  value 
of  each.) 

5.  {Amount  of  capital  with  which  to 
commence  business.) 

6.  Location  of  principal  business  office.) 

7.  Its  duration  to  be  one  hundred 
years. 

8.  The  number  of  its  directors  is 
eleven. 

9.  The  names  and  post-office  ad- 
dresses of  the  directors  for  the  first  year 
are  respectively  as  follows  {names  and 
post-office  addresses). 

10.  In  case  any  increase  of  the  cor- 
porate stock  shall  hereafter  be  author- 
ized, and  such  increased  stock  shall  be 
used,  the  corporation  may  grant  to  such 
new  stock  such  preference  over  the 
common  stock  as  shall  be  determined 
by  the  vote  of  a  majority  of  the  stock- 
holders in  meeting  assembled;  provided, 
however,  that  the  preferred  stock  here- 
inbefore refered  to,  amounting  in  all  to 
the  sum  oitwo  million  dollars  (^,000,000) 
in  par  value,  shall  never  lose  its  prefer- 
ence overall  other  stock  of  the  company, 
issued  or  to  be  issued,  without  the  writ- 
ten concurrence  to  that  effect  of  the 
holders  of  three-fourths  of  such  preferred 
stock  then  outstanding." 


640 


Volume  5. 


6418.  CORPORA  TIONS.  64 1 8. 

tioner's  capital  stock,  to  wit,  the  sum  oi  four  million  Jive  hundred  thou- 
sand ^oWdiVS,  (^,500,000)  claimed  by  the  said  secretary  to  be  due  from 
your  petitioner  under  the  said  chapter  143  of  the  Laws  of  1886.  As 
your  petitioner  is  informed  and  believes,  the  total  amount  of  such 
tax  has  already  been  paid  by  your  petitioner  to  the  said  treasurer,  as 
is  hereinbefore  set  forth,  and  neither  the  said  sum  oi  five  thousand  six 
hundred  and  twenty-five  dioWaxs  (%5,625)  nor  any  part  thereof  is  due 
from  your  petitioner  to  the  said  treasurer,  and,  as  your  petitioner 
is  further  informed  and  believes,  it  is  the  present  official  duty  of  the 
said  secretary  to  receive  the  said  certificate  and  to  file  and  record 
the  same,  which  duty  he  refuses  to  perform. 

Wherefore,  your  petitioner  prays  from  this  honorable  court  an 
order  directing  that  there  issue  out  of  and  under  the  seal  of  said 
court  a  peremptory  writ  of  mandamus  requiring  and  compelling  the 
said  secretary  to  receive  the  said  certificate  and  to  file  and  record 
the  same  and  for  such  other  and  further  relief  as  may  be  just. 

Dated  New  York  City,  September  18,  i896. 

Con'l  Kansas  City  Smelting  and  Refg.  Co. 

By  Edward  Brush,  A.  Sec'y. 

(  Verification^ 

b.  Answer  of  Secretary  of  State  to  Order  to  Show  Cause. 

Form  No.  6418.' 

Supreme  Court,  Albany  County. 
The  People  ex  rel.  Carl  Schurz  et  al., 
against 
Frederick  Cook,  Secretary  of  State,  etc. 

And  now  comes  the  said  Frederick  Cook,  as  secretary  of  state,  by 
D.  O'Brien,  attorney-general,  and  for  answer  to  the  application  of 
the  said  relator  and  in  answer  to  the  order  to  show  cause  made  herein, 
makes  and  states  the  following  objections  to  the  filing  of  the  certifi- 
cate 3  referred  to  in  the  moving  papers  herein,  as  good  and  valid 
reasons  for  his  refusal  to  file  the  same: 

1.  See  the  title  Verifications.  zation  subject  to  the  payment  of  the 

2.  This  answer  to  the  order  to  show    corporation  tax. 

cause  is  copied  from  the  record  in  the  3.  The  certificate  of  organization  of  the 

case  of  People  v.  Cook,  no  N.  Y.  443,  Western  New  York  and  Pennsylvania 

On  appeal  from  the  general  term  of  the  Railway   Company   of   New   York,   as 

supreme    court    affirming   the    special  appears   in    the   record  of  the  case  of 

term  denying  the  motion  of  the  relators  People   v.   Cook,   no  N.   Y.  443,13  as 

in  this  case  for  a  peremptory  writ  of  follows: 

mandamus  directed  to  the  secretary  of  "Whereas,  on  the  loth  day  of  Sep. 

state  to  require  him  to  file  in  his  office  temher,  iScSy,  under  and  in  pursuance 

a  certificate  of  organization  of  certain  of  a  judgment  of  the  Supreme  Court  of 

railroad    companies    organized    under  the  State  of  New  York,  entered  in  the 

the   Reorganization   act   of   New  York  office  of  the  Clerk  of  ^riV  County,  dated 

(Laws  (1874),  c.  430,  as  amended  Laws  June  ijth,  iSSy,  in  a  suit  therein  pend- 

(1876),  c.   446),  the  orders  of  both    the  ing  wherein  Henry  Martin  and  Frank- 

general  and  special  terms  were  affirmed  tin   D.    Locke   were  plaintiffs,  and  the 

and    the  motion  for  mandamus  denied,  Buffalo,   New     York   and    Philadelphia 

the  court  holding  that  a  new  corpora-  Railway    Company,    the    Buffalo,    New 

tion  had  been  created  by  the  reorgani-  York  and  Philadelphia   Railroad  Com' 

c  E.  of  F.  P.  —41.                         641  Volume  5. 


6418. 


CORPORATIONS. 


6418. 


I. 

That  the  said  company  offering  the  said  certificate,  to  wit,  the 
Western  New  York  and  Pennsylvania  Railway  Company  of  Neiv  York, 
refused  and  still  neglects  and  refuses  to  pay  the  tax  of  one-eighth  of 
one  per  cent,  upon  the  amount  of  capital  stock  which  said  company  is 
authorized  to  have  or  upon  the  increase  thereof,  in  accordance  with 
chapter  143  of  the  Laws  of  1886. 

II. 

Said  articles  or  certificate  of  incorporation,  so  offered,  are  defec- 
tive and  insufficient  in  law  for  the  following  reasons: 

The  said  company  has  decreased  the  capital  stock  of  the  corpora- 
tion' sold  by  the  judgment  of  the  court  referred  to  in  the  moving 
papers  from  twenty  million  three  hundred  and  fifty  thousand  dollars  to 
the  sum  oi  fifteen  million  dollars  as  the  maximum  amount,  without 


pany  and  others  were  defendants,  which 
judgment  was  made  or  given  to  execute 
the  provisions  and  enforce  the  lien  of  a 
mbrtgage  or  deed  of  trust  executed  by 
the  Buffalo,  New  York  and  Philadelphia 
Railway  Company  to  foseph  Seligman 
and  Henry  Martin,  da.X.^A  fuly  i,  187/, 
William  L.  Marcy,  Esq.,  as  Referee, 
sold  at  public  auction:  All  the  railroad 
formerly  of  the  said  The  Buffalo,  New 
York  and  Philadelphia  Railway  Com- 
pany, and  forming  part  of  the  railroad 
of  the  Buffalo,  New  York  and  Philadel- 
phia Railroad  Company,  beginning  at 
(Here  was  inserted  description  of  line  of 
railroad'),  and  all  and  singular  the  right 
of  way  of  said  company,  and  the  lands, 
real  estate,  rails,  tracks,  bridges,  build- 
ings, depots,  station-houses,  shops, 
warehouses,  structures,  erections,  fix- 
tures and  appurtenances  thereunto  be- 
longing, or  in  anywise  appertaining, 
and  also  all  the  locomotives,  engines, 
tenders,  carriages,  shop  tools  and  ma- 
chinery, and  all  the  franchises,  rights 
and  privileges,  and  all  other  property, 
real  or  personal,  of  the  said  Railway 
Company,  and  also  all  the  estate,  right, 
title,  interest,  property,  possession, 
claim  and  demand  whatsoever,  as  well 
in  law  as  in  equity,  of  the  said  Rail- 
way Company,  of,  in  and  to  the  same 
and  every  part  and  parcel  thereof,  with 
the  appurtenances; 

And  whereas,  on  the  i£th  day  of 
September,  i8<$y,  under  and  in  pursu- 
ance of  a  decree  of  the  Circuit  Court  of 
the  United  States  for  the  Western  Dis- 
trict of  Pennsylvania,  dated  May  14, 
i2i87,  in  a  suit  therein  pending  wherein 
Archer  N.  Martin  was  complainant 
and  the  Buffalo,  New  York  and  Phila- 
delphia Railroad  Company  and  the  Fidel- 


ity Insurance  Trust  and  Safe  Deposit 
Company  were  defendants,  and  under 
and  in  pursuance  of  a  decree  of  the 
Circuit  Court  of  the  United  States  for 
the  Northern  District  of  New  York, 
dated  fune  11,  \^8y,  in  a  suit  therein 
pending  between  the  same  parties, 
which  decrees  were  made  and  given  to 
execute  the  provisions  and  enforce  the 
lien  of  a  mortgage  or  deed  of  trust 
executed  by  the  Buffalo,  Pittsburgh  and 
Western  Railroad  Company  to  the  Fidelity 
Insurance  Trust  and  Safe  Deposit  Com- 
pany, dated  April  i,  iSSi,  Sussex  D. 
Davis,  Esq.,  as  Special  Master,  sold  at 
public  auction  all  and  singular  the 
entire  line  of  railway  of  the  Buffalo, 
Pittsburgh  and  Western  Railroad  Com- 
pany, now  part  of  the  Buffalo,  New 
York  and  Philadelphia  Railroad,  being 
partly  situate  in  the  State  of  A'ew  York 
and  partly  in  the  State  of  Pennsylvania, 
together  with  all  branch  lines,  and 
more  particularly  described  as  follows, 
that  is  to  say:  (description  of  railroad 
property  sold). 

And  whereas,  on  the  i^th  day  of  Sep- 
tember, 1S87,  under  and  in  pursuance 
of  a  decree  of  the  Circuit  Court  of  the 
United  States  for  the  Western  District  of 
Pennsylvania,  dated  May  14th,  1^87,  in 
a  suit  wherein  the  United  States  Trust 
Company  was  complainant,  and  the 
Buffalo,  New  York  and  Philadelphia 
Raihvay  Company,  the  Buffalo,  New 
York  and  Philadelphia  Railroad  Com- 
pany and  others  were  defendants,  and 
under  and  in  pursuance  of  a  judgment 
of  the  Supreme  Court  of  the  State  of 
New  York,  entered  in  the  office  of  the 
Clerk  of  Erie  County,  dated y««<?  13, 
1^187,  in  a  suit  therein  pending  between 
the   same  parties,    which   decree    and 


643 


Volume  5. 


6418. 


ORPORATIONS. 


6418. 


the  approval  of  the  comptroller,  and  contrary  to  and  without  a  com- 
pliance with  the  provisions  of  chapter  264  of  the  Laws  of  1878  as 
amended  by  chapter  306,  Laws  of  1882. 

.  in. 

And  the  said  certificate  of  incorporation  proposed  to  be  filed  is 
defective  and  not  in  compliance  with  the  provisions  of  chapter  446  of 
the  Laws  of  1876,  in  that  neither  the  said  certificate  or  articles  and 
agreement  contain  suitable  provisions  enabling  the  bondholders 
therein  mentioned  to  vote  by  proxy,  as  provided  by  section  one  of 
said  act. 

Albany,  October  12,  iS87. 

D.  O'Brien,  Attorney-General,  for  Deft. 


judgment  were  made  and  given  to  exe- 
cute the  provisions  and  enforce  the 
lien  of  a  mortgage  or  deed  of  trust  exe- 
cuted by  the  Buffalo,  New  York  and 
Philadelphia  Railway  Company  to  the 
United  States  Trust  Company,  dated yw/j/ 
/,  i8<fe;  Sussex  D.  Davis,  Esq.,  as  Spe- 
cial Master  and  Referee,  sold  at  public 
auction  all  and  singular  the  entire  line 
of  the  Buffalo,  New  York  and  Philadel- 
phia Railway  Company,  and  of  its  suc- 
cessor, the  Buffalo,  New  York  and 
Philadelphia  Railroad  Company,  being 
partly  situate  in  the  State  of  New  York 
and  partly  in  the  State  of  Pennsylvania, 
more  particularly  described  as  follows, 
that  is  to  say:  {description  of  roads  and 
property  sold). 

And  whereas,  on  the  ijth  day  of 
September,  iScSy,  under  and  in  pursu- 
ance of  a  decree  of  the  Circuit  Court  of 
the  United  States  for  the  IVestern  Dis- 
trict of  Pennsylvania,  dated  Afay  14, 
r8<5y,  in  a  suit  therein  pending  wherein 
Edward  W.  Kinsley  was  complainant 
and  the  Buffalo,  New  York  and  Phila- 
delphia Railroad  Company  and  the  Fi- 
delity Insurance  Trust  and  Safe  Deposit 
Company  were  defendants,  and  under 
and  in  pursuance  of  a  decree  of  the 
Circuit  Court  of  the  United  States  for  the 
Northern  District  of  New  York,  dated 
June  It,  i8<5'7,  in  a  suit  therein  pend- 
ing between  the  same  parties,  which 
decrees  were  made  to  execute  the  pro- 
visions and  enforce  the  lien  of  a  mort- 
gage or  deed  of  trust  executed  by  the 
Buffalo,  New  York  and  Philadelphia 
Railroad  Company  to  the  Fidelity  Insur- 
ance  Trust  and  Safe  Deposit  Company, 
AnlcA  January  i,  i8<K/,  Sussex  D.  Davis, 
Esq.,  as  Special  Master,  sold  all  and 
singular  the  entire  line  or  lines  of  rail- 
road of  the  Buffalo,  New  York  and 
Philadelphia  Railroad  Company,  being 
partly  situate  in  the  State  of  New  York 


and  partly  in  the  State  oi  Pennsylvania* 
as   the   same   now    is   located  or   con 
structed,   and    more    particularly   de- 
scribed   as    follows,    that    is    to    say: 
(description  of  railroad  property  sold). 

And  whereas,  Carl  Schurz,  Clarence 
H.  Clark,  Charles  M.  Fry,  Isaac  N. 
Seligman  and  T.  H.  Adrian  Tromp, 
became  the  purchasers  of  all  the  rail- 
roads, property  and  franchises  sold  at 
the  several  sales  before  mentioned; 

And  whereas.  The  Buffalo,  New  York 
and  Philadelphia  Railway  Company  was 
a  corporation  organized  under  an  Act 
of  the  Legislature  of  the  State  of  N'ew 
York,  known  as  Chapter  672  of  the 
Laws  of  1866,  and  entitled  'An  Act  for 
the  consolidation  of  the  Buffalo  and 
Washington  Railway  Company  with  the 
Sinnomahoning  Portage  Railroad  Com- 
pany of  Pennsylvania,'  passed  April  18, 
1866,  and  under  the  Laws  of  Pennsyl- 
vania; 

And  whereas,  The  Buffalo,  Pittsburj^k 
and  IVestern  Railroad  Company  was  a 
corporation  organized  under  an  Act  of 
the  Legislature  of  the  State  of  New  York,. 
known  as  Chapter  917  of  the  Laws  of 
1S69,  entitled  'An  Act  authorizing  the 
consolidation  of  certain  railroad  com- 
panies,' passed  May  20,  1869,  and  of 
the  acts  amendatory  thereof  and  sup- 
plementary thereto,  and  of  an  Act  of 
the  said  Legislature  known  as  Chapter 
256  of  the  Laws  of  1875,  entitled  'An 
Act  relating  to  the  consolidation  of 
certain  railroad  companies,'  passed 
May  7,  1875,  and  of  the  acts  amenda- 
tory thereof  and  supplementary  there- 
to, and  under  the  Laws  oi  Pennsylvania; 

And  whereas,  The  Buffalo,  New  York 
and  Philadelphia  Railroad  Company  was 
a  corporation  organized  under  the  said 
Act  of  the  Legislature  of  the  State  of 
New  York,  known  as  Chapter  917  of 
the  Laws  of  1869,  and  of  the  acts  amend- 


643 


Volume  5. 


6419. 


CORPORA  TIONS. 


6419. 


2.  Proceeding's  against.^ 
a.  To  Recover  Bonds  and  Prevent  Issue  of  Other  Bonds. 

Form  No.  6419.' 

To  the  Circuit  (Zoy\xt  for  the  County  of  Berrien.     In  Chancery. 

Your  orator,    William  Desier,   assignee  of  Reeves^  Patterson   and 


atory  thereof  and  supplementary  there- 
to, and  under  the  said  Act  of  the  said 
Legislature  known  as  Chapter  256  of 
the  Laws  of  1875,  and  amendatory 
thereof  and  supplementary  thereto,  and 
under  and  in  pursuance  of  the  Laws  of 
Pennsylvania ; 

And  whereas,  The  said  purchasers 
have  acquired  title  to  the  railroad  prop- 
erty and  franchises  sold  as  aforesaid, 
pursuant  to  a  plan  or  agreement  for  or 
in  anticipation  of  the  readjustment  of 
the  respective  interests  therein  of  the 
mortgage  creditors  and  stockholders  of 
the  Buffalo,  N'ew  York  and  Philadelphia 
Railroad  Company,  the  company  which 
last  owned  such  property  and  fran- 
chises at  the  time  of  the  said  sales,  and 
for  the  representation  of  such  interests 
of  creditors  and  stockholders  in  the  new 
corporation  to  be  formed,  which  plan 
or  agreement  is  hereinafter  set  forth; 

And  whereas.  The  said  purchasers 
have  associated  with  themselves  George 
Zabriskie  {names  0/ other  associates); 

Now,  therefore,  the  said  Carl Schurz, 
Clarence  H.  Clark,  Charles  M.  Fry,  Isaac 
N.  Scligman  and  T.  II.  Adrian  Tramp, 
the  said  purchasers,  and  their  said  asso- 
ciates above  named,  hereby  certify  that 
they  have  associated  themselves  to- 
gether under  and  in  pursuance  of  an 
Act  of  the  Legislature  of  the  State  of 
New  York,  known  as  Chapter  430  of 
the  Laws  of  1874,  entitled  'An  Act  to 
facilitate  the  reorganization  of  railroads 
sold  under  mortgage,  and  providing 
for  the  formation  of  new  companies  in 
such  cases,'  passed  May  11,  1874,  and 
the  acts  amendatory  thereof  and  sup- 
plementary thereto,  for  the  purpose  of 
becoming  and  being  a  body  politic  and 
corporate,  and  as  such,  of  taking,  hold- 
ing and  possessing  the  railroads,  titles 
and  properties  included  in  the  aforesaid 
sales,  and  all  the  franchises,  rights, 
powers,  privileges  and  immunities 
which  were  possessed  before  such  sales 
by  the  Buffalo,  New  York  and  Philadel- 
phia Railroad  Company,  or  by  G.  Clinton 
Gardner,  its  Receiver,  or  by  the  Buffalo, 
New  York  and  Philadelphia  Railway 
Company,  or  by  the  Buffalo,  Pittsburgh 


and  Western  Railroad  Company;  and  do 
further  certify: 

That  the  name  of  the  new  corporation 
intended  to  be  formed  by  the  filing  of 
this  certificate  is  '  JVestern  New  York 
and  Pennsylvania  Railway  Company  of 
New  York ' ; 

That  the  maximum  amount  of  the 
capital  stock  of  the  said  new  corpora- 
tion is  fifteen  million  dollars,  and  the 
number  of  shares  into  which  the  same 
is  to  be  divided  is  one  hundred  and 
fifty  thousand,  all  of  which  shall  be 
common  stock; 

That  the  number  of  directors  by 
whom  the  affairs  of  the  said  new  cor- 
poration is  to  be  managed  is  thirteen, 
and  that  the  names  and  residences  of 
the  persons  selected  to  act  as  directors 
for  the  first  year  of  its  organization  are: 
{tiames  and  residences  of  directors). 

That  these  articles  may  be  altered  or 
amended  from  time  to  time,  and  in  such 
manner  as  the  holders  of  two-thirds  of 
the  stock  of  the  company  may  direct  or 
approve; 

That  the  aforesaid  plan  or  agreement 
for  readjustment  is  as  follows:  {Here 
7uas  set  out  the  agreement  /or  adjustment.) 

In  witness  whereof,  the  subscribers 
have  hereunto  set  their  hands  and  seals 
the  jot h  day  of  September,  i8Sj."  {Sig- 
natures, seals  and  acknowledgment.)" 

1.  Proceedings  by  and  against  corpora- 
tions,   generally,    see    supra,    note    i, 

p.  527- 

2.  This  bill  is  based  upon  the  facts  in 
Dester  v.  Ross,  85  Mich.  375.  By  it 
plaintiff  sought  to  compel  the  discharge 
of  two  mortgages  executed  by  the  St. 
Joseph  Valley  Railroad  Company  and 
held  by  Albert  F.  Ross  and  William  R. 
Rough  and  Ed.  M.  Rough,  as  execu- 
tors. The  court  duly  overruled  a  gen- 
eral demurrer  interposed  to  the  bill, 
which  ruling  was  sustained  on  appeal, 
the  court  holding  that  a  case  of  equi- 
table relief  was  made  out  by  the  bill. . 

For  formal  parts  of  bills  in  equity,  gen- 
erally, see  the  title  Bills  in  Equity, 
vol.  3,  p.  417;  of  complaints  or  petitions, 
generally,  see  the  title  Complaints,  vol. 
4,  p.  1019. 


644 


Volume  5. 


64 1 9.  CORPORA  TIONS.  64 1 9. 

Company,  brings  this  bill  as  plaintiff  against  A //red  P.  Ross,  cashier 
Farmers  and  Merchants  Bank  of  Buchanan,  and  William  R.  Rough 
and  Ed.  M.  Rough,  executors  of  George  H.  Rough,  deceased,  Charles  A. 
Johnson,  Jonas  J.  Burns,  the  St.  Joseph  Valley  Railway  Company,  and 
the  American  Loan  and  Trust  Cornpany,  as  defendants. 
Thereupon  plaintiff  avers: 

I.  That  the  defendant,  the  St.  Joseph  Valley  Railroad  Company,  is  a 
corporation  which  was  duly  formed,  organized  and  incorporated  under 
and  by  virtue  of  the  laws  of  this  state. 

II.  That  said  St.  Joseph  Valley  Railroad  Company  became  insolvent  on 
the  twentiethday  oi  January,  i2>86,  and  thereupon  in  due  course  of  law 
passed  into  the  hands  of  a  receiver. 

III.  That  the  said  St.  Joseph  Valley  Railroad  Company  had,  prior  to 
the  twentieth  day  of  January,  i886,  operated  a  narrow-gauge  railroad 
between  Buchanan  and  Berrien  Springs,  in  this  state,  a  distance  of  ten 
miles. 

IV.  That  the  said  St.  Joseph  Valley  Railroad  Company  had,  to  wit, 
prior  to  the  said  twentieth  day  oi  Jamiary,  i886,  made,  executed  and 
delivered  t7vo  certain  mortgages,  each  for  about  the  sum  of  twenty 
thousand  dollars,  one  made,  executed  and  delivered  some  time  in 
November,  i880,  to  and  in  favor  of  the  said  defendant,  Alfred F.  Ross, 
and  the  other  made,  executed  and  delivered  some  time  in  January, 
iS83,  to  one  George  H.  Rough. 

V.  That  the  said  George  H.  Rough  died  on  the  tenth  day  of  May, 
\88Jf^  leaving  a  last  will  and  testament,  whereby  the  said  defendants, 
William  R.  Rough  and  Ed.  M.  Rough,  were  appointed  as  executors  of 
said  last  will  and  testament,  and  that  the  said  George  H.  Rough  was, 
at  the  time  of  his  death,  a  resident  of  Berrien  county,  Michigan,  and 
that  on  \.\\^  first  day  oi  June,  \Z8Jf.,  said  last  will  and  testament  of  the 
said  George  H.  Rough,  deceased,  was  duly  proved  in  the  Probate  Court 
of  the  said  county  of  Berrien,  in  the  state  of  Michigan,  and  duly  admit- 
ted to  probate  by  said  court;  and  that  immediately  thereafter,  on  the 
first  day  oi  June,  188^,  letters  testamentary  were  regularly  and  duly 
issued  by  said  Probate  Court  to  the  said  William  R.  Rough  and  Ed.  M. 
Rough,  said  defendants,  the  said  executors  named  in  said  last  will  and 
testament,  and  that  the  said  defendants,  William  R.  Rough  and  Ed.  M. 
Rough,  thereupon  duly  qualified  and  entered  upon  the  discharge  of  the 
said  duties  of  their  said  office  as  said  executors,  and  ever  since  that 
time  have  been  and  are  now,  and  were  at  the  times  hereinafter  men- 
tioned, acting  as  such  executors. 

VI.  That  the  sax^Ross  has  assigned  an  undivided  one-half  of  his 
said  mortgage  unto  the  said  William  R.  Rough  and  Ed.  M.  Rough,  the 
said  defendants  and  said  executors,  and  that  they,  the  said  William 
R.  Rough  and  Ed.  M.  Rough,  the  said  defendants  and  said  executors, 
have  assigned  unto  the  said  Ross  an  undivided  half  oi  the  said  mort- 
gage made,  executed  and  delivered  to  the  said  George  H.  Ross  by  the 
said  6"/.  Joseph  Valley  Railroad  Company  as  hereinabove  mentioned. 

VII.  That  on  the  tiventieth  day  oi  April,  i8S9,  all  that  remained  of 
the  property  and  effects  of  the  St.  Joseph  Valley  Railroad  Company  -was 
ten  miles  of  unused  right  of  way,  the  road-bed,  and  the  iron  rails 
thereon. 

645  Volume  5. 


64 1 9.  CORPORA  TIONS.  6419. 

VIII.  That  on  the  twentieth  day  of  April,  iSS9,  the  said  defend- 
ants, Ross,  William  R.  Rough  and  Ed.  M.  Rough,  as  parties  of  the 
first  part,  and  Jonas  J.  Burns,  party  of  the  second  part,  entered 
into  a  written  agreement,  by  the  terms  of  which  Bur?is  was  to  bid 
in  the  title,  rights,  franchises  and  property  of  the  said  railroad  com- 
pany at  the  receiver's  sale  thereof,  which  had  been  fixed  for  the 
seventh  day  of  May  following;  that  within  thirty  days  thereafter  he, 
the  said  Burns,  would  rebuild  and  reconstruct  said  road  as  a  standard- 
gauge  road,  and  within  ninety  days  the  same  should  be  finished  and. 
in  operation  between  Buchanan  and  Berrien  Spri?igs.  That  in  con- 
sideration of  the  premises,  the  parties  of  the  first  part  agreed  to 
execute  and  place  in  the  hands  of  defendant  Charles  A.  Johnson  dis- 
charges of  the  mortgages  held  by  them,  and  also  of  a  judgment 
which  defendant  Ross  held.  That  in  consideration  of  these  releases, 
Burns  agreed  that  a  mortgage  executed  by  the  legal  corporation 
then  owning  said  road,  for  the  sum  oi  fifty  thousand  doWars,  should 
be  placed  thereon,  to  secure  fi/ty  bonds  of  one  thousand  dollars  each, 
running  thirty  years,  ?iX  five  per  cent.,  and  that  sixteen  of  said  bonds 
should  be  delivered  to  said  Johnson,  eight  for  said  Ross,  and  eight  for 
the  said  William  R.  Rough  and  Ed.  M.  Rough. 

IX.  That  the  receiver's  sale  was  had,  and  said  Burns  bid  in  all  the 
said  railroad  property,  franchises,  etc.,  and  received  a  conveyance 
thereof.  That  a  new  corporation  was  formed,  to  be  known  as  the 
'■'■  St.  Joseph  Valley  Railway  Company,"  to  construct  and  operate  said 
road  from  Buchanan  to  Berrien  Springs,  and  to  extend  the  same 
southerly  to  South  Bend,  Indiana,  and  northerly  to  St.  Joseph  or  Benton 
Harbor;  and  the  title  to  all  the  property  acquired  at  said  receiver's 
sale  was  conveyed  by  Burns  to  said  new  company. 

X.  That  within  the  ninety  days  named  in  said  agreement  the  said 
road  had  been  reconstructed  as  a  broad-gauge  road,  at  an  expense 
of  about  thirty  thousand  dollars,  and  regular  trains  were  running 
thereon,  carrying  passengers  and  freight  between  Buchanan  and 
Berrien  Springs. 

XI.  That  at  a  meeting  of  the  stockholders  of  said  company  held 
on  the  first  day  of  August,  iS89,  the  following  preamble  and 
resolutions  -were  unanimously  adopted :  (^Here  was  set  out  copy  of 
resolutions  y- 

1.  Sesolutions  referred  to  in  the  text  sary,  of  the  denomination  of  one  thou- 

were  as  foilows:  sand  dollars  each,   bearing  j"  per  cent. 

"Whereas,  it  is  necessary  for  this  per  annum  interest,  payable  j^wiawMw- 
company  to  borrow  money  or  pledge  ally,  and  running  jo  years  from  date, 
its  credit  for  the  purpose  of  securing  which  said  mortgage  and  bonds  shall 
money  to  construct  and  complete  its  bear  date  of  August  i,  i%8g.  It  is  fur- 
road;  therefore  be  it  Resolved,  That  the  ther  Resolved,  That  the  amount  of 
board  of  directors  are  hereby  author-  bonds  to  be  issued  on  the  railroad  of  said 
ized,  empowered  and  directed  to  exe-  railway  company  between  the  villages 
cute  a  mortgage  covering  all  the  oi  Buchanan&nd  Berrien  Springs  htWm- 
property  of  the  company  in  the  State  ited  to  fifty  thousand  dollars  {%50,ooo), 
of  Michigan  in  a  sum  not  exceeding  and  that  no  further  sum  shall  be  issued 
%io,ooo  per  mile  of  completed  road,  on  the  aforesaid  portion  of  the  railroad 
and  to  issue  bonds  of  this  company,  of  the  said  railway  company  without 
secured  by  said  mortgage,  from  time  the  consent  of  all  the  holders  of  the 
to  time,  as  may  be  proper  and  neces-  aforesaid  bonds,  numbered  one  \.o  fifty, 

646  Volume  5. 


6419.  CORPORA  TIONS.  64 1 9. 

XII.  That  pursuant  to  authority  conferred  by  said  resolutions, 
the  board  of  directors,  on  the  first  day  of  August,  iS89,  executed 
and  delivered  to  the  American  Loan  and  Trust  Company  of  New  York, 
as  trustee,  a  mortgage  upon  ajl  the  property  of  said  railway  com- 
pany, and  all  further  extensions  thereof,  without  specifying  the 
amount  for  which  given,  but  providing  that  it  was  to  secure  bonds 
to  be  certified  and  issued  by  said  trustee  to  said  railway  company, 
"not  exceeding  at  any  time,  in  either  certification^  or  delivery, 
%10,000  for  each  mile  of  such  railroad  completed  so  that  cars  may 
be  run  thereon,"  and  further  providing  that  the  said  bonds  should 
be  certified  and  issued  only  "upon  the  written  application  of  the 
railway  company,  expressed  through  a  resolution  of  its  board  of 
directors  or  its  executive  committee,  adopted  at  a  regular  meeting, 
or  at  a  special  meeting  called  for  that  purpose." 

XIII.  That  one  hundred  bonds  were  printed,  but  fifty  of  which 
have  been  certified  and  issued.  That  sixteen  of  said  bonds  have 
been  delivered  to  Charles  A.  Johnson  under  said  agreement.  That 
the  said  Ross  and  the  said  William  R.  and  Ed.  M.  Rough  have  exe- 
cuted and  delivered  to  said  Johnson  discharges  of  the  aforesaid 
mortgages,  but  have  refused  to  accept  said  bonds,  and  have  directed 
said  Johnson  not  to  deliver  to  the  St.  Joseph  Valley  Railway  Company 
the  discharges  of  said  mortgages. 

XIV.  That,  after  the  execution  of  the  aforesaid  agreement 
between  said  mortgagees  and  said  Burns,  the  latter  applied  to 
Reeves,  Patterson  and  Company,  complainant's  assignors,  for  moneys 
with  which  to  reconstruct  the  said  road,  and  that  said  Reeves,  Pat- 
terson and  Company,  relying  upon  the  performance  of  said  agreement 
by  both  parties  thereto,  advanced  the  sum  of  twenty  thousand  six 
hundred  and  twenty  dollars,  which  moneys  were  used  in  the  recon- 
struction of  said  road;  that  because  of  the  furnishing  of  said  moneys, 
and  the  refusal  of  the  said  mortgagees  to  discharge  said  mortgages 
as  agreed,  the  said  Reeves,  Patterson  and  Company  became  embar- 
rassed financially,  and  indebted  to  banking  houses  at  Chicago  and 
elsewhere,  and  finally  made  an  assignment  to  complainant. 

XV.  That,  to  secure  said  Reeves,  Patterson  and  Company,  certain 
of  said  bonds  were  delivered  to  them,  and  others  were  purchased  by 
them,  and  all  of  said  bonds  so  issued  and  all  so  purchased,  aggre- 
gating in  amount  thirty-four  thousand  do\\a.rs,  were  hypothecated  by 
said  Reeves,  Patterson  and  Company  to  secure  their  creditors;  that 
the  fifty  bonds  printed,  but  not  certified  by  said  trustee,  as  afore- 
said, have  not  been  used,  but  are  in  the  safe  of  the  said  Reeves,  Pat- 
terson and  Company,  and  can  be  surrendered  to  be  destroyed  if  the 
court  shall  so  order. 

XVI.  That  no  attempt  has  been  made  to  negotiate  said  fifty 
bonds,  except  that  some  negotiations  have  been  had  with  said  Ross 
and  the  Roughs,  whereby  a  few  of  them  could  be  used,  but  the  nego- 
tiations fell  through. 

XVII.  That  since  the  appointment  of  complainant  as  assignee  he 
has  prosecuted  said  claim  to  judgment  against  the  St.  Joseph  Valley 

inclusive.    And  be  it  further  Resolved,     Company  be,  and  is  hereby,  made  the 
That    the   American    Loan    and    Trust    trustee  of  said  mortgage." 

647  Volume  5. 


6420.  CORPORATIONS.  6420. 

Railway  Company^  upon  which  an  execution  has  been  issued,  which 
has  been  levied  upon  all  the  property  of  said  railway  company. 

XVIII.  That  if  the  agreement  aforesaid  is  carried  out,  and  said 
mortgages  discharged,  complainant  will  be  able  to  pay  in  full  all  the 
creditors  of  said  Reeves,  Patterson  and  Cotnpany;  otherwise  he  will  not 
be  able  to  pay  more  than  ten  or  fifteen  cents  on  the  dollar  of  that 
indebtedness. 

XIX.  That  a  large  amount  of  aid  has  been  pledged  to  said  rail- 
way company,  and  in  case  said  mortgages  are  discharged,  the  bonds 
issued,  and  the  said  contract  performed  according  to  its  terms, 
that  the  said  railway  company  will  be  able  to  pay  the  aforesaid  judg- 
ment and  the  bonds  in  full. 

XX.  That  said  Reeves,  Patterson  and  Company  were  not  aware  that 
the  said  mortgage  was  for  more  than  fifty  thousand  dollars,  but  always 
understood  that  the  said  Burns  and  the  new  company  organized  by 
him  were  carrying  out  said  agreement  according  to  its  terms. 

Wherefore  plaintiff  prays, 

I.  That  Xht  fifty  thousand  doWdiVs  in  bonds  that  have  not  been  cer- 
tified be  delivered  up  for  cancellation;  that  the  railway  company  may 
be  enjoined  from  issuing  any  other  or  further  bonds  than  t\\t  fifty 
thousand  dollars  upon  said  ten  miles  of  road  already  certified,  except 
with  the  consent  of  all  of  the  holders  of  said  bonds. 

II.  That  said  company  and  said  Burns  may  be  required  and 
decreed  to  perform  the  aforesaid  contract. 

III.  That  the  mortgagees  aforesaid  may  be  ordered  to  discharge 
the  said  mortgages. 

IV.  That  said  Charles  A.  Johnson  be  directed  to  deliver  over  to 
said  mortgagees  the  sixteen  bonds  in  question. 

V.  That  the  American  Loan  and  Trust  Company  of  New  York  be 
directed  to  certify  no  more  bonds  except  upon  the  order  of  the  court. 

William  Dester. 
Oliver  Ellsworth,  Solicitor  and  of  Counsel  for  Plaintiff. 
(^Verification.)^ 

b.  Answer  Allegring  Nonliability. 

Form  No.  6420.* 

City  Court  of  New  York. 

William  Fernschild,  plaintiff,  ) 

against  V  Answer, 

D.  G.  Yuengling  Bre^ving  Company,  defendant.  ) 

The  defendant  answering  the  complaint  herein  by  Guggenheimer, 

1.  See  the  title  Verifications.  court  and  in   the  general   term  of   the 

2.  This  answer  is  copied  from  the  record  same  court,  but  in  the  appellate  term 
in  Fernschild  v.  D.  G.  Yuengling  Brew-  of  the  supreme  court  in  the  city  of  New 
ingCo. ,  15  N.  Y.  App.  Div.  29.  The  York,  which  succeeded  the  court  of 
plaintiff  brought  action  against  the  common  pleas  as  a  reviewing  tribunal 
reorganized  company  to  recover  the  in  cases  from  the  city  court,  it  was  held 
amountof  securities  held  by  him  against  that  plaintifT  was  entitled  to  judgment, 
the  pre-existing  company.  Defendant  On  appeal,  however,  of  the  appellate  di- 
prevailed  at  the  trial  term  of  the  city  vision,  the  judgment  of  the  appellate 

648  Volume  5. 


6420.  CORPORATIONS.  6420. 

Untermyer  6-  Marshall,  its  attorneys,  respectfully  shows  to  this  court 
as  follows: 

First.  It  denies  all  knowledge  or  information  sufficient  to  form  a 
belief  as  to  the  allegations  contained  in  paragraphs  first,  second  and 
/>4/>d?  of  the  complaint. 

Second.  It  admits  that  it  acquired  title  to  the  property  sold  under 
the  foreclosure  sale  referred  to  in  paragraph /c?«rM  of  the  complaint, 
but  denies  that  in  consideration  of  a  bill  of  sale  duly  executed,,  con- 
veying to  the  defendant  certain  personal  property,  effects  and  chat- 
tels, including  the  stock  in  trade,  good- will  and  book  accounts  of  the 
D.  G.  Yuengling,  Jr.,  Breiving  Company,  this  defendant  assumed  cer- 
tain debts,  obligations  and  liabilities  of  said  Z>.  G.  Yuengling,  Jr., 
Brewing  Company,  among  which  was  the  indebtedness  due  to  the 
plaintiff  as  alleged  in  pa.ra.graph  /ourlh  of  the  complaint  at  folios  9 
and  10  thereof,  but  alleges  that  it  did  not  then  or  at  any  other  time 
assume  the  debts  and  obligations  of  the  Z>.  G.  Yuengling,  Jr.,  Brew- 
ing Company,  nor  did  it  then  or  at  any  other  time  promise  or  agree 
to  pay  the  said  debts  or  the  indebtedness  due  the  plaintiff  herein. 

Third.  This  defendant  denies  that,  at  the  time  of  the  delivery  of 
the  bill  of  sale  and  transfer  thereunder,  and  in  consideration  thereof, 
as  alleged  in  pa.ragra.ph/ourlA  of  the  complaint,  the  defendant  duly 
passed  a  resolution,  a  copy  of  which  is  set  forth  in  the  complaint  at 
folios  10, 11  and  12  in  paragraph  fourth  thereof;  and  it  further  denies 
that  the  indebtedness  due  the  plaintiffs  as  aforesaid  was,  by  the  said 
resolution  and  agreement,  or  by  any  resolution  or  agreement,  of  the 
defendant,  assumed  by  it. 

For  a  defense  to  the  second  cause  of  action  set  forth  in  the  com- 
plaint the  defendant  alleges. 

Fourth.  It  denies  all  knowledge  or  information  sufficient  to  form 
a  belief  as  to  the  allegations  contained  in  paragraphs  fi/lh,  sixth  and 
seventh  of  the  complaint. 

Fifth.  It  admits  that  it  acquired  title  to  the  property  sold  under 
the  foreclosure  sale  referred  to  in  paragraph  eighth  of  the  complaint, 
but  denies  that,  in  consideration  of  a  bill  of  sale  duly  executed  con- 
veying to  the  defendant  certain  personal  property,  effects  and  chat- 
tels, including  the  stock  in  trade,  good-will  and  book  accounts  of  the 
D.  G.  Yuengling,  Jr.,  Brewing  Company,  this  defendant  assumed  cer- 
tain debts,  obligations  and  liabilities  of  said  Z>.  G.  Yuengling,  Jr., 
Brewing  Company^  among  which  was  the  indebtedness  due  to  the 
plaintifif  as  alleged  in  paragraph  eighth  of  the  complaint,  at  folios  20 
and  21  thereof;  but  alleges  that  it  did  not  then,  or  at  any  other  time, 
assume  the  debts  and  obligations  of  the  D.  G.  Yuengling,  Jr.,  Brew- 
ing Company,  nor  did  it  then,  or  at  any  other  times,  promise  or  agree 
to  pay  the  said  debts  or  the  indebtedness  due  the  plaintiff  herein. 

term  was  reversed,  and  the  judgment  of  provided  for  in  the  plan  of  reorganiza- 

thegeneral  termof  thecity  of  New  York  tion,  the  reorganized  company  was  not 

was   affirmed,    the   court  holding  that  bound  to  pay  the  mortgage  bonds   of 

where  the  reorganized  corporation  ac-  the  old  company. 

cepted  a  bill  of  sale  of  assets  of  the  old  For  formal  parts   of  answers,   gener- 

corporation  and  covenanted  to  assume  ally,  consult  the  title  Answers  in  Codb 

hs  debts,  except  mortgage  bonds  and  ex-  Pleading,  vol.  i,  p.  799. 
cepting  all  other  indebtedness  otherwise 

649  Volume  5. 


'  Amended  Answer. 


6421.  CORPORATIONS.  6421. 

Sixth.  This  defendant  denies  that  at  the  time  of  the  delivery  of 
the  bill  of  sale  and  transfer  thereunder,  and  in  consideration  thereof, 
as  alleged  in  paragraph  eighth  of  the  complaint,  the  defendant  duly 
passed  a  resolution,  a  copy  of  which  is  set  forth  in  the  complaint  at 
folios  22^  23  and  2^  in  paragraph  eighth  thereof;  and  it  further  denies 
that  the  indebtedness  due  the  plaintiff  as  aforesaid  was  by  said 
resolution  and  agreement  or  by  any  resolution  or  agreement  of  the 
defendant,  assumed  by  it. 

Wherefore  the  defendant  demands  judgment  dismissing  the  com- 
plaint herein,  with  costs. 

Guggenheimer,  Unterniyer  er*  Marshall, 

Attorneys  for  defendant, 

Ji.e  Wall  Street,  New  York  City. 
(  Verification?^ 

e.  Answer  of  Reorganization  Committee   to  an  Attack  upon  their 

Powers. 

Form  No.  6421  .* 
Supreme  Court,  Kings  County. 

Josiah  J.  White,  plaintiff, 

against 

George  C.  Wood,  Samuel  D.  Davis,  Jerry  Collins 

and  Anson  Maltby,  defendants. 

The  defendants  above  named  answering  the  complaint  by  their 

amended zxisvitx,  respectfully  say: 

I.  The  defendants  admit  that  the  plaintiff  purchased  seven  **  Sink- 
ing Fund"  bonds  and  twenty  "  Gold  Mortgage"  bonds  issued  by  the 
Chattaroi  Railway  Company,  but  they  aver  that  they  have  not  any 
knowledge  or  information  sufficient  to  form  a  belief  as  to  the  truth 
of  the  allegations  that  the  plaintiff  continued  to  own  said  bonds  up 
to  the  time  of  the  foreclosure  by  the  Union  Trust  Company  of  the  city 
of  New  York  of  the  mortgages  made  to  secure  the  payment  of  said 
bonds  or  that  plaintiff  holds  and  owns  said  bonds,  and  therefore  they 
deny  the  same. 

II.  They  deny  that  said  Union  Trust  Company  began  a  suit  to  fore- 
close said  mortgages  in  the  United  States  Circuit  Court  for  the  Dis- 
trict of  Kentucky  in  or  about  the  year  i8<97,  and  they  aver  that  the 
said  trust  company  began  said  suit  long  prior  to  the  year  i8^7,  to 
wit,  in  the  year  i855. 

1.  See  the  title  Verifications.  appeal,  however,   to  the  court  of  ap- 

2.  This  answer  is  copied  from  the  record  peals  the  judgment  was  reversed  on 
in  the  case  of  White  v.  Wood,  129  N.  the  theory  that  the  evidence  did  not 
Y.  527.  That  was  a  proceeding  to  show  bad  faith  on  the  part  of  the  de- 
restrain  defendants  from  conveying  or  fendants,  but,  on  the  contrary,  showed 
turning  over  the  franchise  and  prop-  that  they  acted  in  good  faith. 

erty  of  the  Chattaroi  Railway  Company  For  formal  parts   of   answers,  gener- 

to  any  person  or  corporation  except  the  ally,   see  the  titles  Answers  in  Code 

Ohio  and  Big  Sandy  Railroad  Company.  Pleading,  vol.  i,  p.  799;  Answers  in 

Decision  was  in  favor  of  the  plaintiff  in  Equity,  vol.  i,  p.  854;  of  pleas,  gener- 

special  term,  which  was  affirmed  in  the  ally,  see  the  title  Pleas. 
general  term  of  the  supreme  court.    On 

660  Volume  5. 


6421.  CORPORATIONS,  6421. 

III.  They  deny  that  they  entered  into  any  trust  or  other  agree- 
ment with  the  holders  of  ^^  Sinking  Fund"  and  '■^  Gold  Mortgage" 
bonds  issued  by  the  said  Chattaroi  Railway  Company  whereby  they 
agreed  after  purchasing  the  property  of  the  said  Chattaroi  Raihvay 
Company,  on  foreclosure  sale  under  the  mortgages  given  by  said 
Chattaroi  Railway  Company,  to  secure  said  bonds,  and  after  forming  a 
new  corporation  to  take  possession  of  and  operate  the  property  of 
said  Chattaroi  Railway  Company  that  they  would  or  were  required  to 
distribute  all  of  the  stock  of  the  said  new  company  among  the  holders 
of  the  said  bonds  pro  rata  according  to  the  holdings  of  each. 

IV.  They  deny  that  the  deed  of  conveyance  under  any  judicial 
sale  of  the  franchise  and  property  of  the  said  Chattaroi  Railway  Com- 
pany wblS  executed  or  delivered  to  them,  as  joint  tenants  or  otherwise, 
on  or  about  \\i^  fourteenth  day  oi  May,  i887,  and  they  deny  that  on 
or  about  said  date  they  took  possession  of  said  franchise  and  said 
property  or  have  ever  since  been  operating  the  railway,  and  have 
been  receiving  the  incomes  and  revenues  thereof,  but  they  aver  that 
such  delivery  was  made  the  latter  part  of  April,  1888,  since  which 
time  they  have  been  in  possession  of  and  have  operated  said  railroad 
until  the  twenty-fourth  day  oi  August,  i889. 

V.  They  deny  that  they  did  in  or  about  the  month  ai  July,  i889, 
organize  a  new  corporation  under  the  laws  of  the  state  of  Ketitucky, 
naming  it  the  Ohio  and  Big  Sandy  Railroad  Company,  and  making  its 
capital  stock  tiuo  million  dollars,  divided  into  shares  of  one  hundred 
dollars  each,  and  defendants  aver  that  they  did  begin  to  organize 
such  company  m  July,  i889,  and  that  said  organization  was  never 
completed,  and  was  discontinued  before  completion,  but  they  aver 
that  since  that  time  they  have  organized  a  corporation  under  that 
name  with  the  same  nominal  but  not  actual  amount  of  capital  stock. 

VI.  They  deny  that  in  and  by  the  terms  of  the  trust  agreement 
alleged  in  said  complaint  to  have  been  made  between  these  defend- 
ants and  the  owners  of  said  ^^ Sinking  Fund"  and  "  Gold  Mortgage" 
bonds  it  was  the  duty  of  the  defendants,  having  turned  the  franchise 
and  property  of  said  Chattaroi  Railway  Company  over  to  said  new 
corporation  or  any  new  corporation  by  adequate  deed  of  conveyance; 
to  then  divide  the  capital  stock  of  the  said  new  corporation  or  any 
new  corporation  pro  rata  among  said  bondholders.  They  deny  that 
they  entered  into  an  agreement  outside  of  said  trust  agreement  and 
hostile  thereto,  but  beneficial  to  themselves  personally  with  one  Collis 
F.  Huntington  whereby  they  agreed,  in  consideration  oi  fifty- six  thou- 
sand dollars  or  thereabouts  to  be  paid  to  them  by  said  Huntington,  to 
obtain  for  the  said  Huntington  a  majority  in  value  of  the  said  bonds 
for  the  cash  price  oi  fifty  per  cent,  of  the  par  value  thereof  to  be 
paid  by  the  said  Huntington  and  thereupon  to  turn  the  said  new  cor- 
poration over  to  said  Huntington,  whereupon,  according  to  the  terms 
of  the  said  alleged  agreement  which  they  are  alleged  to  have  so  made 
with  the  said  Huntington  without  authority,  stock  of  the  said  new 
corporation  of  the  par  value  of  nine  hundred  and  ninety-four  thousand 
dollars  only  is  to  be  distributed  pro  rata  among  the  said  bondholders 
instead  of  tu>o  million  dollars  of  the  stock  of  the  new  corporation,  and 
they  deny  that  said  trust  agreement  provides  that  said  two  million 

651  Volume  5, 


6421.  CORPORATIONS.  6421. 

dollars  of  stock  shall  be  so  distributed,  and  they  deny  that  they  have 
entered  into  the  said  agreement  or  any  agreement  with  said  Hunt- 
ington whereby  they  have  combined  with  him  and  have  designed  and 
concluded  to  so  distribute  stock  of  the  said  new  corporation  or  to 
any  new  corporation  of  the  par  value  of  7iine  hundred  and  7iinety-f our 
thousand  dollars  instead  of  the  entire  stock  of  the  said  new  corpora- 
tion for  the  purpose  of  wronging  the  said  bondholders  and  depreciat- 
ing the  value  of  their  said  bonds  and  compelling  them  to  part  with 
the  same  zX.  fifty  per  cent,  of  the  par  value  thereof  sooner  than  to 
enter  into  a  litigation  with  them  and  the  said  Huntington  and  his 
associates. 

VII.  They  deny  that  they  are  now  about  to  carry  out  said  alleged 
agreement  with  said  Huntington  and  the  organization  thereof  and 
the  distribution  of  the  said  stock  thereof  to  the  said  bondholders 
and  are  about  to  convey  the  franchise  and  the  property  of  the  said 
Chattaroi  Railxvay  Company  to  be  disposed  of  as  aforesaid  and  not  in 
accordance  with  said  alleged  trust  agreement,  and  they  deny  that  in 
pursuance  of  the  alleged  so-called  agreement  the  stock  of  the  said 
new  corporation  of  the  par  value  of  nine  hundred  and  ninety-four  thou- 
sand dollars  only  is  to  be  distributed  among  said  bondholders,  and 
they  deny  that  said  plaintiff  will  thereby  or  in  any  way  be  wronged 
and  will  not  receive  the  benefit  of  the  said  trust  agreement  and  will 
not  obtain  the  stock  which  he  is  entitled  to  thereunder. 

VIII.  They  deny  that  they  claim  and  pretend  that  the  szxd  fifty- six 
thousand  dollars,  which  it  is  alleged  in  the  said  complaint  is  to  be  paid 
by  said  Huntington  in  cash  to  them,  is  to  be  their  individual  property, 
and  they  deny  that  they  intend  to  distribute  the  same  among  them- 
selves or  that  they  allege  that  that  amount  is  due  to  them  for  money 
disbursed  by  them  in  the  management  and  running  of  the  Chattaroi 
Railway  Company  after  they  became  the  owners  of  the  same  as  joint 
tenants  in  trust,  and  they  deny  that  no  sum  is  due  to  them,  and  they 
deny  that  they  ever  owned  and  operated  the  said  Chattaroi  Railway 
Company,  as  trustees  or  otherwise,  from  May,  i887,  to  /u/y,  iS89,  or 
at  any  other  time,  and  they  deny  that  they  ever  received  large  sums 
of  money  or  any  sums  of  money  the  earnings  of  said  company,  and 
they  deny  that  they  still  hold  or  ever  held  any  of  the  earnings  of  said 
company.  They  admit  that  they  never  accounted  for  said  earnings, 
for  they  never  received  them.  They  deny  that  they  are  about  to 
turn  the  said  franchise  and  property  over  as  aforesaid  without  ren- 
dering any  account  or  that  they  intend  to  retain  unaccounted  for  all 
of  the  said  alleged  earnings,  and  they  deny  that  if  they  render  a  just 
and  true  account  of  the  money  so  received  by  them  and  are  allowed 
all  legal  expenses  it  will  be  found  that  they  have  in  their  hands  a 
large  sum  in  excess  of  all  legal  expenses,  and  they  deny  that  instead 
of  the  said  company  or  the  said  bondholders  being  in  any  way  in- 
debted to  them  they  have  in  their  hands  money  for  which  they  are 
justly  accountable  to  the  said  bondholders. 

IX.  They  aver  that  the  only  trust  agreement  with  owners  of  bonds 
issued  by  the  said  Chattaroi  Railway  Company  into  which  the  defend- 
ants have  entered  is  that  set  forth  in  a  certain  agreement  dated 
February  15,  iS89,  a  copy  of  which   is    hereunto    annexed,  marked 

653  Volume  5. 


6421. 


CORPORA  TIONS. 


6421. 


Schedule  A^"^  and  made  a  part  of  this  answer, 

X.  They  deny  all  allegations  of  the  complaint  in  respect  to  the 
contents,  purport  or  effect  of  said  trust  agreement  except  as  by  refer- 
ence to  said  schedule  they  may.  be  found  correct  and  true. 


1.  Schedule  A,  containing  a  copy  of  the 
trust  agreement  referred  to  in  the  text, 
was  as  follows: 

"This  Trust  Agreement,  made  and 
entered  into  ihxs  /i/teenth  day  of  Febru- 
ary, A.  D.  i8<$y,  between  the  holders  of 
the  '  Sinking  Fund'  and  '  Gold  Mort- 
gage '  bonds  of  the  Chattaroi  Raihvay 
Company  (secured  by  mortgages  of  said 
Company  respectively  bearing  date 
August,  I2th,  i8<5b,  and  March  ist,  i8fe), 
first  party,  and  George  C.  Wood,  of  Brook- 
lyn, New  York;  Samuel  D.  Davis,  of 
Lakewood,  A'e^v  Jersey;  Jerry  Collins,  of 
Glens  Falls,  New  York;  and  Anson  Malt- 
by,  of  New  York,  second  party,  wit- 
nesseth: 

First.  Each  holder  of  any  of  the  said 
bonds  who  shall  deposit  them  with  the 
Union  Trust  Company  of  New  York, 
under  this  trust  agreement,  agrees  for 
himself  and  not  for  the  others,  but  to 
and  with  the  other,  and  with  the  second 
party. 

Second.  Each  bondholder  of  '  Sinking 
Fund'  and  '  Gold  Mortgage'  bonds  shall 
deposit  his  bonds  with  the  Union  Trust 
Company  of  New  York,  and  shall  in 
place  of  said  bonds  receive  from  said 
Trust  Company  its  receipt  as  set  forth 
in  '  Schedule  a  '  hereto  annexed.  Such 
receipts  shall  be  transferable  by  indorse- 
ment and  delivery,  and  when  issued  to 
a  depositor  hereunder,  shall  be  deemed  a 
part  of  this  agreement,  and  its  terms 
shall,  in  connection  herewith,  control 
the  parties  hereto. 

Third.  The  stock  and  'Income  Bonds' 
of  the  Chattaroi  Railway  Company  be- 
longing to  depositors  [hereunder]  of 
'Sinking  Fund'  and  'Gold  Mortgage' 
bonds  shall  be  deposited  with  said 
Trust  Company,  for  which  said  Trust 
Company  shall  give  a  certificate  of  de- 
posit as  set  forth  in  'Schedule/^'  hereto 
annexed,  and  shall  be  subject  to  the 
control  of  the  second  party,  and  shall  be 
delivered  to  the  Charleston,  Cincinnati 
and  Chicago  Railroad  Company,  or  to 
any  company  or  persons  to  whom  the 
second  party  shall  sell  said  property,  as 
hereinafter  provided,  or  to  any  new 
company  organized  by  them,  as  herein- 
after provided,  and  by  such  transfer, 
all  rights  as  owners  of  such  bonds  and 
stock  shall  become  the  rights  of  such 
transferee. 


Fourth.  In  this  instrument  the  word 
'  receipt '  refers  to  receipts  of  '  Sinking 
Fund'  and  '  Gold  Afortgage'  bonds  as 
set  forth  in  '  Schedule  a,'  and  the  words 
'  Certificate  of  Deposit '  refer  to  certifi- 
cates of  deposit  of  '  Income  Bonds '  and 
capital  stock  asset  forth  in  '  Schedule  i>.' 

Fifth.  Second  party,  their  survivors 
and  survivor,  shall  have  power  to  fill 
any  vacancy  or  vacancies,  which  may 
exist  in  their  number. 

Sixth.  Second  party  shall  be  and 
constitute  a  purchasing  committee. 
At  any  sale  of  the  property  covered  by 
the  mortgage  aforesaid,  which  may  be 
made  pursuant  to  any  decree  in  the 
foreclosure  .  proceedings  now  pending 
in  the  Circuit  Court  or  Circuit  Courts 
of  the  United  States,  second  party 
shall  have  and  is  hereby  given  full 
power  and  authority  to  purchase  all  and 
singular  the  property  covered  by  said 
mortgages  in  their  own  names  as  joint 
tenants,  and  not  as  tenants  in  common, 
but  for  and  behalf  of  the  first  party 
hereto,  and  at  a  price  within  their  dis- 
cretion. Second  party  shall  have 
power  and  authority  to  appropriate 
and  use  the  bonds  deposited  with  said 
Trust  Company  under  this  agreement 
in  payment  for  the  purchase  price  for 
said  property,  so  far  as  the  same  can 
be  used,  and  said  Trust  Company  is 
hereby  instructed  to  hold  said  bonds 
to  the  order  and  direction  of  second 
party  for  such  purpose,  and  the  pur- 
poses hereinafter  mentioned,  and  to 
deliver  said  bonds  to  second  party  upon 
their  written  request,  or  otherwise  dis- 
pose of  said  bonds  as  second  party  may 
direct,  in  order  to  apply  the  same  bonds 
in  payment  of  such  purchase  price.  Sec- 
ond party  may  designate  any  one  or 
more  of  its  members,  or  any  other  per- 
son or  persons,  to  attend  the  said  sale 
and  bid  off  the  property,  and  may  gen- 
erally employ  such  agents  or  attorneys 
or  counsel  as  second  party  shall  find 
necessary  and  proper. 

Seventh.  Second  party  shall  have 
power  to  borrow  such  money  as  may 
be  necessary  to  the  carrying  out  of 
this  agreement,  and  security  for  pay- 
ment of  such  money,  to  pledge  the 
bonds  deposited  hereunder,  and  to 
mortgage  and  give  a  lien  on  the  prop- 
erty   purchased   by   them    hereunder; 


653 


Volume  5. 


6421. 


CORPORATIONS. 


6421. 


XI.  They  aver  that  during  the  month  of  August^  iS80,  before  the 
service  of  the  summons  in  this  action,  they  organized  the  0/iw  and 


and  to  contract  for  the  extension  of  the 
time  of  repayment  of  such  loans  from 
time  to  time. 

Eighth.  In  case  said  party  shall  pur- 
chase said  property,  as  aforesaid,  sec- 
ond party  shall  take,  hold  and  operate 
the  same  until  they  shall  sell  the  same, 
or  until  a  new  company  shall  be 
formed  to  hold  and  operate  the  same, 
if  it,  at  any  time,  becomes  necessary  so 
to  do  to  carry  out  the  purposes  hereof. 

Ninth.  At  any  time  within  six 
months  from  the  date  when  said  second 
party  shall  obtain  possession  of  said 
road  and  property,  they  shall  have 
power  in  accordance  with  the  proposi- 
tion of  the  Massachusetts  and  Southern 
Construction  Company,  dated  October 
26th,  i86'<5,  and  assented  to  by  the  first 
parties  hereto,  to  sell  such  property 
and  road  unto  the  Charleston,  Cincinnati 
and  Chicago  Railroad  Company,  or  [on 
their  failure  to  purchase]  to  any  cor- 
poration, or  person,  for  a  cash  sum, 
which  shall  equal  seventy-two  per  cent, 
of  the  par  value  of  the  outstanding 
'  Sinking  Fund'  and  '  Gold  Mortgage' 
bonds  of  said  Chattaroi  Railway  Com- 
pany, with  interest  at  six  per  cent,  on 
the  par  Value  of  such  outstanding 
bonds  from  January  ist,  liSy,  and  the 
legitimate  foreclosure  expenses,  and 
the  legitimate  floating  debt. 

Tenth.  The  purchase  money  for 
which  said  second  party  shall  sell  said 
property,  shall  be  paid  to  said  Trust 
Com  patty. 

Eleventh.  After  the  second  party 
shall  have  deducted  or  been  reimbursed 
the  expenses  of  carrying  out  this 
agreement,  the  sum  remaining  shall 
be  divided  among  and  paid  to  the 
holders  of  the  receipts  issued  here- 
under, in  proportion  to  the  number  of 
bonds  deposited  for  which  the  receipts 
were  issued,  upon  the  surrender  to 
said    Trust   Company  of  such  receipts. 

Twelfth.  Should  said  second  party 
at  any  time  deem  it  necessary,  in  order 
more  fully  to  protect  the  rights  of  the 
persons  composing  the  first  party 
hereto,  to  form  a  company  to  take  pos- 
session and  operate  said  property  and 
railroad  under  the  present  franchise  or 
a  new  charter,  they  are  hereby  fully 
empowered  to  form  such  company. 
The  stock  of  such  company  shall  be 
issued  to  and  divided  among  the  hold- 
ers of  the  receipts  issued  by  the  said 


Trust  Company  hereunder,  in  propor- 
tion to  the  number  of  bonds  deposited 
for  which  the  receipts  were  issued, 
upon  the  surrender  to  said  Trust  Com- 
pany of  such  receipts. 

Thirteenth.  Second  party  shall  be 
invested  with  full  power  and  authority 
to  carry  out  the  purposes  of  this  trust 
agreement,  to  make  and  execute  all 
such  instruments  as  they  deem  neces- 
sary hereunder,  and  generally  to  do 
all  acts  and  things  necessary  and 
proper  in  their  judgment  to  execute 
the  provisions  of  the  agreement,  and 
shall  be  entitled  to  a  reasonable  com- 
pensation   for    their  services. 

And  in  all  cases  second  party  shall 
be  authorized  to  pay  such  reason- 
able compensation  as  they  may  deem 
proper  to  all  counsel,  servants  and 
agents  whom  they  may  reasonably  em- 
ploy in  carrying  out  the  purposes  of 
this  agreement;  shall  have  full  power 
and  authority  to  make  due  provisions, 
in  their  discretion,  in  case  of  any  de- 
fect of  their  express  powers  hereunder, 
and  shall  nevertheless  proceed  to  carry 
out  the  true  intent,  meaning  and  pur- 
pose of  this  agreement  by  conforming 
as  near  as  may  be  to  the  provisions 
thereof.  And  they  may  assist  in  the 
prosecution  of,  or  become  parties  to, 
all  suits  now  pending  or  hereafter  to 
be  brought,  or  commence  and  prosecute 
all  such  other  suits  or  proceedings  as 
they  may  deem  necessary  in  the  prem- 
ises. 

Fourteenth.  Second  party  shall  act 
by  a  majority  of  their  number,  either 
at  regular  or  special  meetings  or  by 
writing  signed  by  such  majority  with- 
out a  meeting  as  they  shall  determine 
from  time  to  time.  They  shall  deter- 
mine all  questions  that  may  arise  con- 
cerning the  construction  and  effect  of 
any  provision  of  this  agreement,  which 
determination  shall  be  final  and  con- 
clusive in  every  case. 

Fifteenth.  The  several  members  of 
the  second  party  shall  not  be  person- 
ally responsible  for  the  acts  or  omis- 
sions of  their  associates,  nor  for  those 
of  their  agents,  servants  and  employees 
employed  by  the  second  party  as  such 
committee. 

Sixteenth.  By  the  acceptance  of  the 
receipts  hereinbefore  referred  to,  the 
parties  of  the  first  part,  respectively 
depositing  their  bonds   with  the   said 


654 


Volume  5. 


6421.  CORPORATIONS.  6421. 

Big  Sandy  Railroad  Company  under,  by  virtue  of,  and  in  accordance 
with  the  acts  of  the  general  assembly  of  the  commonwealth  of  Ken- 
tucky entitled  {title  of  acts  and  dates  of  approval)}- 

XIa.  They  aver  that  said  act  entitled  "  An  Act  to  incorporate  the 
purchasers  of  railroads  "  provides  as  follows:  {Here  was  set  out  pro- 
visions of  act.y^ 

Xlb.  Chapter  56  of  General  Statutes  requires  that  in  incorporat- 
ing companies  under  said  chapter  the  amount  of  capital ^tock  author- 
ized and  the  times  when  and  the  conditions  upon  which  it  is  to  be 
paid  in  shall  be  provided  for. 

XI^.  They  aver  that  said  act  entitled  "  An  Act  to  incorporate  the 
Chattaroi  Railway  Company  "  provides  that  the  capital  stock  of  the 
said  Chattaroi  Railway  Company  shall  het^vo  million  of  dollars  divided 
into  shares  of  one  hundred  dollars  each,  and  that  it  may  at  any  time 
be  increased  by  a  vote  of  the  majority  of  the  stockholders  to  any 
sum  necessary  for  the  completion  and  equipment  of  said  railway,  not 
exceeding  ten  million  dollars,  and  said  act  provides  further  that  said 
stock  shall  be  paid  for  in  money,  work,  property,  material,  or  in  such 
kind  and  manner  as  may  be  agreed  upon. 

XI</.  They  aver  on  information  and  belief  that  the  original  cost 
of  the  construction  of  the  said  railroad  of  the  said  Chattaroi  Railway 
Company  and  of  the  equipment  purchased  for  use  on  said  railroad  was 
not  exceeding  twelve  hundred  and  fifty  thousand  doWaTS  (^1,250,000), 
and  said  railroad  is  not  half  completed. 

XII.  That  in   order  to  comply  with  the  terms  of  said  act  entitled 

Trust  Company,  become  parties  to  this  approved  April  22,  1873,   under  which 

ajjreement   with   the   same   force    and  latter   act   chapter   56   of   the  General 

effect  as  if  they  had  severally  affixed  Statutes  of  the  Commonwealth  of  Ken- 

their  signatures  and  seals  at  the  foot  tucky  was  enacted. 

of  this  instrument.  2.  The  act  referred  t9  in  the  text  pro- 
Seventeenth.  Holders  of  bonds  and  vided  as  follows: 
stocks  not  depositing  the  same  hereun-  "That  whenever  a  railroad  hereafter 
der  within  a  period  of  sixteen  days  may  be  sold  under  and  in  pursuance  of 
(which  may  be  extended  at  discretion  a  decree  or  judgment  of  a  Court  of 
bv  second  party)  shall  be  deemed  Equity  or  other  court  having  jurisdic- 
nonassenting  bondholders,  and  shall  tion,  the  purchasers  thereof  or  their  as- 
not  be  entitled  to  any  benefit  here-  signs,  together  with  such  persons  as 
under.  may  be  associated  with  them,  shall  be 
Eighteenth.  The  several  persons  authorized  to  become  a  body  politic  and 
composing  the  second  party  hereby  corporate  for  the  purpose  of  operating 
accept  the  trusts  imposed  upon  them  and  completing  said  railroad  and  shall 
by  this  agreement,  be  entitled  to  exercise  all  the  franchises. 
In  witness  whereof  the  parties  hereto  powers,  rights  and  privileges,  and  shall 
set  their  hands  and  seals  the  day  and  be  subject  to  all  limitations,  restrictions 
year  first  aforesaid."  {Signatures  and  and  liabilities  contained  in  the  charter 
seats.)  granted  by  the  General  Assembly  of 
{Schedules  a  and  b  attached.)  the  Commonwealth  of  Kentucky,  under 
1.  The  titles  of  the  acts  referred  to  in  the  which  said  railroad  was  constructed  and 
text  were  "  An  Act  to  incorporate  the  operated  as  they  existed  at  the  time  of 
Chatteroi  Railway  Company,"  approved  such  sale.  The  mode  bj'  which  said 
March  11,  1873;  "An  Act  to  amend  purchasers  or  their  assigns  and  asso- 
the  charter  of  the  Chattaroi  Railway  ciates  as  above  mentioned  shall  become 
Company,"  approved  February  23,  1882;  incorporated  shall  be  as  prescribed  in 
"  An  Act  to  incorporate  the  purchases  Chapter  56  of  the  General  Statutes," 
of  railroads,"  approved  March  i,  1876;  etc. 
"An  Act  to  adopt  the  general  statutes," 

655  Volume  5. 


642 1 .  CORPORA  TIONS.  642 1 . 

"An  Act  to  incorporate  the  Chattaroi  Railway  Company"  the 
defendants,  in  the  articles  of  incorporation  of  the  Ohio  and  Big  Sandy 
Railroad  Company  as  finally  organized  by  them,  fixed  the  nominal 
amount  of  the  capital  stock  of  the  said  company  at  two  million  dollars, 
and  further  provided  in  said  articles  that  "  Nine  hundred  and  ?iinety- 
f our  thou safid  doWdiVs  of  said  capital  stock  is  to  be  delivered  to  the 
purchasing  and  reorganization  committee  above  mentioned  (mean- 
ing these  defendants),  in  part  payment  for  the  property  purchased 
by  said  committee  at  the  sale  above  mentioned  "  (meaning  the  prop- 
erty formerly  of  the  Chattaroi  Railway  Compatiy  held  by  these  defend- 
ants under  said  trust  agreement  of  February  15,  i857),  and  also  that 
"The  balance  of  the  said  capital  stock  may  be  disposed  of  from  time 
to  time  by  the  board  of  directors  at  its  discretion,  and  is  to  be  paid 
in  from  time  to  time  upon  calls  by  the  board  of  directors." 

XIII.  They  aver  that  by  such  provisions  these  defendants  intended 
that  the  actual  capital  stock  should  be  but  \%99^,000'\  nine  hundred 
and  ninety-four  thousand  doWdLTS,  and  that  the  whole  thereof  should  be 
delivered  in  payment  for  the  transfer  of  said  property,  and  should 
be  distributed  in  accordance  with  the  terms  of  said  trust  agreement. 
And  that  thereafter,  when  in  the  proper  administration  of  the  affairs 
of  said  railroad  company  it  should  be  deemed  necessary,  the  remain- 
der or  any  part  of  the  nominal  capital  of  two  million  dollars  should 
be  issued  in  a  lawful  manner  for  a  distinct,  valuable  and  proper  con- 
sideration. 

XIV.  They  aver  that  the  foregoing  is  the  true  and  proper  con- 
struction of  said  articles  of  incorporation,  and  that  such  intent  and 
the  acts  of  these  defendants  in  the  premises  have  been  in  strict  fulfil- 
ment of  said  trust  agreement  and  of  said  acts  of  said  assembly. 

XV.  They  aver  that  on  or  about  the  twenty-fourth  day  of  August, 
iS89,  they  conveyed  all  the  property  formerly  of  the  Chattaroi  Rathv ay 
Company,  or  acquired  by  them  as  trustees,  and  held  under  said  trust 
agreement  to  said  Ohio  and  Big  Sandy  Railroad  Company,  in  consider- 
ation of  said  nine  hundred  and  ninety-four  thousand  dollars  of  capital 
stock  and  of  a  promissory  note  of  said  railroad  company  for  \^6,800'\ 
fifty-six  thousand  eight  hundred  dollars  payable  on  demand  to  the  order 
of  George  C  Wood,  one  of  these  defendants,  as  chairman  of  said 
purchasing  committee. 

XVI.  They  aver  that  accordingly  said  nine  hundred  and  ninety- four 
thousand  dioWzxi,  of  capital  stock,  and  that  amount  only,  has  been  issued 
for  delivery  according  to  the  provisions  of  said  trust  agreement,  and 
of  that  amount  two  hundred  and  seventy  shares,  at  the  par  value  of 
twenty-seven  thousand  dollars,  are  ready  for  delivery  in  exchange  for 
the  trust  receipts  of  the  Union  Trust  Company  of  New  York,  given 
for  the  twenty-seven  bonds  of  the  Chattaroi  Railway  Company  deposited 
as  alleged  in  the  complaint  on  compliance  by  the  owner  thereof  with 
said  trust  agreement. 

XVII.  They  aver  that  the  amount  of  said  promissory  note  was 
fixed  by  these  defendants  as  an  estimate  to  cover  as  nearly  as  possi- 
ble sums  of  money  borrowed  and  liabilities  incurred  by  them  in  pur- 
suance of  their  duties  as  such  purchasing  committee  under  said  trust 
agreement,  and  such  promissory  note  was  made  and  given  to  these 

656  Volume  5. 


6421.  CORPORATIONS.  6421. 

defendants  by  said  railroad  company  upon  condition  that  after  col- 
lection thereof  any  part  of  the  said  sum  of  fifty-six  thousand  eight 
hundred  dollars  not  justly  and  properly  payable  by  said  defendants 
as  such  committee  should  be  returned  to  said  railroad  company. 

XVIII.  They  aver  that  apart  from  said  promissory  note  and  said 
shares  of  capital  stock  they  have  no  property  of  themselves  as  said 
purchasing  committee,  or  of  said  Chattaroi  Railway  C<impany  or  of 
any  owner  of  said  trust  receipts  or  bonds  in  their  possession  or 
under  their  control;  that  they  nor  any  of  them  have  ever  individu- 
ally received  any  money  or  property,  the  earnings  of  said  railroad, 
during  their  whole  term  of  office  as  such  committee,  whether  as  com- 
mission or  compensation  for  their  services  as  trustees  or  otherwise, 
but  that  all  moneys  and  property  received  during  their  said  term  of 
office,  in  the  operation  or  on  account  of  said  railroad,  were  received, 
held  and  expended  by  the  officers  and  agents  of  these  defendants, 
except  money  borrowed  by  these  defendants,  and  all  of  it  paid  out 
by  them  for  the  purposes  of  purchasing  and  operating  said  railroad 
and  paying  the  small  expenses  of  said  purchasing  committee.  That 
all  property  and  account  books  used  in  operating  said  railroad  by 
these  defendants  and  all  accounts  and  property  of  these  defend- 
ants as  such  committee  were  delivered  to  said  railroad  company  on 
the  twenty -fourth  day  of  August,  iS89,  and  are  still  held  by  said 
company. 

XIX.  They  deny  that  they  have  received  and  still  retain  or  that  they 
hold  control  or  are  to  receive  from  any  person  or  source  whatever 
any  sum  of  money  or  property  to  which  the  plaintiff  is  or  has  ever 
been  entitled  as  the  alleged  or  real  owner  of  said  twenty-sei^en  bonds 
or  of  the  receipts  of  the  said  Union  Trust  Company  for  the  deposit 
thereof  under  said  trust  agreement,  and  they  deny  that  any  account- 
ing whatsoever  will  show  that  they  have  or  are  to  have  in  their  hands 
or  under  their  control  any  sum  whatever,  whether  in  excess  of  all 
legal  expenses  or  otherwise,  or  that  they  have  or  are  to  have  in  their 
hands  or  under  their  control  money  for  which  they  are  in  any  way 
accountable  to  any  holder  of  any  of  said  bonds  or  trust  receipts  or 
to  this  plaintiff. 

XX.  They  aver  on  information  and  belief  that  the  owners  of 
trust  receipts  for  nine  hundred  and  sixty-sei^en  bonds  of  the  total  nine 
hundred  and  fiinety- four  bonds  deposited  under  said  trust  agreement 
dated  February  15,  iS87,  have  ratified  and  approved  all  of  the  vari- 
ous acts  aforesaid  of  these  defendants  in  reorganizing  said  railroad 
company  and  conveying  said  property  to  said  Ohio  and  Big  Sandy 
Railroad  Company,  and  especially  in  the  issuing  and  distributing  but 
nine  hundred  and  ninety-four  thousand  dollars  of  capital  stock  to  the 
holders  of  trust  receipts  under  said  trust  agreement,  and  that  the 
owners  of  the  twenty-seven  bonds  or  trust  receipts  therefor,  upon 
which  this  suit  is  based,  are  the  only  owners  of  any  such  bonds  or 
trust  receipts  who  have  not  so  ratified  and  approved  said  acts  of  these 
defendants. 

Wherefore,  the  defendants  demand  judgment  against  the  plaintiff, 
that  this  complaint  herein  be  dismissed  with  costs  of  these  defend- 
ants. 

5  E.  of  F.  p.  — 42.  657  Volume  5. 


6422. 


CORPORA  TIONS. 


6422. 


(Verificaiion.y 


Anson  Maltby,  Attorney  in  Person,  and 
Attorney  for  Defendants  George  C. 
Wood,  Samuel  D.  Davis  and  Jerry 
Collins. 


IV.  DISSOLUTION  — WINDING  Up.* 


1.  Proceeding's  to  Dissolve,  Generally.^ 


1.  Consult  the  title  Verifications. 

2.  Involantary  dissolution  of  a  corpo- 
ration may  be  accomplished  as  pro- 
vided by  statute.  Consult  the  following 
statutory  provisions: 

Alabama.  —  Civ.  Code  (i886),  §  3167 
et  seq. 

Arizona.  —  Rev.  Stat.  (1887),  §  3191 
et  seq. 

Arkansas. — Sand.  &  H.  Dig.  (1894), 
§  7364  et  seq. 

California,  — Code  Civ.  Proc.  (1897), 
§  802  et  seq. 

Colorado.  —  Mills'  Anno.  Code  (1896), 
§  289  et  seq. 

Connecticut.  —  Gen.  Stat.  (1888),  § 
1321  et  seq.\  Laws  (1889),  p.  138,  Laws 
(1893),  p.  263,  Laws  (1895),  pp.  467,  571. 

Georgia.  —  2  Code  (1895),  §  1879  ^^ 
seq. 

Idaho.  —  Rev.  Stat.  (1887),  §  4329. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  lOIl,  ^  25  et  seq. 

Indiana.  —  Horner's  Stat.  (1896),  § 
1 141. 

Iowa,  —  Code  (1897),  §  4313. 

Kansas.  —  I  Gen.  Stat.  (1897),  p.  70O, 
§  45  et  seq. 

Kentucky.  —  Stat.  (1894),  §  569. 

Louisiana.  —  Rev.  Laws  (1897),  §  688. 

Maine.  —  Rev,  Stat.  (1883),  p.  403, 
§  27  et  seq. 

Maryland.  — Pub.  Gen.  Laws  (1888), 
art.  23,  §  264  et  seq. 

Massachusetts.  —  Pub.  Stat.  (1882),  p. 
1075,  §  17  et  seq. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§§  8155,  8165,  8618,  8657;  Pub.  Acts 
(1895),  p.  41  et  seq, 

Minnesota.  —  Stat.  (1894),  §§  359, 
5899,  5962,  5965,  5968  et  seq. 

Mississippi.  —  Anno.  Code  (1892),  g 
3520  ^/  seq, 

Missouri,  —  Rev.  Stat.  (1889),  §  2835. 

Montana.  —  Code  Civ.  Proc.  (1895), 
§  1410  et  seq. 

Nebraska.  —  Comp.  Stat.  (1897),  §§ 
1737,  1846. 

Nevada.  — Q^n.  Stat.  (1885),  g§  3342 
et  seq,,  37II. 


New  Hampshire.  —  Pub.  Stat.  (1891), 
p.  410,  §  22. 

New  Jersey, — Gen.  Stat.  (1895),  p. 
919,  §  70. 

New  York.  —  Birds.  Rev.  Stat.  (1896), 
p.  672,  ij  68  et  seq,,  p.  675,  §  80. 

North  Carolina,  — Code  (1883),  P§ 
604,  694  et  seq. 

North  Dakota.  —  Rev.  Codes  (1895), 
§§  2912,  5762  et  seq. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
5651  et  seq. 

Oklahoma. — Stat.  (1893),  §§  968  et 
^^1-,  5357  et  seq.,  6140. 

Oregon.  —  Hill's  Anno.  Laws  (1892),  § 
354  et  seq. 

Pennsylvania.  —  Bright.  Pur.  Dig, 
(1894),  p.  411,  55  31  et  seq. 

Rhode  Island.  —  Gen.  Laws  (1896),  p. 
536,  §  27  et  seq. 

South  Carolina.  —  Code  Civ.  Proc. 
(1893),  §  424  et  seq. 

South  Dakota.  —  Dak,  Comp.  Laws 
(1887),  §  5345  et  seq, 

Tennessee,  —  Code  (1896),  ^  2054  et  seq, 

Texas, — Rev.  Stat.  (1895),  art.  680  et 
seq, 

Utah,  — Rev.  Stat.  (1898),  §  3623. 

Vermont, — Stat.  (1894),  ^  3741. 

Virginia,  —  Code  (1887),  §  404  et  seq, 

Washington.  —  Ballinger's  Codes  and 
Stat.  (1897),  |5  5780  et  seq. 

West  Virginia.  —  Code  (1891),  p.  510, 
§  57  et  seq. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  l%2^et  seq, 

Wyoming,  —  Rev.  Stat.  (1887),  g  3092 
et  seq. 

See  also  list  of  statutes  cited  supra, 
note  I,  p.  527. 

3.  Action  to  procure  judgment  dissolv- 
ing the  corporation,  and  forfeiting  its 
corporate  rights,  privileges  and  fran- 
chises, may  be  maintained:  i.  Where 
the  corporation  has  remained  insolvent 
for  at  least  one  year.  2.  Where  it  has 
neglected  or  refused  for  at  least  one 
year  to  pay  ofif  and  discharge  its  notes 
and  o^ther  evidences  of  debt.  3.  Where 
it  has  suspended  its  ordinary  and  law- 


658 


Volume  5. 


6422.  CORPORATIONS,  6423. 

a.  Before  Attorney-General.' 

(1)  Notice  of  Motion. 

Form  No.  6422.* 

In  the  matter  of  the  Buffalo  Stone  and  Cement  Company. 

Byron  M.  Schultz :  Please  take  notice  that  on  the  statement  or 
petition,  a  copy  of  which  is  herewith  served  upon  you,  a  motion  will 
be  made  before  the  Hon.  Charles  F.  Tabor,  attorney-general  of  the 
state  of  New  York,  at  the  office  of  Messrs.  Tabor  cr*  Sheehan,  in  the 
Law  Exchange,  corner  of  Niagara  and  Eagle  streets  in  the  city  of 
Buffalo,  county  of  Erie  and  state  of  New  York,  on  the  second  day  of 
March,  iS89,  at  eleven  o'clock  in  the/^rmoon  of  said  day,  that  the 
proper  proceedings  be  taken  by  said  attorney-general  to  dissolve  said 
company. 

Dated  the  twenty-fifth  day  oi  February,  iS89. 

Strong  dr'  Brendell,  Attorneys  for  Petitioners, 
No.  J^l  E.  Seneca  Street,  Buffalo,  N.  Y. 

(2)  Submission  of  Statement  of  Facts. 
{a)  By  Written  Request. 

Form  No.  6423.' 

To  Honorable  Thomas  B.  Hancock,  Attorney-General  of  the  State  of 
New  York  : 
You  are  hereby  requested  to  bring  an  action  against  The  Northern 
Light  Oil  Company,  of  the  city  of  New  York,  Charles  W.  Burton,  and 
others,  trustees  of  said  company,  to  vacate  the  charter  and  annul  the 
existence  of  said  company,  and  for  the  appointment  of  a  receiver  for 
its  assets,  and  for  an  injunction  restraining  the  corporation  and  its 
officers  and  agents  from  exercising  any  of  its  corporate  rights  and 

ful  business  for  at  least  one  year.  4.  court  for  leave  to  commence  such  ac- 
If  it  has  banking  powers,  or  power  to  tion,  and  on  obtaining  leave  may  main- 
make  loans  and  pledges  or  deposits,  or  tain  the  same. 

to  make  insurances,  where  it  becomes  New  York.  —  Code  Civ.  Proc.,§i786, 

insolvent  or  unable  to  pay  its  debts,  or  as  amended  Laws  (1880),  c.  301  (Birds, 

has  violated  any  provision  of  the  act  by  Rev.  Stat.  (1896),  p.  673,  g  69).     See  also 

or  under  which  it  was  incorporated,  or  list   of    statutes    cited   supra,    note    2» 

of  any  other  act  binding  upon  it.  p.  658. 

New  York.  —  Code  Civ.  Proc.,§  1785  2.  This  notice  of  motion  to  dissolve 
(Birds.  Rev.  Stat.  (1896),  p.  672,  §  68).  was  copied  from  the  record  in  the  case 
See  also  list  of  statutes  cited  supra,  of  People  z/.  Buffalo  Stone,  etc.,  Co.,  131 
note  2,  p.  658.  N.  Y.  140.  For  notice  of  motion,  gen- 
It  The  attorney-general,  in  the  name  erally,  consult  the  title  Motions. 
and  in  behalf  of  the  people,  may  main-  3.  This  request  to  the  attorney-general 
tain  the  action,  and  whenever  a  creditor  to  sue  was  based  upon  the  facts  in 
or  stockholder  submits  to  the  attorney-  Swords  z/.  Northern  Light  Oil  Co.,  17 
general  a  written  statement  of  facts,  Abb.  N.  Cas.  (N.  Y.  Supreme  Ct.)  115. 
verified  by  oath,  showing  grounds  for  In  that  case  the  attorney-general  was 
an  action,  and  the  attorney-general  requested  to  commence  an  action  in  the 
omits  for  si.\ty  days  after  the  submis-  name  and  on  behalf  of  the  people  of 
sion  to  commence  the  action,  then,  and  the  state  to  dissolve  said  corporation, 
not  otherwise,  the  creditor  or  stock-  More  than  sixty  days  elapsed,  and  the 
holder  himself  may  apply  to  the  proper  attorney-general  omitted  to  commence 

659  Volume  5. 


6424.  coupon  A  TIONS.  6424. 

franchises.     The  grounds  upon  which  the  action  is  requested  are  as 
follows: 

1.  That  the  said  corporation  is  now,  and  has  been  for  over  a  year 
last  past,  insolvent,  and  has  not  paid  any  of  its  indebtedness  owing 
to  various  persons,  and  has  no  adequate  means  of  liquidating  such 
indebtedness. 

2.  That  the  assets  of  said  company  consist  almost  entirely  of  oil- 
lands,  the  product  from  which  has  been  exhausted  so  that  the  said 
company  is  not  now,  and  has  not  been  for  some  time,  in  the  receipt 
of  any  income  whatsoever, 

3.  That  the  undersigned  are  stockholders  in  said  company,  and 
make  this  request  on  behalf  of  themselves  and  of  all  others  who  are 
interested  in  said  company,  either  as  stockholders  or  creditors,  and 
they  offer  to  furnish  security  satisfactory  to  you  to  indemnify  the 
people  of  the  state  of  JVeta  York  against  costs  in  any  action,  or 
actions,  brought  upon  this  application. 

William  B.  Jay, 
15  Broadway,  New  York,  N".  Y. 
New  York,  April  5,  iS97. 

(^Affidavits,  setting  forth  in  detail  the  facts  should  accompany  this 
request.  )^ 

{b)  By  Petition. 

Form  No.  6424.* 

To  the  Honorable  Charles  F.  Tabor,  Attorney-General  of  the  State 
of  New  York,  Albany,  N.  Y. : 

Sir:  The  undersigned  would  respectfully  represent  that  they  are 
stockholders  in  the  Buffalo  Stone  and  Cement  Company,  a  corporation 
duly  incorporated  and  organized  under  the  laws  of  the  state  of  New 
York,  on  the  eighteenth  day  of  August,  iS85. 

That  its  capital  stock  was  nine  hundred  shares,  of  the  par  value  of 
one  hundred  dollars. 

That  it  was  organized  for  the  purpose  of  carrying  on  the  business 
of  manufacturing  of  building  and  cut  stone,  of  cement  and  gypsum, 
and  the  purchasing  and  improving  real  estate  for  residences  and 
homesteads,  to  be  leased  or  sold  by  said  company. 

That  the  term  of  its  existence  was  to  be  fifty  years. 

That  only  an  average  of  about  seventy-five  per  cent,  of  its  capital 
stock  has  been  paid  in,  and  that  a  number  of  its  largest  stock- 
owners,  seeing  the  great  mismanagement  that  is  taking  place,  to  call 
it  by  no  harsher  term,  refused  to  pay  any  more  assessments. 

That  the  company,  by  reason  of  the  gross  mismanagement,  has 
utterly  failed  to  carry  out  the  purposes  for  which  it  was  organized,  and 

the   action.     N.    Y.    Code  Civ.    Proc,  2.  This  petition  is  copied  &om  the  reo- 

§  1785  f/ j^^.  (Birds.  Rev.  Stat.  (1896),  p.  ord   in    the  case  of    People    v.   Buffalo 

672,    §   68   et  seq.).      See    also    list   of  Stone,  etc.,  Co.,  131  N.  Y.  140. 

statutes  cited  supra,  note  2,  p.  658.  For  formal  parts  of  petitions  of  this 

1.  For  sach  a  statement  of  facts   see  character,  generally,  consult   the    title 

facts  set  out  in  the  petition  given  infra.  Petitions. 
Form  No.  6424. 

660  Volume  5. 


6424.  CORPORA  TJONS.  6424. 

has  never  done  anything  in  the  line  of  the  purposes  for  which  it  was 
organized,  to  any  considerable  extent. 

That  all  that  is  due  upon  said  stock  is  %23,500.00,  less  the  value  of 
one  hundred  and  ten  shares,  which- have  been  forfeited. 

That  the  par  value  of  those  forfeited  shares  is  %1 1,000.00,  which, 
deducted  from  the  $23,500.00,  leaves  for  available  funds  for  carry- 
ing on  the  business  on  the  full  pavment  of  all  the  stock  sold,  of  only 
%1 1,600. 00. 

That  there  are  two  mortgages  on  the  property  of  the  company,  one 
of  $32,140.00,  and  one  of  $20,000.00,  amounting  in  all  to  $52,14.0.00, 
drawing  interest  at  the  rate  of  six  per  cent,  per  annum,  amounting 
to  the  sum  of  $3,128.40  yearly. 

That  in  the  way  the  property  is  now  and  always  has  been  man- 
aged, there  is  no  money  with  which  to  pay  this  interest,  except 
assessments  upon  the  unpaid  capital  stock,  as  the  company  has 
never  done  business  amounting  to  its  expenses. 

That  said  company  has  failed  entirely  to  do  or  perform  any  busi- 
ness whatever  for  more  than  one  year  last  past,  and  during  all  of  said 
period  of  time  said  company  has  suspended  its  ordinary  and  lawful 
business. 

That  the  board  of  directors  have  violated  the  law  in  such  cases 
made  and  provided,  by  accepting  notes  instead  of  money,  for  the 
amount  of  the  assessments  on  the  stock  held  by  certain  of  the  stock- 
holders, especially  from  Mrs.  Mary  Shultz,  wife  of  Byron  M.  Shultz 
who  is  the  nominal  owner  oi  four  hundred  shdiVts,  of  said  stock. 

That  said  board  has  taken  her  note  for  the  sum  of  $2,000.00. 

That  it  has  been  ascertained  by  the  undersigned,  and  is  alleged  as 
a  fact,  that  the  mortgage  of  $32,140.00  owned  by  said  Mary  Shultz 
has  been  hypothecated  to  a  bank  in  this  city  for  the  sum  of  $6,000.00, 
and  that  said  bank  refuses  to  permit  the  sum  of  $2,000.00  to  be 
credited  upon  said  mortgage,  for  said  note,  thus  leaving  the  whole 
amount  of  said  mortgage  a  lien  upon  the  property  of  the  company^ 
without  the  company's  having  the  right  or  power  to  offset  her  said 
note. 

That  said  Byron  M.  Shultz  or  said  Mary  Shultz  have  neither  of 
them  ever  paid  any  money  for  the  shares  of  stock  held  by  them,  or 
either  of  them. 

That  until  said  mortgage  was  hypothecated  all  the  assessments 
against  the  stock  held  by  said  Shultz  or  his  wife  have  been  credited 
upon  said  mortgage. 

That  part  of  the  property  now  owned  by  the  company  was  pur- 
chased of  the  said  Mary  Shultz,  and  the  shares  of  stock  now  held  by 
her  were  taken  and  credited  upon  the  purchase  price,  but  no  money 
was  ever  paid  for  said  stock. 

That  the  undersigned  have  just  ascertained  that  the  acts  of  the 
said  board  of  directors  have  been  illegal  and  not  in  accordance  with 
the  laws  of  this  state  regulating  such  boards,  and  desire  that  said 
company  be  dissolved.  (^Signatures  0/ president,  vice-president,  trustees 
and  stockholders. ") 


(  Verification.)*- 


1.  Consult  the  title  Verifications. 

661  Volume  5. 


6425.  CORPORATIONS.  6426. 

b.  Obtaining  Leave  to  Sue.' 

(1)  Petition. 
(a)  By  Attorney- General, 

Form  No.  6425.^ 

To  the  ^Superior  Court  of  Buffalo]  ? 

The  petition  of  Charles  F.  Tabor  respectfully  shows  that  he  is  the 
attorney-general  of  the  state  of  New  York: 

That  application  has  been  made  to  him  by  Rufus  M.  Choate  and 
others,  stockholders  and  trustees  of  the  Buffalo  Stone  and  Cement  Com- 
pany^ for  the  purpose  of  having  an  action  brought  by  the  attorney- 
general,  in  the  name  of  the  people  of  the  state  of  New  York^  against 
the  above  named  corporation  for  a  dissolution  of  its  charter;  and  a 
hearing  having  been  had  on  the  part  of  said  petitioners  and  the  other 
stockholders  and  officers,  opposed,  and  the  attorney-general  having 
determined  that  he  believed  that  an  action  could  be  successfully 
maintained  against  said  corporation,  and  the  said  petitioners  having 
furnished  the  security  required  by  law;  application  is  hereby  made  for 
leave  to  bring  an  action  upon  the  grounds  and  for  the  reasons  stated 
in  the  annexed  complaint,  against  the  said  corporation,  reference 
being  thereto  had. 

Your  petitioner  further  shows  that  he  has  read  the  annexed  com- 
plaint and  believes  that  an  action  can  be  successfully  maintained  in 
behalf  of  the  people  for  the  reasons  stated  therein. 

Chas.  F.  Tabor,  Attorney-General. 

(  Verification^'^ 

(^)  By  Stockholder. 

Form  No.  6426.* 

In  the  matter  of  the  application  of  Thomas  Swords^ 
for  leave  to  commence  an  action  to  procure  a 
judgment  dissolving  the  Northern  Light  Oil  Com- 
pany, a  corporation. 

To  the  Supreme  Court,  New  York  County: 

Petitioner    Thomas   Swords,    appearing    by   William   B.  Jay,    his 

attorney,  by  this  his  petition  respectfully  shows: 

1.  New   York.  —  Code   Civ.    Proc,  §  For  formal  parts  of  petitions  of  this 
1786,   as   amended  Laws  (1880),    c.    301  character  consult  the  title  Petitions. 
(Birds.  Rev.  Stat.  (1896),  p.  672,  §  69).  3.  The  superior  court  of   Buffalo   has 
See   also   list   of  statutes  cited   supra,  been  abolished  and  the  jurisdiction  for- 
note  2,  p.  658.  merly  vested   in   it   transferred   to  the 

2.  This  petition  for  leave  to  bring  action  supreme  court.  N.  Y.  Const.  (1895), 
against  a  corporation  for  a  dissolution  art.  6,  §  5. 

of  its  charter  is  copied  from  the  record  4.  See  the  title  Verifications. 
in  the  case  of  People  v.  Buffalo  Stone,  5.  This  petition  of  a  stockholder  for 
etc.,  Co.,  131  N.  Y.  140.  The  court  of  leave  to  commence  an  action  for  disso- 
appeals  affirmed  the  judgment  in  favor  lution  of  the  corporation  is  based  upon 
of  the  plaintiff  rendered  at  the  general  the  facts  in  Swords  v.  Northern  Light 
term  of  the  superior  court  of  Buffalo,  Oil  Co.,  17  Abb.  N.  Cas.  (N.  Y.  Supreme 
affirming  the  decision  of  the  special  Ct.)  115.  In  that  case  the  attorney- 
term  of  said  court.  general   was    requested  to   bring  suit. 

663  Volume  5. 


6427.  CORPORATIONS.  6427. 

I.  That  the  Northern  Light  Oil  Company  is  a  domestic  corporation 
duly  organized,  formed  and  existing  under  and  by  virtue  of  the  laws 
of  the  state  oiNew  York^  having  its  principal  business  office  in  the 
city  oi  New  K?/-^,  state  aforesaid. 

II.  That  petitioner  is  now,  and  ever  since  the  tenth  day  of  May, 
iS9J,  has  been,  a  stockholder  in  the  said  jV^r///^r«  Light  Oil  Company. 

III.  That  on  the  eighth  day  oi  April,  iS97,  in  pursuance  to  section 
1786  of  the  Code  of  Civil  Procedure  of  the  state  of  New  York,  as 
amended  by  the  Laws  of  1880,  chapter  301,  your  petitioner  duly  applied 
to  the  attorney-general  of  New  York,  by  submitting  to  him  a  written 
statement  of  the  facts,  verified  by  oath,  reciting  in  substance  all  the 
matters  and  things  proper  to  be  alleged,  showing  grounds  for  an 
action  against  said  corporation,  under  the  provisions  of  section  1 785  of 
the  Code  of  Civil  Procedure  of  the  state  of  New  York,  a  copy  of  which 
said  application  is  hereto  annexed  and  made  a  part  of  this  petition, 
requesting  the  said  attorney-general  to  commence  an  action  in  the 
name  and  behalf  of  the  people  of  the  state  of  New  York  to  dissolve 
said  corporation.  That  more  than  sixty  days  have  elapsed  since  such 
application  was  made,  and  the  attorney-general  has  omitted  for  sixty 
days  after  the  written  statement  of  facts,  verified  by  oath,  was  sub- 
mitted to  him  as  aforesaid  to  commence  an  action  or  proceeding  to 
dissolve  said  corporation,  or  any  action  specified  in  said  section  1785 
of  Code  of  Civil  Procedure  of  the  state  of  New  York,  and  that  there- 
fore plaintiff,  as  a  stockholder  as  aforesaid,  now  has  the  right  to 
bring  an  action  in  his  own  name,  such  as  is  by  said  sections  1785  and 
1786  of  the  Code  of  Civil  Procedure  of  the  state  of  New  York 
provided. 

Wherefore,  your  petitioner  asks  for  leave  to  commence  an  action 
in  his  own  name  to  procure  a  judgment  dissolving  said  corporation 
upon  the  grounds  and  for  the  purposes  indicated  in  the  said  appli- 
cation to  the  attorney-general,  so  made  as  aforesaid  and  hereto 
annexed. 

Thomas  Swords. 

(  Verification .  )i 

(2)  Order  Granting  Leave. 
{a)   To  Attorney-General. 

Form  No.  6427.' 

[At  a  Special  Term  of  the  Superior  Court  of  Buffalo,  held  at  the 
City  and  County  Hall,  in  the  city  of  Buffalo,  New  York,  on  the 
twenty-third  day  of  April,  i889. 

Having  omitted   to  do   so  after  sixty        2.  This  order  g^nting  leave  to  the  at- 

days,    a  stockholder    asked    leave    to  torney-general  to  bring  suit  to  dissolve 

prosecute    the  proceeding  in   his  own  a  corporation  is  copied  from  the  record 

name.  in  the  case  of  People  v.  Buffalo  Stone, 

For  formal  parts  of  petitions  of  this  etc.,  Co.,  131  N.  Y.  140. 
character  consult  the  title  Petitions.  For  formal  parts  of  orders,  generally, 

1.  Consult  the  title  Verifications.  consult  the  title  Orders. 

668  Volume  5. 


6428.  CORPORATIONS.  6428. 

Present:  Hon.  Edward  W.  Hatch^  Judge  Presiding. ]i 
In  the  matter  of  the  petition  of  the^ 

Attorney-General  of  the  State  of 

New  York  for  leave  to  bring  an 

action  against  the  Buffalo  Stone 

and  Cement  Company  to  dissolve 

its  charter. 

On  reading  and  filing  the  petition  of  Charles  F.  Tabor.,  attorney- 
general  of  the  state  of  New  York,  verified  on  the  tenth  day  of  April, 
i889,  and  the  order  to  show  cause  granted  thereon,  and  the  affidavits 
of  B.  Shultz,  C.  E.  Almendinger  and  William  Casterton,  and  after  hear- 
ing Henry  IV.  Brendel,  of  counsel  for  the  people,  and  Gen.  A.  W. 
Bishop  and  Warren  F.  Miller,  Esq.,  of  counsel  for  the  Buffalo  Stone 
and  Cement  Company,  it  is 

Ordered,  that  the  said  Charles  F.  Tabor,  as  attorney-general  of  the 
state  of  New  York,  be  and  he  hereby  is  granted  leave  to  bring  an 
action  in  this  court  in  the  name  of  the  people  of  the  state  of  New 
York  against  the  said  corporation  to  dissolve  its  charter,  upon  the 
complaint  annexed  to  the  said  petition  and  made  a  part  thereof. 

Enter:     E.W.H.,].  S.  C 

(b)  To  Stockholder. 

Form  No.  6428.' 

(^  Title  of  court  as  in  Form  No.  6^27.') 

(  Title  of  cause  as  in  Form  No.  61^27. ) 

On  reading  and  filing  the  annexed  petition  of  Thomas  Swords,  a 
stockholder  of  the  Northern  Light  Oil  Company,  a  domestic  corporation 
duly  organized,  formed  and  existing  under  and  by  virtue  of  the  laws 
of  the  state  of  New  York,  and  having  its  principal  business  office  in  the 
city  of  New  York,  state  aforesaid,  which  said  petition  was  verified  on 
the  fifth  day  of  September,  i8P7,  and  it  appearing  that  on  the  eighth  day 
of  April,  i897,  said  petitioner  submitted  to  the  attorney-general  of  the 
state  of  New  York  a  written  statement  of  facts,  duly  verified  by  oath, 
showing  grounds  for  an  action  under  section  1785  of  the  Code  of  Civil 
Procedure  of  the  state  of  New  York,  to  procure  a  judgment  dissolving 
ssiid  Northern  Light  Oil  Company;  and  it  further  appearing  that  the 
said  attorney-general  has  omitted  for  sixty  days  after  the  said  submis- 
sion to  commence  an  action,  as  specified  in  this  section,  for  the  dis- 
solution of  said  corporation,  and  that  the  grounds  stated  in  said 
submission  stated  a  case  proper  for  the  dissolution  of  said  corporation, 
and  that  under  section  1786  of  the  Code  of  Civil  Procedure  of  the 
state  of  New  York  said  petitioner  is  now  entitled  to  commence  an 

1.  The  superior  court  of  Bnffalohae  been  proceeding,  having  been  properly  and 
abolished,  and  the  jurisdiction  formerly  duly  requested  so  to  do,  is  based  on  the 
vested  in  it  transferred  to  the  supreme  facts  in  Swords  v.  Northern  Light  Oil 
court.     N.   Y.  Const.  (1895),  art.  6,  ^  5.  Co.,  17  Abb.   N.  Cas.  (N.   Y.  Supreme 

2.  This  order  gnranting  leave  to  a  stock-  Ct )  1 15. 

holder  to  commence  an  action  for  dis-        For  formal  parts  of  orders,  generally, 
solution  after  omission  on  the  part  of     consult  the  title  Orders. 
the   attorney-general   to   institute    the 

664  Volume  5. 


6429.  CORPORATIONS.  6429. 

action  under  section  1785  of  the  Code  of  Civil  Procedure  of  the  state 
of  New  York  to  procure  a  judgment  dissolving  said  corporation. 

Now  therefore,  on  motion  of  William  B.  Jay,  Esq.,  attorney  for  said 
petitioner,  and  Oliver  Ellsworth,  Esq.,  of  counsel  for  the  said  Northern 
Light  Oil  Company,  it  is 

Ordered,  that  Thomas  Swords,  the  said  petitioner,  be  and  he  is  hereby 
granted  leave  to  commence  an  action  under  section  1785  of  the  Code 
of  Civil  Procedure  of  the  state  of  New  York  in  this  court,  for  and  on 
behalf  of  himself  and  all  other  stockholders  who  may  come  in  and  con- 
tribute to  the  expenses  of  the  suit  against  the  sa.\d  Northern  Light  Oil 
Company,  for  the  purpose  of  dissolving  said  corporation,  upon  the 
complaint  annexed-  to  said  petition,  and  made  a  part  thereof. 

Enter:     /.  M.,  J.  S.  C. 

c.  Bill  for  Dissolution. 

BILL   TO    WIND   UP    AND   DISTRIBUTE   ASSETS,    BY   MEMBERS. 

Form  No.  6429.* 

(^Address  and  commencement  as  in  Form  No.  6Jf.l9. ) 

I.  That  the  Northwestern  Mutual  Benefit  Association  is  a  corpora- 
tion organized  in  April,  iS79,  under  an  act  entitled  "An  act  to 
provide  for  the  incorporation  of  co-operative  and  mutual  benefit  asso- 
ciations," approved  April  3,  1869;  that  complainants  are  members  of 
said  association,  and  each  of  them  holds  a  certificate  of  membership 
in  the  second  division,  otherwise  known  as  the  ^^  endowment  division"-, 
that  all  of  their  certificates  were  issued  prior  to  the  eighth  day  of 
June,  \Z83',  that  from  assessments  paid  by  them,  and  the  other 
members  of  said  endowment  division,  the  association  had  collected, 
and  on  the  eighth  day  oi  June,  i^83,  had  on  hand,  to  wit,  sixty  thou- 
sand dollars  and  upwards,  in  money  and  securities,  which  sum  con- 
stituted the  "endowment  fund"  of  the  association,  out  of  which 
complainants  and  other  members  of  the  second  division  were  entitled 
to  receive  their  respective  endowments  at  the  maturity  thereof. 

II.  That  Act  No.  192  of  the  Public  Acts  of  1883  took  effect  June  8, 
1883,  and  soon  thereafter  the  said  association  applied  to  the  Commis- 
sioner of  Insurance  for  license  thereunder,  which  he  refused  to  grant, 
upon  the  ground  that  the  endowment  certificates  issued  by  said  asso- 
ciation were  not  authorized  by  the  act  under  which  it  was  incor- 
porated, and  the  amendments  thereto. 

1.  This   bill  is  based  on  the  facts  in  in  view  of  its  general  jurisdiction  over 

Stamm    v.    Northwestern     Mut.     Ben.  trusts  and  to  afford  remedies  in   cases 

Assoc,  65  Mich.  317.     In    that  case  it  where  courts  of  law  are  inadequate  to 

was  sought  to  wind  up  the  affairs  of  grant  relief,  it  has  jurisdiction  to  grant 

the  corporation  and  distribute  its  assets,  relief  against  a  corporation   upon   the 

The  supreme  court,  on  appeal,  affirmed  same  terms  as  it  might  against  an  in- 

thedecreeof thelowercourt.grantingthe  dividual  under  similar  circumstances, 
relief  prayed  for,  upon  the  theory  that        For  formal  parts   of   bills   in  equity, 

while  courts  of  equity  have  no  jurisdic-  generally,  consult    the    title    Bills   in 

tion    unless   conferred   by  statute,  the  Equity,  vol.  3,  p.  417;    of   complaints 

decree  of  dissolution  of  the  corporation  and  petitions, generally,  consult  the  title 

by  forfeiture  of  its  franchise,  either  at  Complaints,  vol.  4,  p.  1019. 
the  suit  of  an  individual  or  a  state  court 

665  Volume  5. 


6429.  CORPORATIONS.  6429. 

III.  That,  after  the  refusal  of  the  Commissioner  of  Insurance  to 
issue  a  license,  the  officers,  trustees  or  managers  of  the  association 
organized  a  new  one  by  the  same  name,  but  leaving  out  the  endow- 
ment features,  and  obtained  for  said  new  association  from  the  com- 
missioner a  license  to  do  business  under  the  act  of  1883;  that  upon 
the  organization  of  the  new  association,  to  wit,  on  the  fifteenth  day  of 
February,  i8^4>  Jafne^  M.  Barbour,  the  secretary  of  said  association, 
by  authority  of  the  board  of  trustees  thereof,  issued  and  sent  to  com- 
plainants and  the  other  members  of  the  endowment  division  a  printed 
circular,  setting  forth  the  failure  to  obtain  license,  and  the  cause 
thereof,  and  that  the  new  association  had  been  duly  licensed;  that 
there  had  been  for  some  time  a  number  of  dissatisfied  members  in 
the  old  association,  who  had  appointed  a  committee,  who  had  met 
with  the  trustees  of  the  association  to  arrange,  if  possible,  the  differ- 
ences between  them;  that  an  arrangement  was  made  by  which  the 
trustees  agreed  to  pay  for  reinsurance  in  the  new  association  what- 
ever might  be  found  to  have  been  paid  by  each  member  beyond  the 
actual  cost  of  his  insurance,  or,  in  case  he  preferred  to  withdraw  from 
both  associations,  to  pay  him  in  cash  07ie-half  that  amount;  that  the 
complainants  were  not  satisfied  with  the  propositions,  and  they  each 
refused  to  accept  either  of  the  offers  therein  made. 

IV.  That  it  is  the  intention  of  the  trustees  and  officers  of  the  asso- 
ciation to  turn  over  and  appropriate  to  themselves,  or  to  the  new 
association  organized  by  them,  the  said  endowment  fund  of  sixty 
thotisand  dollars ;  that  the  complainants  are  informed  and  believe,  and 
charge  the  fact  to  be,  that  it  is  the  intention  of  said  trustees  and 
officers  to  retain,  as  the  supposed  actual  cost  of  insurance,  a  large 
portion  of  said  fund  of  sixty  t/iousand  dollars,  and  to  convert  the 
same  to  their  own  use,  or  to  the  use  of  the  new  association  so 
organized  by  them;  that  said  association  has  no  legal  right  or 
color  of  right,  to  transact  business  since  it  was  refused  a  license, 
but  that  the  trustees  and  officers  thereof  have  not  wound  up  its 
affairs,  or  instituted  any  proceedings  for  that  purpose,  nor  have 
they  rendered  any  account  to  the  members  of  the  disposition 
made  by  them  of  the  funds  of  the  association,  or  of  their  official 
management  of  its  affairs;  and  they  assert  that  said  endowment  fund 
is  the  property  of  the  members  of  said  endowment  division,  the 
same  having  been  voluntarily  paid  in  by  them  in  the  belief 
that  it  was  competent  for  said  association  to  issue  said  endowment 
certificates. 

V.  That  this  bill  is  filed  for  and  in  behalf  of  complainants,  and  all 
other  members  of  said  endowment  division. 

Wherefore  your  orators  pray: 

1.  That  the  affairs  of  the  association  may  be  wound  up. 

2.  That  said  endowment  fund  may  be  apportioned  and  distributed 
among  the  members  of  said  endowment  division  according  to  their 
respective  rights  and  interests  therein. 

3.  That  said  association,  and  the  officers  and  agents  in  charge 
thereof,  may  be  decreed  and  required  to  pay  to  complainants,  and  to 
each  of  them,  the  amount  due  them,  respectively,  from  the  funds  of 
the  association. 

666  Volume  5. 


64*30. 


CORPORATIONS 


6430. 


4.  That  a  receiver  may  be  appointed  to  take  possession  of  the 
endowment  fund,  and  all  other  assets  of  the  association 

5.  For  general  relief. 

{Signatures  of  complainants.) 
F.  A.  Baker,  Solicitor  and  of  Counsel  for  Complainants. 
{^Verification.)^ 

d.  Complaint,  Petition,  Suggestion  or  Information.* 

(1)  For  Abuse,  Misuse  or  Nonuse  of  Franchise. ^ 
(a)  In  General. 


SUGGESTION    FOR    QUO    WARRANTO    TO    FORFEIT    FERRY    FRANCHISE. 

Form  No.  6430. 

(Precedent  in  Com.  v.  Sturtevant,  182  Pa.  St.  324.)* 


1.  Consult  the  title  Verifications. 

2.  For  the  formal  parts  of  complaints 
or  petitions,  generally,  consult  the  title 
Complaints,  vol.  4,  p.  1019;  for  infor- 
mations, or  suggestions  for  informa- 
tions, in  the  nature  of  quo  warranto, 
consult  the  title  Quo  Warranto. 

3.  Consult  list  of  statutes  cited  supra, 
note  2,  p.  658. 

4.  Another  Precedent.  —  In  State  v. 
Council  Bluffs,  etc..  Ferry  Co..  11  Neb. 
354,  the  information  filed  on  behalf  of 
the  state  to  forfeit  a  ferry  franchise  for 
nonuser  alleged  "  that  on  the  i6th  day 
of  January,  1855,  an  act  was  passed  by 
the  territorial  legislature  '  to  incor- 
porate the  Council  Bluffs  and  Nebraska 
Ferry  Company,'  which  act  was  ap- 
proved February  21,  1855.  That  by 
the  third  section  of  said  act  the  cor- 
porate business  of  said  corporation 
should  be  managed  by  a  board  of  di- 
rectors of  not  less  than  Jive  nor  more 
than  seven,  who  should  be  stockholders, 
and  from  their  number  they  should 
choose  a  president  and  treasurer,  who 
should  hold  their  office  for  one  year  and 
until  their  successors  should  be  chosen. 
That  by  the  fourth  section  of  said  act 
exclusive  power  was  conferred  upon 
said  corporation  to  keep  a  ferry  and 
build  a  toll-bridge  across  the  Missouri 
river  at  a  point  known  as  the  Lone  Tree 
Ferry,  opposite  the  city  of  Omaha,  the 
then  place  of  crossing,  or  at  any  other 
practicable  point  on  said  river  midway 
between  the  grade  at  or  near  the  said 
Lone  Tree  Ferry  landing  in  Lowa,  and 
the  ferry  landing  at  Florence,  and  mid- 
way between  said  grade  and  the  ferry 


landing  at  Bellevue.  That  by  the  fifth 
section  of  said  act  it  was  made  the  duty 
of  said  company  to  procure  and  keep  a 
suitable  boat  or  boats,  or  erect  and  keep 
in  repair  a  substantial  bridge,  for  the 
safe  and  speedy  transportation  of  per- 
sons and  property  over  said  river  at  all 
reasonable  and  suitable  times.  That 
said  act  was  duly  published  among  the 
laws  of  the  first  session  of  said  legis- 
lative assembly  on  page  448,  to  which 
reference  is  made.  That  in  pursuance 
of  said  act  the  said  company,  soon 
after  the  passage  thereof,  organized  by 
the  election  of  officers,  and  for  a  time 
performed  the  duty  required  of  it  by 
said  fifth  section  by  procuring  and 
keeping  a  suitable  boat  for  the  trans- 
portation of  persons  and  property  over 
said  river.  That  since  xh^  first  day  of 
March,  1877,  the  said  company  has  ut- 
terly and  wilfully  failed  and  neglected 
to  perform  its  duty  in  that  behalf,  and 
has  not  during  all  that  time  kept  a 
suitable  or  any  boat,  nor  erected  nor 
kept  in  repair  a  substantial  nor  any 
bridge  for  the  transportation  of  persons 
and  property  over  said  river  at  all 
reasonable  and  suitable  times,  or  for 
any  other  purpose,  whereby  the  rights, 
privileges  and  franchises  of  said  com- 
pany have  become  and  are  subject  to 
be  forfeited.  That  during  all  said  time, 
until  within  a  few  months  past,  the  said 
officers,  provided  by  section  three  of 
said  act,  were  not  elected  by  the  stock- 
holders of  said  company,  and  no  presi- 
dent and  treasurer,  or  either  of  them, 
was  chosen  by  the  board  of  directors  as 
required  by  said  section  three,  but  rela- 


667 


Volume  5. 


6430.  CORPORATIONS.  6430. 


\The  Commonwealth  of  Pennsylvania  ex 
relatione  William  U.  Jfensel,  Attorney- 
General, 


In    the   Court   of  Common 


aeainst  V     ^^^^^  °^  ^^^''-^  County, 


November  Term,  i2>9Jf,  No. 
12. Y 


Peleg  Sturtevant  and  Henry  F.  Zaring, 
Owners  and  Operators  of  '■''The  Liver- 
pool Ferry," 
Be   it  remembered,  on  this  eleventh  day  of  September,  a.  d.  i8P^, 

comes  William  U.  Hensel,  the  attorney-general  of  the  commonwealth  of 

Pennsylvania,  and  files  this  his  suggestion,  and  gives  the  court  to 

understand  and  be  informed,* 

1.  That  by  an  act  of  assembly  approved  the  21st  day  of  March, 
1865.  (P.  L.  1867,  page  1356),  there  was  established  a  public  ferry  on 
the  Susquehanna  river  at  the  borough  of  Liverpool,  Perry  county,  Pa., 
from  Shank's  Bridge  in  said  borough  to  a  point  at  or  near  Liverpool 
station  on  the  Northern  Central  Raihv ay  in  Dauphin  county,  Pa.,  to 
be  known  as  ^'' The  Liverpool  Ferry,"  3.x\6.  one  William  Inch,  Sr.,  his 
heirs  and  assigns  were  by  the  said  act  given  the  franchise  to  carry 
foot  persons  by  the  said  ferry  for  tolls  not  to  exceed  twenty  cents. 

2.  That  by  the  said  act  the  said  William  Inch,  Sr.,  his  heirs  and 
assigns  were  directed  to  keep  the  said  ferry  in  good  order  and  repair 
and  furnish  all  needful  facilities  for  ferrying  foot  persons  across  the 
said  ferry,  and  upon  condition  that  he  or  they  should  so  do  and  con- 
tinue so  to  do,  he  or  they  were  given  the  exclusive  right  and  franchise 
to  conduct  the  said  ferry,  and  it  was  further  enacted  that  so  long  as 
the  said  duty  was  so  performed  no  other  ferry  should  be  established 
for  one  half  mile  above  or  below  the  said  ^'■The  Liverpool  Ferry." 

3.  That  the  franchise  aforesaid  has  passed  by  devolution,  pur- 
chase, assignment,  etc.,  from  the  said  William  Inch,  Sr.,  to  divers 
persons  from  time  to  time,  and  it  is  now  vested  in  Peleg  Sturtevant 
and  Henry  F.  Zaring,  who  claim  to  be  the  sole  owners  of  the  said 
franchise  at  present  and  for  some  time  past,  and  are  now  and  have 
been  conducting  the  said  ferry. 

4.  That  the  present  owners  of  the  said  ferry  and  their  predecessors 
from  time  to  time  have  failed  to  furnish  all  needful  facilities  for 
ferrying  foot  persons  across  the  said  river  and  to  keep  the  said  ferry 
in  good  order  and  repair,  but  on  the  contrary  have  conducted  and 
maintained  the  said  ferry  in  an  inadequate,  improper,  negligent  and 
unlawful  manner,  and  not  as  required  by  the  conditions  of  the  said 
grant,  which  acts  of  omission,  misuser,  nonuser  and  illegal  main- 
tenance of  the  said  ferry  are  specifically  as  follows:  (^Statement  of 
acts.y- 

tor  is  informed  that  the  said  William  not   appear  in  the  reported    case,   but 

W.  Marsh  now  claims  to  have  been  duly  have  been  added  to  complete  the  form, 

chosen  as  president,  and  the  said  Frank  2,  Acts  of  omission,  misuser   and  non- 

Murphy  as  treasurer  of  said  corpora-  user  referred  to  in  the  text  were  enu- 

tion,  and  they  have  for  the  space  oi  five  merated  as  follows: 

days  and  more  last  past  assumed  to  act  "(a)  That  they  and  their  predecessors 

as   such   officers,    notwithstanding  the  have  for  a  long  time  past  furnished  for 

forfeiture  of  the  rights  and   franchises  the  said    ferry   inadequate,    unfit   and 

of  the  said  corporation  as  aforesaid."  dangerous  boats;  (b^  that  they  and  their 

1.  The  words  and  figures  in  [  ]  do  predecessors  have  for  a  long  time  past 

668  Volume  5. 


643 1 .  CORPORA  TIONS.  643 1 . 

All  of  which  acts,  matters  and  things  in  the  premises  have  been 
and  continue  to  be  to  the  great  loss,  delay  and  damage  of  the  public, 
whereby  the  condition  upon  which  the  exclusive  grant  to  the  defend- 
ants and  their  predecessors  has  been  violated  and  failed,  and  the 
said  exclusive  grant  and  franchise  has  long  since Jn  fact  and  in  law 
become  forfeit. 

Wherefore  the  said  commonwealth  prays  the  consideration  of  the 
court  here  in  the  premises,  and  that  due  process  of  law  be  awarded 
against  the  said  Feleg  Sturtevant  and  Henry  F.  Zaring,  owners  and 
operators  of  ^^  The  Liverpool  Ferry"  and  that  it  be  adjudged  that  the 
said  Feleg  Sturtevant  and  Henry  F.  Zaring,  owners  and  operators  of 
'■''The  Liverpool  Ferry"  and  their  predecessors  have  forfeited  all  and 
singular  the  exclusive  right,  property  and  franchise  to  own  and  con- 
duct the  said  '■'■  The  Liverpool  Ferry  "  as  the  sole  and  exclusive  ferry 
between  the  points  in  the  said  act  of  grant  named,  and  have  in  fact 
and  in  law  no  longer  such  sole  and  exclusive  power  and  franchise,  so 
that  the  commonwealth  of  Pennsylvania  may,  if  it  so  is  moved,  grant 
to  others  than  the  defendants  rights  and  franchises  to  establish  and 
conduct  ferries  upon  the  said  Susquehanna  river  between  the  points 
named  according  to  law. 

And  further  that  a  quo  warranto  be  issued  against  the  said  Feleg 
Sturtevant  duad.  Henry  F.  Zaring,  sole  owners  and  operators  of  ^^The 
Liverpool  Ferry  "  to  show  by  what  warrant  or  authority  they  claim  to 
exercise  the  said  sole  and  exclusive  right  to  maintain  the  said  '■''The 
Liverpool  Ferry  "  as  the  exclusive  ferry  between  the  points  named  in 
the  said  act  of  March  21,  1865,  so  that  the  commomvealth  oi  Pennsyl- 
vania may  not  at  her  pleasure  and  mere  motion  grant  unto  others 
than  they,  the  said  defendants,  the  franchise  and  right  to  establish 
and  maintain  other  ferries  between  the  said  points,  etc. 

[IVilliam  U.  Hensel,  Attorney-General. 

{Verification.y-]^ 

(l>)  Illegal  Business  —  Lottery. 

Form  No.  6431.' 

employed  and  placed  in  charge  of  said  they  have  failed  to  keep  said  ferry  in 

ferry-boats     inexperienced,     improper  good  order  and  repair  and  furnish  all 

and  negligent  ferrymen;  {c)  that  they  needful  facilities  for  ferrying  foot  per- 

and  their  predecessors  have  for  a  long  sons  across  said  ferry." 
time  past  refused  and  neglected  to  ferry         1.  Consult  the  title  Verifications. 
foot  p,irsons  on  divers  occasions,  so  that        2.  The  words  in  [  ]  do  not  appear  in 

numbers  of   persons   have   been   com-  the  reported  case,  but  have  been  added 

pelled  to  seek  other  ferries   above  or  to  complete  the  form, 
below  the  said  'The  Liverpool  Ferry';        3.  This  complaint  is  based  on  the  facts 

(il)   that   they  and   their   predecessors  in    State    v.   International    Investment 

have  for  a  long  time  past  charged  ex-  Co.,  88  Wis.  512.     In  that  case  the  de- 

tortionate,   excessive  and    illegal  tolls  fendantanswered  the  petition,  alleging, 

and  refused  to  carry  foot  persons  for  the  among  other  things,  that  the  defendant 

tolls  and  ferriage  provided  by  the  said  had  about  five  hundred  members,  and 

act;  (1?)  that  they  and  their  predecessors  a   large    number   of  agents    soliciting 

have  for  a  long  time  past  done  other  and  persons  to  become  members,  and   that 

different  acts  and  omissions  of  misuser  it  had  not  yet  paid  a  contract  of  mem- 

and   nonuser   through   and   by   which  bership  for  the  reason  that  it  had  not 

669  Volume  5. 


6431. 


CORPORA  TIONS, 


6431. 


In  the  Supreme  Court  of  the  State  of  Wisconsin. 
The  State  of  Wisconsin  ex  relatione  ^ 
Philip  Lederer,  plaintiff, 
against 
The  International  Investment 

Company,  defendant. 
The  above  named  plaintiff,  Philip  Lederer,  by  Oliver  Ellsworth,  his 
attorney,  brings  this  action  in  the  name  of  the  state  of  Wisconsin 
against  the  above  named  defendant,  the  International  Investment 
Company,  and  complains  and  alleges:  That  the  defendant,  the  Inter- 
national Investment  Company,  is  a  corporation,  which  was  duly  incor- 
porated on  the  seventh  day  oi  July,  i893,  under  and  by  virtue  of  the 
laws  of  the  state  of  Wisconsin,  that  the  original  articles  of  organiza- 
tion of  the  said  International  Investfnent  Company  were  amended  on 
the  eighth  day  of  December,  i893,  so  as  to  contain  among  other  things 
(^Here  ivas  set  out  the  effect  of  the  amendment^.^ 

That  the  contract  of  membership  is  prescribed  in  the  rules,  which 
are  made  a  part  of  the  articles,  and  among  other  things  contains  in 
effect  the  following  (^substance  of  contract).^ 


continued  business  long  enough.  Re- 
lator demurred  to  this  answer,  which 
demurrer  was  sustained  and  judgment 
directed  vacating,  dissolving  and  an- 
nulling the  corporate  existence  of  the 
defendant  and  ousting  it  of  its  fran- 
chises, on  the  theory  that  a  corporation 
whose  primary  object  is  without  statu- 
tory authority  cannot  legally  exist, 
even  though  among  its  declared  pur- 
poses are  some  for  the  promotion  of 
which  the  law  permits  corporations  to 
be  formed. 

1.  The  amendment  of  the  articles  of  or- 
ganization referred  to  in  the  text  pre- 
scribed substantially  in  effect  "the 
duties  and  salaries  of  each  and  every 
of  the  several  officers,  directors  and 
agents  of  the  company,"  and  provided 
"that  the  business  of  said  corporation 
shall  be  to  encourage  frugality  and 
economy  in  its  members,  to  create, 
husband  and  distribute  funds  from  the 
monthly  instalments,  dues  or  invest- 
ments from  its  members,  to  purchase, 
take,  hold,  sell,  convey,  lease,  rent  and 
mortgage  real  estate  and  personal  prop- 
erty, to  loan  surplus  accumulations, 
and  to  carry  on  and  conduct  a  general 
investment  business;  that  said  corpo- 
ration shall  have  no  capital  stock,  but 
shall  be  composedbf  incorporators  and 
members,  who  shall  be  admitted  in  the 
manner  therein  particularly  defined; 
that  said  corporation  shall  issue  incor- 
porators' shares,  originally,  only  to  the 
persons  who  signed  the  original  articles 
of  incorporation,  and  to  such  other  per- 


sons as  the  said  incorporators  or  their 
assigns  shall  nominate:  provided  "  (stat- 
ing other  provisions  relating  to  member- 
ship, issuance  of  shares,  forfeitures, 
expulsions ,  etc.), 

2.  Contract  of  membership  referred  to 
in  text  provided: 

"That  for  and  in  consideration  of  a 
membership  fee  of  $5,  and  the  promise 
and  agreements  of  the  second  party 
herein  expressed,  the  first  party  doth 
hereby  grant  unto  the  second  party,  his 
heirs,  representatives  and  assigns,  so 
long  as  he  and  they  shall  keep  the  said 
promises  and  agreements,  but  not 
longer,  all  the  rights  and  benefits  pro- 
vided by  the  articles  of  organization 
and  rules  of  the  company;  and  the  sec- 
ond party  therein  promises  and  agrees 
to  pay  unto  the  company  each  month, 
from  the  date  thereof  until  the  contract 
is  retired  or  forfeited,  the  sum  of  $^, 
and  also  agrees  to  comply  with  all  the 
requirements  of  the  rules  of  the  com- 
pany; that  if  he  keeps  his  agreements 
therein  contained,  but  not  otherwise, 
then,  in  consideration  of  the  premises, 
the  company  will  pay  to  him,  his  heirs, 
executors,  administrators,  or  assigns, 
out  of  the  reserve  fund  (referred  to  in 
the  rules)  accumulated  for  that  pur- 
pose, on  or  before  forty-three  years 
from  and  after  the  date  heroef,  the  sum 
of  $/,ooo,  provided  that  this  contract  is 
then  in  force,  and  has  not  been  reached 
and  paid  under  the  further  provisions 
hereof;  or  the  company  doth  further 
agree  that,   if  the  holder  hereof   shall 


670 


Volume  5. 


6431.  CORPORATIONS.  6431. 

That  the  rules  further  provide  that  every  person  desiring  to  become 
a  member  shall  make  written  application  for  the  number  of  contracts 
he  desires,  not  less  \.\\2iXi  four,  and  shall  accompany  his  application 
with  a  membership  fee  oi  five  dollars  for  each  contract  applied  for, 
but  the  company  shall  have  the  right  to  reject  any  application  upon 
the  return  of  the  membership  fee;  that  upon  receipt  of  such  applica- 
tion this  company  shall  immediately  return  to  such  applicant  a  state- 
ment showing  the  numbers  of  the  contracts  that  will  issue  upon  the 
application,  and,  if  the  applicant  shall  in  writing  agree  to  accept  the 
contracts  bearing  the  numbers  so  designated,  the  contract  of  mem- 
bership shall  be  deemed  complete;  but  if  he  shall  refuse  to  accept 
such  contracts  he  shall  immediately  notify  the  company  in  writing, 
at  its  home  office  of  his  refusal,  and  his  membership  fee  shall  be 
returned  to  him  and  his  application  canceled;  that  contracts  issued 
shall  bear  the  numbers  agreed  upon,  and  the  holder  shall  pay  unto  this 
company,  at  his  home  office,  unless  otherwise  ordered  by  the  board, 
a  monthly  instalment  of  two  dollars  per  month  upon  each  contract, 
for  each  successive  month  from  date  of  contract  until  cancellation; 
that  the  contracts  issued  shall  be  numbered  in  the  numerical  order 
issued,  and  to  correspond  with  the  numbers  agreed  to  be  given  in 
pursuance  of  article  seven,  and  shall  be  issued  only  in  blocks  oi  four; 
that,  if  any  member  shall  fail  or  neglect  to  pay  any  instalment  within 
fifteen  days  after  it  matures,  he  shall  pay  a  fine  of  ^f/Vy  cents  for  each 
such  instalment;  and  if  such  instalments  and  fines  shall  not  be  paid 
within  fifteen  days  from  the  time  when  such  fine  was  assessed, 
together  with  the  instalment  then  maturing,  the  contract  upon  which 
the  instalment  matured  and  the  fine  was  assessed  shall  thereupon 
lapse  and  become  null  and  void,  and  all  payments  and  instalments 
theretofore  made  thereon  shall  be  forfeited;  nor  shall  this  company 
give,  or  be  required  to  give,  any  notice  of  the  maturity  of  instalments 
or  the  assessment  of  fines,  or  of  forfeiture  or  lapse  of  contract. 

That  the  rules  then  provide  {statement  of  provisions).^ 

well  and  truly  keep  his  said  agreement,  the  text  were  to  the  efifect  "  that  there 
this  company  will  pay  to  him,  his  heirs,  shall  be  created  and  maintained  what 
executors,  administrators,  or  assigns,  shall  be  known  as  a  '  members'  trust 
out  of  the  members'  trust  fund  (re-  fund,'  to  which  shall  be  applied  %i 
ferred  to  in  the  rules)  accumulated  for  from  each  monthly  instalment  re- 
that  purpose,  when  there  shall  be  suffi-  ceived,  and  all  fines  and  transfer  fees 
cient  money  in  that  fund  therefor,  and  collected,  and  from  which  shall  be 
when  this  contract  is  reached  in  its  or-  made  the  payment  upon  contracts  men- 
der of  payment,  and  not  before,  the  tioned  in  article  12.  Article  12  pro- 
sum  of  %i,ooo,  subject,  however,  to  dis-  vides  that,  as  often  as  there  shall  be  in 
count  pursuant  to  the  provisions  of  arti-  the  members'  trust  fund  the  sum  of 
cle  14  of  the  rules:  provided,  however,  %i,ooo,  there  shall  be  paid  to  the  holder 
that  this  contract  has  not  then  been  of  one  outstanding  contract  of  mem- 
paid  pursuant  to  the  first  foregoing  bership  the  sum  of  %i,ooo,  subject  to 
provision  thereof;  that  if  the  second  certain  conditions  mentioned  therein; 
party  shall  fail  to  pay  any  instalment  that  the  first  contract  upon  which  pay- 
within  the  time  specified  by  the  rules,  ment  shall  be  made  shall  be  contract 
or  if  he  shall  fail  to  obey  and  observe  No.  /,  the  second  payment  shall  be 
the  said  rules,  this  company  shall  have  upon  contract  No.  4,  the  third  payment 
the  right  to  cancel  and  revoke  this  con-  upon  contract  No.  ^,  the  fourth  pay- 
tract  and  terminate  this  membership,  ment  upon  contract  No.  <?,  and  so  on, 
without  notice,  proceeding  or  process."  reverting  back  to  the  first  issued,  un- 
1.  Provisions  of  the  mles  referred  to  in  forfeited,  unpaid  nonmultiple  contract 

671  Volume  5. 


6431.  CORPORATIONS.  6431- 

That  the  business  of  the  defendant,  the  said  the  International 
Investment  Company,  is  illegal,  for  the  reasons  that  said  alleged  corpo- 
ration has  in  it  the  element  of  chance  and  uncertainty,  and  is  in  vio- 
lation of  the  statutes  of  the  state  of  Wisconsin  against  the  maintenance 
and  operation  of  lotteries,  and  that  its  manner  of  doing  business  is 
and  has  been  intended  to  deceive  persons,  and  especially  such  persons 
as  have  become  and  may  hereafter  become  members  of  said  corpora- 
tion, and  that  its  business  is  illegal  and  contrary  to  law,  and  a  common 
and  public  fraud  in  this,  to  wit:  (^Here  was  set  out  the  facts  shoiving  the 
method  and  manner  of  the  business  and  operation  of  the  corporation. ) 

That  your  relator,  the  said  Philip  Lederer,  is  now  and  was  at  the 
time  hereinabove  mentioned  a  resident  of  the  city  and  county  of  Mil- 
waukee, in  the  state  of  Wisconsin,  and  an  elector  and  tax-payer  of  and 
in  said  state,  and  a  member  of  said  corporation,  the  said  International 
Investment  Company. 

That  in  pursuance  of  section  3242  of  the  Revised  Statutes  of  the 
state  of  Wisconsin  (Sanb.  &  B.  Anno.  Stat.  (1889),  §  3242)  your 
relator,  the  %2\^  Philip  lederer,  duly  applied  to  the  attorney-general 
of  the  state  of  Wisconsin,  requesting  him  to  bring  an  action  for  the 
purpose  of  vacating  the  charter  and  annulling  the  existence  of  said 
corporation,  the  said  International  Investment  Cojnpany,  for  the  reason 
hereinbefore  specifically  set  out  and  enumerated;  and  that  said  attor- 
ney-general, upon  said  application,  refused  and  has  since  hitherto  ever 
since  refused  to  bring  such  action,  and  that  upon  such  refusal  of  the 
attorney-general  to  proceed  as  aforesaid  your  said  relator  duly  applied 
to  the  Supreme  Conrt  after  having  given  due  notice  of  such  application 
to  the  attorney-general  and  to  the  defendant,  the  said  International 
Investment  Company,  for  leave  to  bring  this  action;  and  that  there- 
upon said  court  duly  granted  to  the  plaintiff  leave  to  sue  and  bring 
this  action,  with  like  force  and  name  as  if  the  same  had  been  brought 
by  the  attorney-general  in  the  name  and  in  behalf  of  the  people  of  the 
state  of  Wisconsin,  and  that  an  order  to  that  effect  was  duly  made  and 

entered  on  the day  o' ,  18 — ,  as  follows:  (^Here  set  out 

the  order  granting  leave  to  sue)}  a  copy  of  which  said  order  is  hereto 
annexed  and  made  a  part  of  this  petition. 

and  alternating  with  the  lowest  unpaid,  twenty  per  centum  of  the  amount  due 

unforfeited  multiple  of  four,  until  like  upon  every  such   contract;  and  article 

payments  have  been  made  to  the  hold-  15,    after    providing     for    a     'reserve 

ers   of  all  issued,   unforfeited,   unpaid  fund,'   provides  further  that  whenever 

contracts;   but   the   company   shall  be  any  contract  shall   mature,   under  the 

required  to  pay  or  make  payment  upon  provisions     for     payment,    forty-three 

no   contract    until    there    is    sufficient  years  from  and  after  the  date  thereof, 

money    in    the   members'    trust    fund  provided  it  has   not   been  paid   before 

therefor,    nor   until    such    contract    is  that  time,  there  shall   be    paid   to  the 

regularly  reached  in  its  order  for  pay-  holder  thereof  the  sum  of  %i,ooo  from 

ment;    provided,    however,    that    such  said  reserve  fund.     It  is  also  provided 

contract  has  not  been   paid  at  expira-  that  all  instalments  shall  be  paid  at  the 

tion  of  time,  or  upon  surrender,  pur-  home  office,  unless  otherwise  ordered 

suant  to  the  provisions   of  article   15.  by  the  board,  and  proper  receipts  given; 

Article  14  provides  that  in   case  there  that  all  receipts  shall  be  numbered,  and 

shall  have  been  less  than  sixty  monthly  duplicate  stubs  with  duplicate  numbers 

instalments  paid  upon  any  contract  of  to   correspond  with   the    receipt   num- 

membership  up  to  the  time  that  such  bers  shall  be  kept  in  the  office." 

contract  is  canceled  by  payment,  then  1.  For  form  of  sach  an  order  see  supra, 

there  shall  be  deducted  and  reserved  Form  No.  6428. 

672  Volume  5. 


6432.  CORPORATIONS.  6432. 

Wherefore  relator  demands  judgment  against  the  defendant,  the  said 
International  Investment  Company^  vacating,  dissolving  and  annulling 
the  corporate  existence  of  said  corporation,  and  ousting  the  said  cor- 
poration of  its  said  franchises  heretofore  exercised  by  it. 

Oliver  Ellsworth,  Attorney  for  the  Plaintiff. 

(  Verification.  )i 

(f )  Illegal  Combination  —  Monopoly. 

aa.  Gas  Trust. 

Form  No.  6432.' 

In  the  Circuit  Court  of  Cook  County,  Term,  1Z88. 

State  of  Illinois,  \ 
Cook  County.        \  ^^'^• 

Daniel  Webster,  attorney-general  of  the  state  of  Illinois, -^h-o  sues 
for  the  people  of  said  state  in  this  behalf,  comes  into  court  here  on 
this  day,  and  for  the  said  people,  and  in  the  name  and  by  the 
authority  thereof,^  at  the  relation  of  Francis  B.  Peabody,  according 
to  the  form  of  the  statute  in  such  case  made  and  provided,  gives  the 
court  here  to  understand  and  be  informed,  that  the  Chicago  Gas 
Light  and  Coke  Company  is  a  corporation,  organized  under  and  by 
virtue  of  a  charter  granted  to  it  by  the  legislature  of  the  state  of 
Illinois  in  the  year  1 8-45.  .  (Ilere  was  set  out  in  full  the  charter,  an 
amendatory  act  passed  in  1855,  and  an  enabling  act  of  1869,  permitting 
said  company  to  increase  its  capital  stock. ) 

That  the  People's  Gas  Light  and  Coke  Company  is  a  corporation 
organized  under  and  by  virtue  of  a  charter  granted  to  it  by  the 
legislature  of  the  state  of  Illinois,  in  i855.  (^Here  was  set  out  in  full 
the  charter.')  That  an  ordinance  was  passed  by  the  common  council 
of  the  city  of  Chicago,  in  i8«55,  authorizing  {Here  was  set  out  in  full 
the  ordinance).^  That  in  April,  i862,  an  agreement  was  entered  into 
by  and  between  the  said  Chicago  Gas  Light  and  Coke  Company,  and 
the  said  People's  Gas  Light  and  Coke  Company,  which  said  agreement 

1.  Consult  the  title  Verifications.  nal  proceeding,  and  need  not  be  prose- 

2.  This  information  is  based  on  the  cuted  "  in  the  name  and  by  the  authority 
ftujts  in  People  v.  Chicago  Gas  Trust  of  the  people,"  for  it  is  not  an  informa- 
Co.,  130  111.  268.  Demurrers  to  de-  tion  in  the  nature  of  a  quo  warranto, 
fendant's  pleas  were  overruled.  On  but  a  civil  procedure  of  a  special  statu- 
appeal  from  the  judgment  of  the  cir-  tory  character.  Chicago  Mut.  L.  In- 
cuit  court,  the  supreme  court  reversed  demnity  Assoc,  v.  Hunt,  127  111.  258. 
and  remanded  the  cause,  with  direc-  But  an  information  in  the  nature  of  a 
tions  to  sustain  the  demurrer.  The  quo  warranto  must  be  "in  the  name 
court  held  in  this  case  that  a  corpora-  and  by  the  authority  of  the  people  of 
tion  formed  under  the  general  law  for  the  state  of  Illinois,"  and  conclude 
the  manufacture  and  sale  of  gas  cannot  "  against  the  peace  and  dignity  of  the 
clothe  itself  with  power  to  purchase  same."  Chesshire  v.  People,  116  111. 
and  hold  stock  in  other  gas  corpora-  493;  Hays  v.  People,  59  111.  94;  Don- 
tions  merely  by  naming  this  as  one  of  nelly  v.  People,  11  111.  552. 

the  objects  of  its  incorporation  in  the  4.  The  ordinance  referred  to  in  the  text 

articles  filed  with  the  secretary  of  state,  authorized  the  People's  Gas  Light  and 

3.  An  information  filed  in  a  court  of  Coke  Company  to  lay  its  mains  and 
equity  against  a  corporation,  for  the  pipes,  etc.,  in  the  streets,  etc.,  of  said 
purpose  of  dissolving  it,  is  not  a  crimi-  city. 

5  E.  of  F.  P.— 43.  673  Volume  5. 


6432.  CORPORATIONS.  6432. 

provided  \Here  was  set  out  in  full  the  agreement  and  also  the  substance 
of  a  certain  litigation  between  the  two  gas  companies)}- 

That  the  said  Chicago  Gas  Light  and  Coke  Company  received  subscrip- 
tions to  its  capital  stock  to  the  amount  oifour  million  nine  hundred  and 
eighty-four  thousand  two  hundred  do\\a.rs  and  issued  certificates  for  one 
hundred  and  ninety-nine  thousand  three  hundred  and  sixty-eight  shares  of 
such  stock,  each  share  for  twenty-five  dollars.  That  the  People's  Gas 
Light  and  Coke  Company  received  subscriptions  to  its  capital  stock  to 
the  amount  of  four  million  dollars,  and  issued  certificates  for  forty 
thousand  shares,  of  one  hundred  dollars  each.  That  the  two  said 
companies  laid  their  mains  and  pipes  in  the  streets  of  the  city  of 
Chicago,  in  the  state  of  Illinois,  and  operated  their  works,  and  fur- 
nished gas  to  the  city  and  its  inhabitants,  the  former  after  April, 
i2)62,  in  the  north  and  south  divisions  and  the  latter  after  the  same 
date  in  the  west  division  of  the  said  city. 

That  in  January,  i2>82,  the  Consumers'  Gas,  Fuel  and  Light  Com- 
pany of  Chicago,  Illinois,  was  organized  under  the  general  Incorpora- 
tion act  of  1872,  and  was  authorized,  by  an  ordinance  of  the  common 
council  of  Chicago,  passed  April  28,  1882,  to  construct  and  operate 
its  works  in  that  city  and  to  lay  its  pipes  and  mains  under  the  streets 
(describing  them),  and  proceeded  to  lay  its  pipes  in  the  north  and 
south  divisions  and  to  supply  the  inhabitants  with  gas,  and  that,  by 
reason  of  the  foreclosure  of  a  trust  deed  given  by  the  last  named 
company,  its  property,  rights  and  franchises  passed  to  and  became 
vested  in  the  Consumers'  Gas  Company,  a  corporation  organized  in 
November,  1S86,  under  the  general  Incorporation  act. 

That  the  said  Consumers'  Gas  Company  was  duly  incorporated  under 
the  laws  of  the  state  of  Illinois,  with  a  capital  stock  oi  five  million 
dollars,  divided  into  fifty  thousand  shdive.?>  of  one  hundred  doWars  each, 
and  that  said  company  after  the  date  of  such  transfer  to  it,  used  the 
works  and  pipes  and  other  machinery  and  apparatus  in  manufactur- 
ing and  distributing  gas  in  the  said  city  of  Chicago. 

That  the  Equitable  Gas  Light  and  Fuel  Company  of  Chicago  was 
organized  under  the  laws  of  the  state  of  Illinois,  in  August,  iB85, 
under  the  general  Incorporation  law,  with  a  capital  stock  of  three 
million  dollars,  divided  into  thirty  thousand  shares,  of  one  hundred  dol- 
lars each,  and  that  an  ordinance  was  passed  by  the  common  council 
of  the  city  of  Chicago,  giving  the  said  company  the  right  to  lay  down 
gas  pipes  and  mains  in  the  streets  of  said  city,  and  such  other  rights 
as  were  necessary  and  useful  in  carrying  out  its  purposes,  and  that 


1.  The  agreement  referred  to  in  the  text  construed    to    be    void    as   creating  a 

provided  in  effect  for  an  exchange  of  monopoly,   and    being    against    public 

the  mains  and  pipesof  one  company  in  policy,  in  Chicago  Gas  Light,  etc.,  Co. 

one  part  of  the  city  for  the  mains  and  v.  People's  Gas  Light,  etc.,  Co.,  I2i  111. 

pipes  of  the  other  company  in  another  531. 

part  of  the  city,  each  company  agreeing  The  litigation  referred  to  in  the  text 
with  the  other  to  have  the  exclusive  was  an  action  for  specific  performance 
right  of  supplying  gas  in  its  part  of  the  of  a  contract  between  the  two  corn- 
city  for  one  hundred  years,  neither  to  panics,  the  facts  and  result  of  which 
interfere  with  the  business  of  the  other  are  given  in  Chicago  Gas  Light  Co.  v. 
in    its    territory.      This   contract    was  People's  Gas  Light,  etc.,  Co.,  121  111.  530. 

674  Volume  5. 


6432.  CORPORATIONS.  6432. 

said  company  kept  and  maintained  such  gas  mains,  pipes  and  other 
apparatus  needful  and  usefuf  in  its  business  of  manufacturing  gas, 
and  sold  the  gas  so  manufactured  in  the  south  division  of  the  said  city 
of  Chicago. 

That  the  four  companies  above  named,  to  wit:  the  Chicago  Gas 
Light  and  Coke  Company,  the  People  s  Gas  Light  and  Coke  Company,  the 
Consumers'  Gas  Company,  and  the  Equitable  Gas  Light  and  Fuel  Com- 
pany of  Chicago,  were  on  April  29,  iSS7,  and  have  been  and  are  the 
only  gas  companies  engaged  in  that  business  and  occupying  the 
streets  with  gas  mains  in  said  city;  that,  in  the  ordinances  giving  to 
the  Consumers'  Gas,  Fuel  and  Light  Company  (succeeded  by  the  Con- 
sumers' Gas  Company)  and  to  the  Equitable  Gas  Light  and  Fuel  Com- 
pany the  right  to  occupy  the  streets,  it  was  provided  that  such  ordi- 
nances should  not  take  effect  until  said  companies  had  given  bonds 
binding  themselves  respectively  not  to  sell,  lease  or  transfer  their 
franchises  and  privileges  to  any  other  gas  company  and  not  to  enter 
into  any  combination  with  any  other  company  concerning  the  rate 
or  price  to  be  charged  for  gas;  that  each  of  said  corporations  was  by 
law  designed  to  be  and  of  right  ought  to  be  a  separate,  distinct,  inde- 
pendent and  competing  corporation  for  the  manufacture,  sale  and 
furnishing  oi  illuminating  gas  \.o  the  consumers  thereof  in  said  city; 
that  said  four  companies  when  combined  and  operating  under  one 
management  or  power  of  control,  having  a  common  interest  to  sub- 
serve, form  a  monopoly  of  the  business  of  supplying  and  selling 
illuminating  gas  to  the  said  city  and  its  inhabitants. 

And  that  heretofore,  to  wit,  on  the  twenty-ninth  day  oi  April,  i8<?7, 
at  the  said  county  of  Cook,  the  Chicago  Gas  Trust  Company  was,  and 
from  thence  hitherto  hath  been,  and  still  is,  a  corporation  and  body 
politic,  organized  and  existing  under  the  laws  of  the  state  of  Illinois, 
to  wit:  "An  Act  entitled  an  act  concerning  corporations,"  approved 
April  i8,  1872,  and  the  several  acts  amendatory  thereof;  and  that  the 
said  Chicago  Gas  Trust  Company  for  and  during  the  period  of  twelve 
months  or  more  last  past,  at  the  county  of  Cook  aforesaid,  has  usurped 
and  unlawfully  exercised,  and  now  usurps  and  unlawfully  exercises, 
powers,  liberties,  privileges  and  franchises  not  conferred  by  law,  to 
wit,  the  power,  liberty,  privilege  and  franchise  of  obtaining,  by  pur- 
chase, or  in  exchange  for  its  own  stock,  and  holding  and  owning,  and 
then  and  there  did  purchase  and  receive  in  exchange  for  its  own 
stock,  and  now  holds,  a  majority  and  controlling  interest  of  and  in 
the  shares  of  capital  stock  of  the  said  Chicago  Gas  Light  and  Coke 
Company,  the  said  People's  Gas  Light  and  Coke  Company,  the  said  Equi- 
table Gas  Light  and  Fuel  Company  of  Chicago,  and  the  Consumers'  Gas 
Company,  respectively  (as  amended  May  27,  iS89),  and  hath  thereby, 
in  manner  and  at  the  place  aforesaid,  unlawfully  acquired  and  holds 
the  power  to  manage  and  control  the  said  four  corporations,  to  wit, 
the  said  Chicago  Gas  Light  and  Coke  Company,  the  said  People's  Gas 
Light  and  Coke  Company,  the  said  Equitable  Gas  Light  and  Fuel  Com- 
pany of  Chicago,  and  the  said  Consumers'  Gas  Company,  and  hath 
thereby,  and  in  the  manner  and  at  the  place  aforesaid,  destroyed  the 
diversity  of  interest  and  motive  for  competition  between  them,  which 
would  otherwise  exist,  in  the  manufacture,  distribution  and  sale  of 

675  Volume  5. 


6433.  CORPORA  TIONS.  6433. 

illuminating  gas  to  the  city  of  Chicago  and  its  inhabitants,  in  said 
county,  and  hath  thereby  usurped  and  unlawfully  secured  to  itself, 
in  manner  aforesaid,  and,  by  means  of  holding  such  majority  and 
controlling  interest  in  the  shares  of  stock  of  said  four  last  mentioned 
gas  companies,  now  usurps  and  unlawfully  holds,  the  power,  liberty 
and  franchise  of  maintaining,  through  said  four  several  gas  com- 
panies last  mentioned,  a  virtual  monopoly  in  the  business  of  furnish- 
ing illuminating  gas  to  said  city  of  Chicago  and  the  inhabitants 
thereof,  and  to  the  consumers  of  such  gas  in  said  city,  to  wit,  at  the 
place  aforesaid,  to  the  great  detriment  and  injury  of  the  people  of 
the  state  oilllinois;  all  of  which  said  powers,  privileges  and  franchises 
so  exercised  by  it  as  aforesaid,  though  not  conferred  by  law,  the  said 
Chicago  Gas  Trust  Company,  at  and  within  said  county,  upon  the  peo- 
ple of  the  state  of  Illinois,  hath  so  usurped  and  unlawfully  exercised, 
and  now  doth  so  usurp  and  unlawfully  exercise,  contrary  to  law  and 
the  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  people  of  the  state  of  Illinois. 

Whereupon  the  said  George  Hunt,  attorney-general,  for  the  said 
people  and  in  the  name  and  by  the  authority  thereof,  at  the  relation 
of  the  said  Francis  B.  Peabody,  prays  the  consideration  of  the  court 
here  in  the  premises,  and  that  due  process  may  be  awarded  against 
the  said  Chicago  Gas  Trust  Company  in  this  behalf  to  answer  to  this 
court  by  what  warrant  it  exercises  the  powers  and  privileges  herein- 
above described. 

George  Hunt,  Attorney-General. 

{Verification^^ 

bb.  Oil  Trust. 

BECAUSE   OF   CREATION   OF   MONOPOLY  CAUSED   BY  TRANSFER  OF  STOCK 
TO  CERTAIN  TRUSTEES. 

Form  No.  6433. 
(Precedent  in  State  v.  Standard  Oil  Co.,  49  Ohio  St.  137.)* 
[In  the  Supreme  Court  of  the  State  of  Ohio. 
The  State  of  Ohio  ex  relatione  David  K.  ^ 
Watson,  Attorney-General,  plaintiff,       I  ^^,^^,^  Petition.]3 
agamst  (  -' 

The  Standard  Oil  Company,  defendant. 

Now  comes  David  K.  Watson,  the  duly  electea,  qualified  and  act- 
ing Attorney-General  of  the  state   of  Ohio,  and  gives  the  court  to 

1.  Consult  the  title  Verifications.  stockholders    transfer    their    stock    to 

2.  This  action  was  brought  to  oust  the  trustees  on  condition  that  other  corn- 
defendant  of  the  right  to  be  a  corpora-  panics  and  individuals  do  the  same, 
tion,  because  of  an  abuse  of  its  fran-  such  a  proceeding  tends  to  create  a 
chises  by  becoming  a  party  to  an  monopoly,  notwithstanding  the  stock- 
agreement  which  was  against  public  holders  act  individually,  where  the  re- 
policy.  The  supreme  court  rendered  suit  of  their  combined  acts  in  effect 
judgment  ousting  defendant  from  the  becomes  the  act  of  the  corporation, 
right  to  make  the  agreement  set  forth  3.  The  words  within  [  J  do  not  ap- 
in  the  petition  and  of  the  power  to  per-  pear  in  the  reported  case,  but  have 
form   the   same,    holding    that   where  been  added  to  complete  the  form. 

676  Volume  5. 


6433.  CORPORA  TIONS.  6433. 

understand  and  be  informed^*  that  on  or  about  the  10th  day  of 
January^  a.  d.  i876),  the  defendant,  The  Standard  Oil  Company^ 
was  formed  and  organized  as  a  corporation  under  and  according  to 
the  laws  of  the  state  of  Ohio. 

That  the  only  purpose  of  said  defendant,  as  set  forth  in  its  articles 
of  incorporation,  is  '•''the  manufacture  of  petroleum  and  to  deal  in  petro- 
leum and  its  products"  \  that  at  the  time  of  the  defendant's  incorpo- 
ration, its  capital  stock  was  fixed  at  %  1,000, 000. 00;  that  subsequently, 
to  wit:  on  or  about  the  12th  day  of  February,  a.  d.  i?>72,  the  defend- 
ant's capital  stock  was  increased  to  the  sum  of  %2, 500, 000. 00;  that 
afterwards;  to  wit:  on  or  about  the  13th  day  of  March,  a.  d.  i875, 
said  capital  stock  was  increased  to  the  sum  of  %3, 500, 000. 00;  and 
that  after  its  organization,  as  aforesaid,  said  defendant  entered  upon 
and  continued  generally  in  the  pursuit  of  its  corporate  objects,  with 
its  principal  place  of  business  in  the  city  of  Cleveland,  in  this  state, 
until  on  or  about  the  date  of  the  trust  agreements  hereinafter  com- 
plained of  and  set  forth. 

Plaintiff  further  avers,  that  in  violation  of  law  and  in  abuse  of  its 
corporate  powers,  and  in  the  exercise  of  privileges,  rights  and  fran- 
chises not  conferred  upon  it,  defendant,  on  or  about  the  2d  ddiy  of 
January,  a.  d.  \^82,  and  again  on  or  about  the  Jfth  day  of  said  month 
and  year,  entered  into  and  became  a  party  to  certain  trust  agree- 
ments, and  ever  since  then  has,  in  the  manner  and  to  the  extent 
below  stated,  observed,  performed  and  carried  out  said  agreements, 
copies  of  which  are  hereinafter  set  out.  That  said  defendant  so 
entered  into  and  became  a  party  to,  and  carried  out  and  observed 
and  performed  the  same  as  follows,  to  wit:  All  of  the  owners  and 
holders  of  its  capital  stock,  including  all  the  officers  and  directors  of 
the  said  defendant  company,  signed  said  agreements,  without  attach- 
ing the  corporate  name  and  seal  of  said  defendant  company  thereto, 
and  the  official  designations  of  its  officers.  That  prior  to  the  dates 
of  the  trust  agreements  aforesaid,  defendant's  capital  stock  con- 
sisted of  35,000  shares  of  %100.00  each,  and  upon  the  signing  of 
said  agreements  in  the  manner  aforesaid,  34,993  shares  of  said  stock, 
belonging  to  the  persons  who  signed  the  agreements  in  manner  above 
set  forth  (in  what  proportions,  however,  plaintiff  is  unable  to  state), 
were  transferred,  by  defendant's  transferring  officers,  upon  defend- 
ant's stock-books,  to  the  certain  nine  trustees  who  were  appointed 
and  named  in  the  first  one  of  said  trust  agreements,  upon  the  request 
of  the  respective  owners  of  said  shares  and  in  pursuance  of  said 
trust  agreements,  the  remaining  sez>en  of  said  shares  of  stock  being 
retained  by,  or  transferred  to,  the  directors  of  defendant  company; 
that  at  the  time  said  transfer  of  stock  was  made,  there  were  seven 
directors  of  defendant  company,  and  each  one  of  the  sez'en  held  one 
share  of  the  stock  aforesaid,  but  the  number  of  said  directors  was 
thereafter  reduced  to  fve,  who  still  hold  and  vote  said  seven 
shares  of  stock  and  no  more.  That  in  lieu  of  the  transfer  of  said 
34,993  shares,  as  aforesaid,  to  the  nine  trustees  above  mentioned, 
an  equal  amount,  in  par  value  of  certificates  of  the  Standard  Oil 
Trust,  which  were  provided  for  and  described  in  said  trust  agree- 
ments, were  issued  and  delivered  by  said  nine  trustees  to  the  persons 

677  Volume  5. 


6433.  CORPORA  TIONS.  6433. 

aforesaid,  from  whom  said  nine  trustees  had  received  said  SJj.,99S 
shares  of  stock  in  the  defendant  company;  that  the  capital  stock  of 
said  defendant  company  is  still  %3, 500, 000. 00,  and  the  nine  trustees 
before  mentioned  still  hold  and  control  the  3^,993  shares  thereof 
which  were  transferred  to  them  as  above  stated;  that  by  virtue  of  so 
holding  and  controlling  said  shares,  said  fti?ie  trustees  have  been  ever 
since  the  signing  of  said  agreements,  and  still  are,  able  to  choose 
and  have  chosen  annually  such  boards  of  directors  of  defendant 
company  as  they  (said  nine  trustees)  have  seen  fit,  and  are  able  to, 
and  do,  control  the  action  of  the  defendant  in  the  conduct  and  man- 
agement of  its  business;  that  some  of  the  directors  of  defendant 
company,  including  its  president,  have  been,  since  the  date  of  said 
agreements,  and  still  are,  members  of  the  board  of  nine  trustees  pro- 
vided for  in  said  trust  agreements  as  aforesaid,  the  president  of  the 
defendant  company  having  been,  and  being  now,  the  president  of 
said  board  of  nine  trustees. 

That  defendant  has  never  taken  any  corporate  action,  or  made  any 
complaint  against  its  said  stockholders  or  its  directors  and  officers 
signing  said  trust  agreements,  or  either  of  them,  nor  against  its  said 
stockholders  or  officers  surrendering  their  stock  in  the  defendant 
company  to  said  nine  trustees,  nor  against  its  stockholders  or  officers 
or  directors  receiving  the  Standard  Oil  Trust  certificates  which  were 
issued  and  delivered  to  them  as  aforesaid  by  said  nine  trustees  in  ex- 
change for  the  3Ji.,993  shares  of  defendant's  stock,  nor  against  any 
of  the  acts  herein  recited;  and  that  none  of  the  officers,  directors 
or  stockholders  of  defendant  company,  have  at  any  time  objected  or 
made  complaint  against  such  surrender  and  exchange  of  stock  or 
against  any  of  said  recited  acts,  and  on  the  contrary  defendant,  in 
its  corporate  capacity,  and  through  its  officers  and  stockholders,  has 
ever  since  the  acts  in  question  acquiesced  in  such  transfer  and  ex- 
change, and  in  the  annual  election  by  said  fiine  trustees  of  the 
directors  for  the  defendant  as  well  as  in  all  said  recited  acts.  That  the 
directors  of  defendant  company  who  are  chosen  in  manner  aforesaid, 
either  directly  or  through  their  employees,  manage  the  business  of 
that  company  so  as  not  to  conflict  with  the  policy  fixed  from  time  to 
time  by  the  nifie  trustees  aforesaid;  that  the  net  earnings  of  defendant 
company  have  been,  ever  since  the  signing  of  said  agreements,  and 
still  are  from  time  to  time,  declared  and  paid  out  as  dividends  upon 
its  capital  stock;  that  the  nine  trustees  appointed  under  said  trust 
agreements  as  aforesaid,  have  received  the  proportions  of  such  divi- 
dends, which  were  properly  distributable  and  payable  upon  the  stock 
held  by  said  nine  trustees  in  defendant  company;  that  there  are  a 
large  number  of  other  corporations  (plaintiff  being  unable  to  ascertain 
or  state  the  exact  number)  in  the  United  States,  whose  organizations 
were  made,  stock  is  held,  and  directors  elected,  and  whose  affairs 
and  business  and  dividends  are  conducted  and  paid  under  and  pur- 
suant to  the  provisions  of  the  trust  agreements  hereinafter  set  forth, 
in  a  manner  and  to  an  extent  similar  to  that  herein  described  in 
respect  to  defendant,  and  from  the  dividends  so  accumulated  in  the 
hands  of  said  nine  trustees,  dividends  are,  from  time  to  time,  as  the 
interests  of  the  trust  justify,  declared  and  paid  out  by  said  nine  trus- 

678  Volume  5. 


6433. 


CORPORA  TIONS. 


6433. 


tees  to  the  holders  of  the  Standard  Oil  Trust  certificates  which  have 
been  issued  by  them,  so  that  Ihe  holders  of  the  3^,993  shares  of  said 
Standard  Oil  T'ra^/ certificates  which  were  received  in  lieu  of  a  like 
number  of  shares  of  defendant's  stock  transferred  in  manner  afore- 
said upon  the  books  of  defendant  company,  to  said  nine  trustees,  do 
not  receive  the  dividends  which  are  payable  from  the  earnings  of 
defendant  company,  but  receive  dividends  only  from  the  accumu- 
lated earnings  aforesaid,  which  are  derived  from  the  various  similar 
companies  aforesaid,  and  held  and  distributed  as  aforesaid  by  said 
nine  trustees. 

The  following  are  correct  copies  of  two  trust  agreements  herein- 
before mentioned  and  referred  to:  {Here  were  set  out  the  trust  agree- 
ments^'^ 


1.  The  tnut  agreements  referred  to  in 
the  text  were  as  follows:  "This  agree- 
ment, made  and  entered  into  upon  this 
second  day  oi  January,  i8<fe.  by  and  be- 
tween all  the  persons  who  shall  now 
or  may  hereafter  execute  the  same  as 
parties  thereto,  witnesseth: 

I.  It  is  intended  that  the  parties 
to  this  agreement  shall  embrace  three 
classes,  to  wit:  (i)  All  the  stockhold- 
ers and  members  of  the  following  cor- 
porations and  limited  partnerships 
{naming  ihe  corporations);  also  all  the 
stockholders  and  members  of  such 
other  corporations  and  limited  partner- 
ships as  may  hereafter  join  in  this 
agreement  at  the  request  of  the  trus- 
tees hereinbefore  provided  for.  (2)  The 
following  individuals,  to  wit:  {names  of 
the  individuals);  also  all  such  individuals 
as  may  hereafter  join  in  this  agreement 
at  the  request  of  the  trustees  herein 
provided  for.  (3)  A  portion  of  the  stock- 
holders and  members  of  the  following 
corporations  and  limited  partnerships, 
to  wit  {names  of  the  corporations  and 
partnerships);  also  stockholders  and 
members  (not  being  all  thereof)  of 
other  corporations  and  limited  part- 
nerships who  may  hereafter  join  in  this 
agreement  at  the  request  of  the  trus- 
tees herein  provided  for. 

II.  The  parties  hereto  do  covenant 
and  agree  to  and  with  each  other,  each 
in  consideration  of  the  mutual  cove- 
nants and  agreements  of  the  others,  as 
follows: 

(i)  As  soon  as  practicable,  a  corpora- 
tion shall  be  formed  in  each  of  the  fol- 
lowing states  under  the  laws  thereof, 
to  wit:  Ohio,  New  York,  Pennsylvania 
and  New  Jersey;  provided,  however, 
that  instead  of  organizing  a  new  cor- 
poration, any  existing  charter  and 
organization  may  be  used  for  the  pur- 


pose when  it  can  advantageously  be 
done. 

(2)  The  purposes  and  powers  of  said 
corporation  shall  be  to  mine  for,  pro- 
duce, manufacture,  refine  and  deal  in 
petroleum  and  all  its  products  and  all 
the  materials  used  in  such  business, 
and  transact  other  business  collateral 
thereto.  But  other  purposes  and 
powers  shall  be  embraced  in  the  sev- 
eral charters,  such  as  shall  seem 
expedient  to  the  parties  procuring  the 
charter,  or,  if  necessary  to  comply 
with  the  law,  the  powers  aforesaid  may 
be  restricted  and  reduced. 

(3)  At  any  time  hereafter,  when  it 
may  seem  advisable  to  the  trustees 
herein  provided  for,  similar  corpora- 
tions may  be  formed  in  other  states 
and  territories. 

(4)  Each  of  said  corporations  shall  be 
known   as   \\\^  Standard  Oil  Company  of 

{and  here  shall  follow  the  name 

of  the  state  or  territory  by  virtue  of  the 
laws  of  which  said  corporation  is  or- 
ganized). 

(5)  The  capital  stock  of  each  of  said 
corporations  shall  be  fixed  at  such  an 
amount  as  may  seem  necessary  and  ad- 
visable to  the  parties  organizing  the 
same,  in  view  of  the  purpose  to  be 
accomplished. 

(6)  The  shares  of  stock  of  each  of 
said  corporations  shall  be  issued  only 
for  money,  property  or  assets,  equal  at 
a  fair  valuation  to  the  par  value  of  the 
stock  delivered  therefor. 

(7)  All  of  the  property,  real  and  per- 
sonal, assets  and  business  of  each  and 
all  of  the  corporations  and  limited 
partnerships  mentioned  or  embraced 
in  class  first  shall  be  transferred  to  and 
vested  in  the  said  several  Standard  Oil 
companies.  All  of  the  property,  assets 
and  business  in,  or  of,  each  particular. 


679 


Volume  5. 


6433. 


CORPORA  TIONS. 


6433. 


The  plaintiff  further  avers  that  after  the  execution  and  delivery  of 
the  trust  agreement  aforesaid,  to  wit:  on  the  Jfih  day  of  January^  a.  d. 
i85^,  in  violation  of  law  and  in  abuse  of  its  powers  and  in  exercise  of 
privileges  and  franchises  not  conferred  upon  it,  the  defendant,  acting 
through  the  same  parties  as  before  alleged  in  respect  of  the  above 
recited  agreement,  together  with  the  subscribers  thereto,  who  were 


state,  shall  be  transferred  to  and  vested 
in  the  Standard  Oil  Company  of  that 
particular  state,  and  in  order  to  accom- 
plish such  purpose  the  directors  and 
managers  of  each  and  all  of  the  several 
corporations  and  limited  partnerships 
mentioned  in  class  first  are  hereby 
authorized  and  directed  by  the  stock- 
holders and  members  thereof  (all  of 
them  being  parties  to  this  agreement) 
to  sell,  assign,  transfer,  convey  and 
make  over,  for  the  consideration  herein- 
after mentioned,  to  the  Standard  Oil 
Company  or  companies  of  the  proper 
state  or  states,  as  soon  as  said  corpora- 
tions are  organized  and  ready  to  receive 
the  same,  all  the  property,  real  and  per- 
sonal, assets  and  business  of  said  cor- 
porations and  limited  partnerships. 
Correct  schedules  of  such  property, 
assets  and  business  shall  accompany 
each  transfer. 

(8)  The  individuals  embraced  in  class 
second  of  this  agreement  "do  each  for 
himself  agree,  for  the  consideration 
hereinafter  mentioned,  to  sell,  assign, 
transfer,  convey  and  set  over  all  the 
property,  real  and  personal,  assets  and 
business  mentioned  and  embraced  in 
schedules  accompanying  such  sale  and 
transfer,  to  the  Standard  Oil  Company 
or  companies,  of  the  proper  state  or 
states,  as  soon  as  the  said  corporations 
are  organized  and  ready  to  receive  the 
same. 

(9)  The  parties  embraced  in  class 
third  of  this  agreement  do  covenant 
and  agree  to  assign  and  transfer  all  of 
the  stock  held  by  them  in  the  corpora- 
tions or  limited  partnerships  herein 
named,  to  the  trustees  herein  provided 
for,  for  the  consideration  and  upon  the 
terms  hereinafter  set  forth.  It  is  un- 
derstood and  agreed  that  the  said 
trustees  and  their  successors  may  here- 
after make  the  assignment  of  stocks  in 
the  same  or  similar  companies  upon 
the  terms  herein  provided,  and  that 
whenever  and  as  often  as  all  the  stocks 
of  any  corporation  or  limited  partner- 
ship are  vested  in  said  trustees,  the 
proper  steps  may  then  be  taken  to  have 
all  the  money,  property,  real  and  per- 
sonal, of  such  corporation  or  partner- 


ship assigned  and  conveyed  to  the 
Standard  Oil  Company  of  the  proper 
state,  on  the  terms  and  in  the  mode 
herein  set  forth,  in  which  event  the  trus- 
tees shall  receive  stocks  of  the  Standard 
Oil  companies  equal  to  the  value  of  the 
money,  property  and  business  assigned, 
to  be  held  in  place  of  the  stocks  of  the 
company  or  companies  assigning  such 
property. 

(10)  The  consideration  for  the  trans- 
fer and  conveyance  of  the  money, 
property  and  business  aforesaid  to  each 
or  any  of  the  Standard  Oil  companies, 
shall  be  stock  of  the  respective  Standard 
Oil  Company  to  which  said  transfer  or 
conveyance  is  made,  equal  at  par  value 
to  the  appraised  value  of  the  money, 
property  and  business  so  transferred. 
Said  stock  shall  be  delivered  to  the 
trustees  hereinafter  provided  for,  and 
their  successors,  and  no  stock  of  any 
of  the  said  companies  shall  ever  be 
issued  except  for  money,  property  or 
business  equal  at  least  to  the  par 
value  of  the  stock  so  issued,  nor  shall 
any  stock  be  issued  by  any  of  said 
companies  for  any  purpose,  except 
to  the  trustees  herein  provided  for,  to 
be  held  subject  to  the  trusts  hereinafter 
specified.  It  is  understood,  however, 
that  this  provision  is  not  intended  to 
restrict  the  purchase,  sale  and  exchange 
of  property  by  said  Standard  Oil  com- 
panies as  fully  as  they  may  be  author- 
ized to  do  by  their  respective  charters, 
provided  only  that  no  stock  be  issued 
therefor  except  to  said  trustees. 

(11)  The  consideration  for  any  stocks 
delivered  to  said  trustees  as  above  pro- 
vided for,  as  well  as  for  stocks  de- 
livered to  said  trustees  by  persons 
mentioned  or  included  in  class  third  of 
this  agreement,  shall  be  the  delivery 
by  said  trustees  to  the  persons  entitled 
thereto,  of  trust  certificates  hereinafter 
provided  for,  equal  at  par  value  to  the 
par  value  of  the  stocks  of  the  said 
Standard  Oil  zovs\^2lX\\^%  so  received  by 
said  trustees,  and  equal  to  the  appraised 
value  of  the  stocks  of  other  companies 
or  partnerships  delivered  to  said  trus- 
tees. (The  said  appraised  value  shall 
be  determined   in    a    manner    agreed 


680 


Volume  5. 


6433. 


CORPORA  TIONS. 


6433. 


the  same  as  those  whose  names  were  subscribed  to  the  other  agree- 
ment aforesaid,  entered  into*  and  became  a  party  to,  carried  out  and 
still  continues  to  observe,  perform  and  carry  out,  a  supplemental 
trust  agreement,  which,  if  not  in  words  and  figures,  is,  in  substance 
and  effect,  as  follows:    {Here  was  set  supplemental  trust  agreement.)^ 


upon  by  the  parties  in  interest  and  the 
said  trustees.)  It  is  understood  and 
agreed,  however,  that  the  said  trustees 
may.  with  any  trust  funds  in  their 
hands,  in  addition  to  the  mode  above 
provided,  purchase  the  bonds  and  stocks 
of  other  companies  engaged  in  business 
similar  or  collateral  to  the  business  of 
said  Standard  (9/7  companies,  on  such 
terms  and  in  such  mode  as  they  may 
deem  advisable,  and  shall  hold  the  same 
for  the  benefit  of  the  owners  of  said  trust 
certificates,  and  may  sell,  assign,  trans- 
fer and  pledge  such  bonds  and  stocks 
whenever  they  may  deem  it  advanta- 
geous to  said  trust  so  to  do. 

III.  The  trusts  upon  which  said 
stocks  shall  be  held,  and  the  number, 
powers  and  duties  of  said  trustees,  shall 
be  as  follows: 

(I),  (2),  (3),  (4),  (5),  (6).  {Providing  for 
the  number  of  trustees,  their  terms  of 
office,  their  manner  of  election,  and  right 
to  vote.) 

(7).  (Providing  for  the  annual  and 
special  meetings  of  the  owners  of  trust 
certificates,  also  for  the  making,  amend- 
ment and  repeal  of  by-laws.) 

(8),  (9).  {Providing  for  the  filling  of 
vacancies  in  the  board  of  trustees.) 

(10).  {Providing  for  the  transfer  and 
vesting  of  stock  when  a  change  shall  occur 
in  the  board.) 

(11),  (12).  (Providing  for  the  prepara- 
tion and  issuance  of  certificates,  to  be 
known  as  Standard  Oil  certificates.) 

(13).  (Relating  to  the  sale,  assignment, 
transfer  and  purchase  of  stocks. ) 

(14).  (Providing  for  the  disposal  of  in- 
terest and  dividends ,  and  the  keeping  of 
accounts,  etc.) 

(15).  (Providing  for  the  general  super- 
vision of  the  affairs  of  the  Standard  Oil 
Company,  and  the  election  by  the  trustees, 
of  themselves,  to  positions.) 

(16).  (Providing  for  the  appointment  of 
committees  and  the  number  of  trustees 
who  may  exercise  powers,  etc.) 

(17).  (The  trustees  may  employ  and  pay 
all  such  agents  and  attorneys  as  thev  deem 
necessary  in  the  management  of  said  trust.) 

(18).  (Providing  for  salaries  of  trus- 
tees.) 

(19).  (Naming  the  principal  office,  and 
for  the  adoption  of  rules  and  regulations 


pertaining  to  the  meetings  of  the  board, 
and  for  the  election  of  officers,  and  the 
management  of  the  trust.) 

(20).  (Providing  for  an  annual  state- 
ment of  trust  affairs,  and  for  the  winding 
up  of  the  trust  upon  its  termination.) 

(21),  (22).  (Providing  for  the  continu- 
ance of  the  trust  or  its  termination  after 
ten  years,  and  the  distribution  of  the 
property  and  assets.) 

(23).  This  agreement,  together  with 
the  registry  of  certificates,  books  of  ac- 
counts, and  other  books  and  papers 
connected  with  the  business  of  said 
trust,  shall  be  safely  kept  at  the  prin- 
cipal office  of  said  trustees.  (Signatures 
omitted.) 

1.  The  supplemental  tmst  agreement 
referred  to  in  the  text  is  as  follows: 

"  Whereas,  in  and  by  an  agreement 
da.ted  January  2,  x%82.  and  known  as 
the  Standard  Trust  agreement,  the 
parties  thereto  did  mutually  covenant 
and  agree,  inter  alia,  as  follows,  to  wit: 
That  corporations  to  be  known  as 
Standard  Oil  companies  of  various 
states  should  be  formed,  and  that  all 
of  the  property,  real  and  personal,  as- 
sets and  business  of  each  and  all  of  the 
corporations  and  limited  partnerships 
mentioned  or  embraced  in  class  first  of 
said  agreement  should  be  transferred 
to  and  vested  in  the  several  Standard 
Oil  companies;  that  all  of  the  property, 
assets  and  business  in  or  of  each  par- 
ticular state  should  be  transferred  to 
and  vested  in  the  Standard  Oil  Company 
of  that  particular  state,  and  the  direct- 
ors and  managers  of  each  and  all  of 
the  several  corporations  and  associa- 
tions mentioned  in  class  first  were 
authorized  and  directed  to  sell,  assign, 
transfer  and  convey  and  make  over  to 
the  Standard  Oil  Company,  or  com- 
panies, of  the  proper  state  or  states,  as 
soon  as  said  corporations  were  organ- 
ized and  ready  to  receive  the  same,  all 
the  property,  real  and  personal,  assets 
and  business  of  said  corporations  or 
associations;  and,  whereas,  it  is  not 
deemed  expedient  that  all  of  the  com- 
panies and  associations  mentioned 
should  transfer  their  property  to  the 
said  Standard  Oil  companies  at  the 
present  time,  and  in  case  of  some  com- 


681 


Volume  5. 


6433.  CORPORATIONS.  6433. 

Plaintiff  further  avers,  that  the  nine  persons  who  were  appointed 
and  named  as  trustees  in  and  under  the  provisions  of  said  trust 
agreements,  accepted  their  several  positions  and  entered  upon 
the  discharge  of  the  trust  duties  therein  mentioned;  and  some  of 
said  trustees  and  others,  to  the  number  of  nine,  whose  names  are 
unknown  to  the  plaintiff,  have  been  reappointed  and  appointed  at 
various  times  since  the  execution  of  said  trust  agreements,  so  that 
nine  trustees  have  been  ever  since  then,  and  still  are,  acting  thereunder, 
and  each  and  all  of  said  trustees  have  been,  and  are,  nonresidents  of 
the  state  of  Ohio;  that  the  offices  and  principal  place  of  business  of 
said  trustees  have  been,  ever  since  the  execution  of  said  trust  agree- 
ments, and  still  are,  in  the  city  of  New  York,  and  the  elections  of 
trustees  and  business  transacted  by  them  in  their  meetings  have 
been  had  and  done  in  said  city  of  New  York;  and  that  plaintiff  had 
no  knowledge  of  the  existence  of  either  of  the  aforesaid  trust  agree- 
ments, or  of  the  acts  hereinbefore  recited,  until  the  latter  part  of  the 
year  x2>89. 

Plaintiff  further  avers,  that  by  reason  of  defendant's  stockholders, 
directors  and  officers  signing  and  entering  into  said  trust  agreements 
and  carrying  out  their  provisions  and  surrendering  their  stock  in 
defendant  and  accepting  in  lieu  thereof  certificates  issued  by  the  nine 
trustees  aforesaid,  and  permitting  the  corporate  powers,  business 
and  property  of  the  defendant  to  be  exercised,  conducted  and 
controlled  by  said  trustees  in  manner  aforesaid,  and  by  reason 
of  the  acts  and  omissions  of  defendant  hereinbefore  recited,  said 
defendant  has  forfeited  its  corporate  rights,  privileges,  powers  and 
franchises. 

Wherefore,  plaintiff  prays  that  defendant  be  found  and  adjudged 
to  have  forfeited  and  surrendered  its  corporate  rights,  privileges, 
powers  and  franchises,  and  that  it  be  ousted  and  excluded  therefrom, 
and  that  it  be  dissolved,  and  that  such  other  relief  be  granted  in 
the  premises  as  to  the  court  may  seem  just  and  proper. 

David  K.  Watson,  Attorney-General. 

panics  and  associations  it  may  never  transfers  shall  take  place,  if  at  all,  and 

be    deemed    expedient   that    the   said  until  said  trustees  shall  so  decide,  each 

transfer  should  be  made,  and  said  com-  of  said  companies  shall  remain  in  ex- 

panies  and  associations  go  out  of  ex-  istence    and    retain    its    property    and 

istence;    and    whereas    it    is    deemed  business,  and  the   trustees   shall   hold 

advisable  that  a   discretionary   power  the  stocks  thereof  in  trust,  as  in  said 

should  be  vested  in  the  trustees  as  to  agreement  provided.     In    the   exercise 

when  such  transfer  or  transfers  should  of  said  discretion  the  trustees  shall  act 

take  place,  if  at  all.  by  a  majority  of  their  number,  as  pro- 

Now    it   is   hereby   mutually  agreed  vided   in    said   trust   agreement.      All 

between  the  parties  to  the  said  trust  portions  of  said  trust  agreement  relat- 

agreement,  and  as  supplementary  there-  ing  to  this  subject  shall  be  considered 

to,  that  the  trustees  named  in  the  said  so  changed  as  to  be  in  harmony  with 

agreement  and  their  successors  shall  this  supplemental  agreement, 
have  the  power  and  authority  to  decide         In  witness  whereof,  the  said   parties 

what  companies  shall  convey  their  said  have  subscribed  this   agreement,    this 

property  as  in  said  agreement  contem-  4th  day  oi  January,  18S2." 
plated,  and  when   the  said  sales  and  {Signatures  omified.) 

683  Volume  5. 


I-  Amended  Complaint. 


6434.  CORPORA  TIONS.  6434. 

cc.  Sugar  Trust. 

Form  No.  6434.' 

Supreme  Court  of  the  State  of  New  York. 

The  People  of  the  State  of  New " 

York,  plaintiffs, 

against 

The  North  River  Sugar  Refining 

Company,  defendant. 

The  people  of  the  state  of  New  York,  by  their  attorney-general, 
upon  leave  of  court  duly  granted,  in  this  their  amended  covci^^\di\^\X.,  on 
information  and  belief,  allege:* 

I.  For  a  first  cause  of  action,  that  defendant  is  a  corporation 
created  and  organized  under  and  pursuant  to  the  act  of  the  legis- 
lature of  New  York,  passed  February  17,  1848,  and  entitled  "An 
Act  to  authorize  the  formation  of  corporations  for  manufacturing, 
mining,  mechanical  and  chemical  purposes,"  and  the  acts  amenda- 
tory thereof;  that  defendant's  certificate  of  incorporation,  filed  on 
or  about  the  ninth  day  of  February,  iS65,  declares  its  name  to  be 
"  The  North  River  Sugar  Refining  Company,"  its  place  of  business  in 
the  city  of  New  York,  and  its  object  the  manufacture  and  sale  of 
sugar,  syrups  and  molasses;  that  in  violation  of  law  and  in  abuse  of 
its  powers,  and  in  the  exercise  of  privileges  and  franchises  not  con- 
ferred upon  it  defendant,  on  or  about  ^t.  first  day  of  October,  i887, 
in  the  city  of  New  York,  together  with  the  other  subscribers  thereto, 
entered  into  and  became  a  party  to  and  carried  out  the  following 
agreement,  namely:  (/fere  was  set  out  the  agreement.)!^ 

That  thereafter,  and  under  and  pursuant  to  the  provisions  of  said 
agreement,  the  capital  stock  of  defendant  was  transferred  to  said 
board.  The  Sugar  Refineries  Company,  and  in  lieu  thereof  certificates 
were  issued  by  said  board;  that,  pursuant  to  said  agreement,  such  of 
the  parties  thereto  as  were  not  then  incorporated  became  corporate 
bodies,  and  their  capital  stock  was  transferred  to  said  board  and  cer- 
tificates issued  in  lieu  thereof;  that  the  greater  part  in  number  and 
value  of  said  certificates  is  owned  by  the  members  of  said  board; 
that  by  means  of  said  agreement,  and  the  powers  thereby  conferred 
upon  said  board,  said  board  monopolizes  the  manufacture  and  sale 
of  refined  sugar  in  the  state  of  New  York,  and  is  enabled  to  control  at 
will  the  production  and  price  of  said  sugar  in  said  state  and  in  the 

1.  This  complaint  was  copied  from  the  duties  to  such  an  extent  as  to  justify  a 
record  in  People  z/.  North  River  Sugar  judgment  of  dissolution. 
Refining  Company,  121  N.  Y.  582.  The  2.  The  afpreement  referred  to  in  the  text 
complaint  alleged  that  defendant  was  a  is  a  lengthy  instrument  in  writing  de- 
corporation  organized  under  the  general  nominated  a  "  Deed  "  providing  for  a 
Manufacturing  act,  and  that  in  viola-  board  called  "  The  Sugar  Refineries 
tion  of  law  and  in  abuse  of  its  powers  Company,"  stating  the  objects  of  the 
became  a  party  to  an  illegal  agreement,  company,  defining  the  duties  of  the 
The  court  of  appeals  affirmed  the  judg-  oflScers,  enumerating  the  plans,  fiscal 
ment  of  the  general  term  of  the  su-  arrangements,  etc.  For  an  agreement 
preme  court,  finding  that  the  corpora-  of  analogous  provisions  and  import 
tion  had  violated  its  charter  and  failed  see  supra,  note  i,  p.  679. 
in    the   performance   of    its   corporate 

683  Volume  5. 


6435.  CORPORATIONS.  6435. 

United  States',  that,  in  exercise  of  the  powers  conferred  by  said  agree- 
ment, said  board  controls  the  action  of  defendant  and  the  other  cor- 
porations, parties  to  said  agreement,  in  the  conduct  of  their  business 
and  controls  and  regulates  the  production  and  price  of  refined  sugar 
in  the  state  of  New  York  and  in  the  United  States  \  that  in  the  exer- 
cise of  the  said  powers  said  board  has  limited  the  production  and 
increased  the  price  of  said  sugar  in  said  state  and  in  said  United 
States,  and  that  said  agreement  constitutes  a  combination  to  do  an  act 
injurious  to  trade  and  commerce,  to  which  combination  defendant  is 
a  party. 

II.  For  another  and  separate  cause  of  action,  plaintiffs,  repeating 
the  allegations  of  the  preceding  count,  aver  that,  for  and  during  the 
year  i2>88,  defendant  wilfully  neglected  and  omitted,  and  still  wilfully 
neglects  and  omits,  to  make,  file  and  publish  any  report  as  prescribed 
and  required  by  section  twelve  of  the  act  by  and  under  which  defend- 
ant was  created  a  corporation. 

III.  For  another  and  separate  cause  of  action,  plaintiffs,  repeating 
the  allegations  of  the  first  above  count,  aver  that,  in  December,  iS87, 
defendant  went  out  of  business  and  ceased  its  operations,  and  thence- 
forth to  the  present  time  omitted  and  neglected  to  refine  or  manu- 
facture or  sell  sugar,  syrups  or  mo/asses,  and  has  failed  and  still  fails 
to  do  any  business  or  to  exercise  its  powers. 

Wherefore,  plaintiffs  demand  judgment  that  defendant,  the  North 
River  Sugar  Refining  Company,  be  dissolved,  its  charter  vacated,  and 
its  corporate  existence  annulled;  that  it  be  enjoined  from  acting  as  a 
corporation,  and  a  receiver  of  its  property  be  appointed,  and  for  such 
other  and  further  relief  as  may  be  appropriate,  with  costs. 

Chas.  F.  Tabor,  Attorney-General, 
Plaintiff's  Attorney. 

{d')  Improper  Consolidation,  Unlaivful  Lease  and  Nonuser. 

Form  No.  6435. 

(Precedent  in  State  v.  Atchison,  etc.,  R.  Co.,  24  Neb.  143.)' 
[In  the  Supreme  Court  of  the  State  of  Nebraska. 
The  State  of  Nebraska,  ex  rel.  William " 
Leese,  attorney-general,  plaintiff, 
against 
The  Atchison  and  Nebraska  Railroad 
Company,  defendant. ^ 
Now   comes   William   Leese,    attorney-general    of    the    state    of 
Nebraska,  petitioner,  and   gives    the    court    to    understand   and    be 
informed  :]3 

I,  That]  on  the  25th  day  of  April,  a.  d.  i87i,  articles  of  incorpora- 

1.  TMs  petition  was  sustained  against  in  a  proceeding  of  this  nature  to  forfeit 
a  demurrer  based  upon  two  grounds:  franchises  and  oust  the  corporation 
I3t,  That  there  is  a  defect  of  parties  de-  from  its  franchises  for  misuser  or  non- 
fendant.  2d,  That  the  facts  stated  in  user  is  the  corporation  itself.  State  v. 
the  information  are  not  sufficient  to  Atchison,  etc.,  R.  Co.,  24  Neb.  143. 
entitle  the  state  to  the  relief  prayed  for  3.  The  words  in  [  ]  do  not  appear  in 
against  the  defendant.  the  reported  case,  but  have  been  added 

2.  The  only  necessary  party  defendant  to  complete  the  form. 

684  Volume  5. 


Information  in  the  nature  of 
Quo  Warranto. 


6435.  CORPORATIONS.  6435. 

tion  were  duly  filed  in  the  pffice  of  the  secretary  of  state  of  Nebraska 
hy  A.  J.  Cropsey,  A.  A.  Egbert,  T.  E.  Calvert,  George  Morrison  and 
O.  Chanute,  duly  incorporating,  under  the  laws  of  the  state  of 
Nebraska,  the  Atchison,  Lincoln  and  Columbus  Railroad  Company. 
[That]  the  object  and  purpose  of  this  company  wa^  (^stating  object  of 
incorporation').^  A  copy  of  the  articles  of  incorporation  is  attached 
to  the  petition  as  an  exhibit. 

II.  That  on  the  18ih  day  of  August,  a.  d.  i87i,  and  long  before 
the  aforesaid  line  of  railroad  was  completed,  the  said  Atchison,  Lin- 
coln and  Columbus  Railroad  Company  consolidated  all  of  its  stock  and 
property,  of  every  kind  and  nature,  with  the  stock  and  property  of 
every  kind  of  the  Atchison  and  Nebraska  Railroad  Company,  a  cor- 
poration organized  under  the  laws  of  the  state  of  Kansas,  and  it  was 
agreed  in  said  articles  of  consolidation,  a  copy  of  which  was  filed  in 
the  office  of  the  secretary  of  state  of  this  state,  that  the  aforesaid 
two  consolidating  companies  should  constitute  but  one  corporation 
in  law,  and  to  be  known  and  named  the  Atchison  and  Nebraska 
Railroad  Company.  A  copy  of  the  said  articles  of  consolidation  is 
attached  to  the  petition,  and  that  part  of  the  line  of  railroad  of  the 
defendant  lying  and  being  in  the  state  of  Nebraska  is  sought  to  be 
affected  by  this  proceeding. 

III.  Your  petitioner  would  further  give  the  court  to  understand 
and  be  informed  that,  at  the  time  of  the  incorporation  of  the  Atchison, 
Lincoln  and  Columbus  Railroad  Company,  as  well  as  at  the  time  of  the 
consolidation,  the  financial  circumstances  of  the  defendant  were 
limited,  and  they  were  unable  to  build  the  said  railroad  from  the 
south  line  of  the  state  of  Nebraska  to  Columbus,  as  aforesaid,  and  the 
said  company  applied  to  the  tax-payers  of  the  several  counties 
through  which  said  line  of  railroad  was  to  pass  for  aid,  to  enable  the 
said  company  to  construct  and  maintain  their  railroad  as  aforesaid. 

IV.  That  the  tax-payers  and  inhabitants  along  said  proposed  line 
of  railroad,  for  the  purpose  of  obtaining  a  railroad  and  getting  direct 
communication  with  Kansas,  Missouri,  Illinois,  and  other  eastern  and 
southern  states,  did,  as  in  such  cases  made  and  provided,  vote,  issue, 
and  deliver  to  the  defendant  a  large  amount  of  ten  per  cent,  coupon 
bonds,  aggregating,  from  the  counties  of  Richardson,  Pawnee,  John- 
son, Gage  and  Lancaster,  more  than  ^500,000. 

V.  That  on  or  about  the  15th  day  of  January,  i87^,  said  railroad 
was  completed  to  Lincoln,  in  Lancaster  county,  Nebraska,  and  from 
said  day  until  January  1,  iS80,  was  operated  and  maintained  as  a 
competing  line  of  railroad  with  the  Burlington  and  Missouri  River 
Railroad  Company  in  Nebraska  (a  corporation  organized  under  the 

1,  The  object  and  purpose  of  the  com-  of  the  state  of  Nebraska,  where  the 
pany  as  stated  in  the  information  was  Atchison  and  Nebraska  Railroad  Com- 
"  to  construct,  maintain  and  operate  a  pany  crosses  said  state  line,  and  from 
line  of  railroad,  with  single  or  double  thence  running  northward  and  west- 
tracks,  and  with  all  the  necessary  ward  through  the  counties  of  Richard- 
branches,  fences,  bridges,  warehouses,  son.  Pawnee,  Gage,  Johnson,  Lancaster, 
elevators,  station  houses,  and  such  other  Seward  and  Butler,  by  way  of  Lincoln, 
appurtenances  as  might  be  thought  to  the  town  of  Columbus,  at  the  union 
necessary  in  extending  said  line  of  rail-  of  the  Pacific  railway  in  Platte  county." 
road  from  a  point  on  the  southern  line 

685  Volume  5. 


6435.  CORPORATIONS.  6436. 

laws  of  this  state),  for  all  the  freight  and  passenger  traffic  lying  and 
being  between  the  road  of  this  defendant  and  a  branch  line  of  the 
aforesaid  Burlington  and  Missouri  Riz'er  Rai/roaJ  Company  running 
from  (describing  branch  /ines).^  That  during  all  of  the  time  aforesaid 
there  was  a  strong  competition  between  the  aforesaid  lines,  thereby 
producing  a  reasonable  but  low  rate  of  charges  for  freight  and 
passenger  traffic,  and  the  people  living  within  the  territory  above  de- 
scribed received  a  great  advantage,  by  reason  of  the  low  and  reason- 
able rates  charged  for  the  transportation  of  freight  and  passengers 
on  the  defendant's  railroad,  resulting  from  the  competition  aforesaid. 
That  by  the  competition  aforesaid,  the  freight  belonging  to  the 
people  using  defendant's  line  of  railroad  was  shipped  south  to  the 
city  of  Atchison^  in  Kansas^  and  from  there  connected  with  other  lines 
of  railroads  that  were  competing  with  the  aforesaid  Burlington  and 
Missouri  River  Railroad  for  Chicago  freight,  and  for  other  points 
east.  That  freight  coming  from  Chicago  and  other  eastern  points  to 
the  people  living  along  the  line  of  the  defendant's  railroad  was  brought 
at  greatly  reduced  rates,  and  all  the  people  living  in  the  southeastern 
quarter  of  our  state  received  the  many  advantages  derived  from 
competing  railroads. 

VI.  That  on  tht  first  day  oi  January^  a.  d.  x%80^  as  aforesaid,  for 
the  purpose  of  defrauding  the  people  living  along  the  line  of  their 
railroad,  and  for  the  purpose  of  destroying  the  competition  as 
aforesaid,  the  said  defendant,  the  Atchison  and  Nebraska  Railroad 
Company,  disregarding  its  duties  to  the  state  and  to  the  public,  unlaw- 
fully and  wilfully  entered  into  an  agreement  with  the  aforesaid  Bur- 
lington and  Missouri  Riz'er  Railroad  Company  to  (stating  substance  of 
agreement).^  A  copy  of  said  lease  is  attached  to  and  made  a  part  of 
the  petition.  In  pursuance  with  the  terms  of  said  lease,  the  defend- 
ant, on  said  day,  gave  to  the  said  Burlington  and  Missouri  River  Rail- 
road Company  full  and  absolute  possession  and  control  of  all  its  railroad, 
roadway,  rights,  privileges  and  franchises,  its  earnings,  and  property 
of  every  description.  And  that  ever  since  the  1st  day  of  January, 
A.  D.  iiSo,  the  defendant  company  has  utterly  and  wilfully  failed  and 
neglected  to  maintain  or  operate  their  said  railroad  or  any  other  rail- 
road in  this  state,  and  has  failed  in  the  discharge  of  its  duty  to  the 
state  and  to  the  public  during  all  of  said  time,  whereby  the  rights, 
privileges  and  franchises  of  said  defendant  in  the  state  of  Nebraska 
have  become  and  are  subject  to  forfeiture. 

1.  The  branch  lines  referred  to  in  the  tion,  to  the  above  last  named  railroad 
text  were  those  running  from  Lincoln,  company,  and  on  said  last  named  day 
in  Lancaster  county,  to  Nemaha  City  the  defendant  did  grant,  lease  and  de- 
in  Nemaha  county  by  way  of  Nebraska  mise  to  the  said  Burlington  and  Mis- 
City,  on  the  east  side,  and  with  a  branch  souri  River  Railroad,  for  the  full  term 
line  of  said  Burlington  and  Missouri  of  nine  hundred  and  ninety-nine  years. 
River  Railroad  Company  running  from  all  of  their  railroad,  roadway,  lands 
Lincoln  by  way  of  Crete  to  Beatris  in  connected  with  the  use  and  operation  of 
Gage  county,  on  the  west  side  of  the  their  road,  and  all  machine  shops,  de- 
defendant's  line.  pots,  and  all  easements   and  appurte- 

2.  The  agreement  referred  to  in  the  text  nances  thereunto  belonging,  as  well  as 
was  to  "  lease  their  said  line  of  railroad,  all  such  property  as  should  thereafter 
and   all  their   rights,    privileges,  fran-  be  acquired." 

chises,  and  property  of  every  descrip- 

686  Volume  5. 


6i35.  CORPORATIONS.  6435. 

VII.  That  afterwards,  on  the  5th  day  of  ^/ri/,  i&^O,  the  defendant 
conveyed  and  assigned  absoJutely  all  of  its  lands,  bonds,  moneys,  and 
property  of  every  description,  not  included  in  the  lease  hereinbefore 
mentioned,  to  the  aforesaid  Burlington  and  Missouri  Rizer  Railroad 
Company.  A  copy  of  said  conveyance  and  assignment  is  attached  to 
and  made  a  part  of  the  petition. 

VIII.  And  your  petitioner  would  further  show  to  the  court  that 
the  defendant's  line  of  railroad  and  the  line  owned  by  the  Burlington 
and  Missouri  River  Railroad  Company  in  Nebraska  were  not  connecting 
or  continuous  lines  of  railroads,  but  in  truth  and  in  fact  the  two  roads 
were  parallel  and  competing  lines,  and  the  lease,  conveyance  and 
assignment  as  aforesaid  were  and  are  ultra  x'ires,  in  violation  of  sec- 
tion three  of  article  eleven  of  the  constitution  of  the  state  of  Nebraska, 
and  against  public  j)olicy. 

IX.  That  on  the  said ^rj/ day  oi  January,  a.  d.  i%80,  the  aforesaid 
Burlington  and  Missouri  River  Railroad  Company  in  Nebraska  sold, 
assigned  and  transferred  all  of  their  railroads,  leaseholds,  rights  of 
action,  contracts,  stock,  franchises,  and  all  other  property  of  every 
description  whatsoever,  to  the  Chicago^  Burlington  and  Quincy  Railroad 
Company.^  a  foreign  corporation,  incorporated  under  the  laws  of  the 
state  of  Illinois  and  Iowa,  and  not  incorporated  under  the  laws  of 
Nebraska,  nor  has  it  filed  a  copy  of  its  articles  of  incorporation  with 
the  secretary  of  state  of  Nebraska.  A  copy  of  the  above  mentioned 
deed  of  sale  and  assignment  is  attached  to  the  petition  and  made  a 
part  thereof. 

X.  That  after  the  defendant  made  the  lease  of  its  railroad  and  the 
transfer  of  all  its  property,  as  aforesaid,  the  management  and  control 
of  the  defendant's  line  was  maintained  and  operated  by  the  said  Bur- 
lington and  Missouri  River  Railroad  Company,  and  by  the  transfer  of 
the  said  last  named  company  to  the  Chicago,  Burlington  and  Quincy 
Railroad  Company,  and  the  said  Chicago,  Burlington  and  Quincy  Rail- 
road Company  still  continues  to  operate  and  maintain  the  defendant's 
line  in  this  state,  thereby  consolidating  all  of  the  property,  franchises 
and  earnings  of  the  defendant's  line  with  the  aforesaid  competing  and 
parallel  lines  of  the  said  Burlington  and  Missouri  Riier  Railroad  Com- 
pany, as  now  owned  and  controlled  by  said  Chicago,  Burlington  and 

Quincy  Railroad  Company. 

XI.  That  from  and  after  the  date  of  the  above  transfer,  to  wit, 
January  1,  iSSO,  the  rates  of  freight  for  transportation  on  the 
defendant's  lines  were  increased  by  the  lessee  and  its  assignee  from 
^/fy  to  seventy-five  per  cent,  of  the  rate  charged  by  the  defendant, 
and  in  many  cases  it  was  doubled.  That  all  competition  was  destroyed 
in  the  southeastern  quarter  of  the  state  by  reason  of  the  aforesaid 
transfers,  and  all  the  grain,  stock,  and  other  classes  of  transfer 
along  the  defendant's  line,  shipped  to  eastern  and  southern  points, 
was  carried  north  by  the  lessee  and  the  volume  of  business  done 
along  the  defendant's  line  was  diverted  outside  of  the  usual  channel 
of  trade.  That  the  i>eople  living  along  the  line  of  the  defendant's 
road  are  defrauded  by  the  transfers  aforesaid,  and  the  large  amount 
of  bonds  voted  and  delivered  to  the  defendant,  to  aid  in  the  con- 
struction  of   the   railroad,   are  without  consideration,  and  yet  the 

WSl  FofauBcs. 


6436.  CORPORATIONS.  6436. 

said   bonds   are   still   presumed  to  be  a  legal  liability  against  said 
counties. 

XII.  That  the  defendant  corporation,  the  Atchison  and  Nebraska 
Railroad  Company,  has  ceased  to  maintain  and  operate  any  railroad 
in  the  state  of  Nebraska.  That  said  railroad  corporation,  the  Atchi- 
son, Lincoln  and  Columbus  Railroad  Company,  as  consolidated  with 
the  Atchison  and  Nebraska  Railroad  Company,  has  wilfully  failed  and 
neglected  to  keep  and  maintain  any  railroad  in  this  state,  as  by  their 
articles  of  incorporation  they  are  required  to  do,  but  on  the  con- 
trary has  abandoned  its  lawful  business,  and  the  end  and  object  for 
which  it  was  created,  whereby  the  rights  and  privileges  and  fran- 
chises of  said  defendant  corporation  in  this  state  have  become  sub- 
ject to  forfeiture.  Wherefore  plaintiff  prays  that  the  corporate 
rights,  privileges  and  franchises  may  be  declared  forfeited,  and  the 
said  defendant  be  ousted  therefrom.  That  all  the  rights,  privileges 
and  franchises  of  the  defendant  within  the  state  of  Nebraska  be  can- 
celed and  annulled,  and  that  said  corporation  be  dissolved.  That 
the  court  may  appoint  three  trustees  to  take  charge  of  the  property 
of  said  corporation  to  collect  the  debts,  and  pay  the  liabilities,  if 
any,  and  the  surplus  paid  into  the  state  treasury  for  the  benefit  of 
the  school  fund,  as  in  other  cases  of  forfeiture.  And  for  such  other 
and  further  relief  as  equity  and  justice  may  require. 

[  William  Leese,  Attorney-General.] 

((f)  Improper  Use  of  Funds  by  Building  and  Loan  Association. 

Form  No.  6436. 
(Precedent  in  State  v.  Greenville  Bldg.,  etc.,  Assoc,  29  Ohio  St.  92.)' 

(^Title  of  court  and  cause  as  in  Form  No.  6433.) 

John  Little,  Attorney-General  of  the  State  of  Ohio,  upon  complaint 
to,  and  inquiry  by  him  in  that  behalf  made,  now  comes  and  gives  the 
court  here  at  the  December  term  thereof,  \^13,  to  understand  and  be 
informed  that  the  defendant,  the  Greenville  Building  and  Saving  Asso- 
ciation, is,  and  since  April  — ,  \%69,  has  been  an  incorporated  com- 
pany of  said  state,  formed  and  organized  under  the  act  of  the  general 
assembly  thereof,  entitled  "An  Act  to  enable  associations  of  persons 
to  raise  funds  to  be  loaned  among  their  members  for  building  home- 
steads and  for  other  purposes,  and  to  become  a  body  corporate;" 
and  that  it  has  continuously  hitherto  since  said  date,  within  said 
state,  to  wit,  at  the  county  of  Darke,  offended  against  the  laws  of 
the  state,  misused  its  corporate  authority,  franchises  and  privileges, 

1.  Judgment  was  entered  in  this  case  on  rate  of  interest,  and  from  using  its  funds 

the  several  findings  as  follows:    i.  That  in  loaning  the  same  to  or  in  purchas-. 

the  defendant  be  ousted  from  the  as-  ing  and  discounting  notes  of  persons 

sumed  right  of  allowing  any  member  other    than     members    or    depositors, 

more  than    twenty  shares   of  stock  in  3.  That  defendant  be  ousted  from  the 

his  own  right.     2.  That  defendant  be  assumed   right   of  fixing  a   minimum 

ousted  from  the  assumed  right  of  using  premium  upon  loans  and  refusing  to 

its  funds  in  making  loans  to  members  grant  loans  to  members  unless  the  pre- 

or  depositors,    upon   their  promissory  mium  paid  equals  or  exceeds  the  amount 

notes,  at  the  rates  greater  than  the  legal  so  fixed. 

688  Volume  5. 


643  7 .  CORPORA  TIONS.  643  7. 

not  granted  to  it,  and  espegially  in  the  following  particulars  and 
matters,  to  wit: 

1.  It  has  unlawfully  allowed  its  members  to  hold  more  than  twenty 
shares  of  stock  each  in  their  own  right,  and  it  still  doth  the  like. 

2.  It  has  unlawfully  used  its  funds  in  buying  orders  and  bonds  and 
in  discounting  notes  and  mortgage  securities  and  commercial  paper, 
in  doing  a  general  banking  business,  and  in  loaning  its  funds  to  per- 
sons other  than  its  members  and  depositors,  by  discounting  their 
notes,  orders,  and  securities,  and  it  still  doth  the  like. 

3.  It  has  unlawfully  loaned  its  funds  to  others  than  its  members 
and  depositors,  and  charged  and  received  on  such  loans  usurious 
rates  of  interest,  and  it  still  doth  the  like. 

4.  It  has  unlawfully  refused  and  declined  to  loan  its  funds  to  its 
members  for  use  in  building  homesteads,  and  for  other  purposes,  and 
it  still  doth  the  like.  All  which  things  the  defendant  will  continue 
to  do  unless  prevented  by  the  judgment  of  this  court. 

Wherefore  the  plaintiff  prays  the  process  and  judgment  of  the 
court  in  the  premises,  and  for  all  proper  relief. 

John  Little,  Attorney-General. 

(/)  Insolvency, 
aa.  At  Instance  of  Attorney-General. 

Form  No.  6437.' 

(^Title  of  court  and  cause,  and  commencement  as  in  Form  No.  61^8 Jf. 
to*.) 

I.  That  at  the  times  (^continuing  as  in  paragraph  1  of  Form  No. 
6U0). 

1.  New    York.  —  Code  Civ.    Proc,  §  and  by  virtue  of  its  said  organization, 

1785  et    seq.     See  also  list  of   statutes  located  and  having  its  principal  busi- 

cited  supra,  note  2,  p.  65S.  ness  office  in  the  Guaranty  Loan  Build- 

Insolvent    Banking    Cori>oration.  —  In  i«§,  in  the  city  of  Minneapolis  in   the 

State    V.   Bank    of   New    England,    55  state  of  Minnesota,  with  a  capital  stock 

Minn.  139.  plaintiff's  complaint  prayed  of   one   hundred  thousand    dollars,    di- 

that  the  bank  be  adjudged  insolvent,  vided  \vi\.o  Jive  hundred  shares,  at  two 

and  that  an  injunction  issue  restrain-  ^wWr^'^  dollars  per  share, 

ing  it  from  exercising  corporate  rights,  2.  That  under  and  by  virtue  of  the 

etc.     On  appeal  from   the  district  court  authority  to  him  granted  under  chapter 

refusing  to  appoint  a  receiver  and  grant  37  of  the  General  Statutes  (1878)  of  the 

an  injunction,  the  case  was  reversed,  state  of  Minnesota,  and  the  acts  amend- 

the  court  holding  that  the  action  could  atory  thereto,  the  treasurer  of  the  state 

be    maintained     notwithstanding    the     of   Minnesota    deposited    on   the    

corporation    had  made  an  assignment     day  of  ,    189^,    in    said   bank   the 

under  the  insolvent  law.     A  complaint  public  funds  of  the  state  of  Minnesota. 

based  upon  the  facts  in  that  case  might        3.  That   on   the   day   of    , 

be  as  follows:  1892,  the  said  defendant,  the  said  bank, 

{Commencing    as  in   Form   No.  64jg,  became,   and  ever  since  that  time  has 

and  continuing  down  to  *.)  been,  and  now  is  insolvent  and  unable 

"  I.  That  the  defendant  the  Bank  of  to  pay  on  demand  checks,  drafts,  and 

New  Enoland  is  a  corporation,  having  orders  drawn  upon  it  in  the  due  course 

been  duly  organized  in  December,  \Zqi,  of   business,  and  that  on    the   twenty- 

under  chapter  3  of  the  General  Statutes  fourth  dd^y  oi  June,  iSgj,  the  said  de- 

(1878)   of   the  state  of  Minnesota,  and  fendant,  the  said  bank,  closed  its  doors 

having  acquired  banking  powers  under  and  suspended  payment. 

5  E.  of  F.  P.— 44.                        689  Volume  5. 


6437.  CORPORATIONS.  6437. 

II.  That  the  capital  stock  {continuing  as  in  paragraph  2  of  Form 
No.  6U0). 

III.  That  the  said  defendant  the  said  corporation  has  become 
insolvent,  and  is  unable  to  pay  its  debts  in  full,  and  has  violated  the 
various  provisions  of  the  statutes  and  acts  amendatory  thereto  by  and 
under  which  it  was  incorporated,  and  the  acts  of  the  legislature  bind- 
ing upon  it.  That  for  some  years  last  past  the  said  defendant  has 
been  greatly  embarrassed  financially  in  its  corporate  business,  and 
that  more  than  a  year  last  past  it  became  insolvent  and  was  unable 
to  discharge  its  debts  and  liabilities  in  full  as  they  became  due,  and 
nt)w  is,  and  ever  since  that  time  has  been  insolvent  and  unable  to 
pay  and  discharge  its  debts  and  liabilities  as  the  same  became  due. 

IV.  That  for  at  least  one  year  last  past  the  said  defendant  the 
said  corporation  has  been  unable  to  pay  and  discharge  its  notes  and 
other  evidences  of  debt,  and  during  said  year  has  neglected  to  pay 
and  discharge  its  notes  and  evidences  of  debt,  and  is  now  unable  to 
pay  and  discharge  the  same. 

V.  That  the  said  defendant  the  said  corporation  is  the  owner,  and 
has  in  its  possession,  a  large  quantity  of  real  and  personal  property, 
to  wit:  {Here  describe  the  property,  both  real  and  personal,  as  nearly  as 
can  be.^ 

VI.  That  the  said  defendant  the  said  corporation  is  largely  indebted 
to  divers  persons,  firms  and  corporations,  some  of  which  said  indebt- 
edness is  long  past  due  and  undischarged. 

VII.  That  the  said  defendant  the  said  corporation  cannot  dispose 
of  its  said  property  and  pay  said  indebtedness,  and  is  not  now  nor 
will  it  be  able  in  the  future  to  pay  and  discharge  the  same. 

VIII.  That  several  suits  for  debts  due  have  been  commenced 
against  the  said  defendant,  and  the  time  for  obtaining  judgments 
therein  will  expire  in  a  short  time,  to  wit,  by  the  first  day  oi  June, 
iS98,  and  that  if  such  judgments  are  allowed  to  be  obtained,  and  the 
executions  issued  thereon,  the  property  of  the  said  defendant  the 
said  corporation  will  be  levied  on  and  sold  at  a  great  sacrifice,  as 
plaintiff  verily  believes,  and  the  judgment  creditors  thereby  obtain  a 

4.  That  the  said  defendant  the  said  virtue  of  the  provisions  of  chapter  76  of 
corporation  was,  at  the  time  it  closed  the  General  Statutes  (1878)  of  the  state 
its  said  doors  and  suspended  payment     of  Minnesota. 

as  aforesaid,  indebted  to  the  state   of  Wherefore,   plaintiff   asks   judgment 

Minnesota  in  the  sum  of  sixty-one  thou-  against  the  said  defendant  the  said  cor- 

sand  three  hundred  and  thirty-one  do\\2t.rs  poration,  that  it,  the  said  New  England 

and  fifteen  cents,  and  to  divers  other  Bank,  be  adjudged  insolvent,  and  that 

creditors  large  sums  of  money.  an  injunction  be  granted  restraining  it 

5.  That  the  said  defendant  the  said  from  exercising  corporate  rights,  and 
corporation  owned  and  had  in  its  posses-  from  collecting  debts,  assets,  or  paying 
sion  money,  promissory  notes  of  great  out  or  transferring  any  of  its  moneys 
value,  choses  in  action,  and  property  or  property,  and  that  a  receiver  be  ap- 
worth  in  the  neighborhood  of  the  sum  pointed  to  take  charge  of  all  the  prop- 
of  one  hundred  thousand  dollars.  erties   of   the   said   corporation  and  to 

6.  That  the  said  state  of  Minnesota,  collect  and  convert  the  same  into 
through  Henry  W.  Childs,  its  attorney-  money,  and  that  the  plaintiff  may  have 
general,  commenced  this  action  against  such  other  and  further  relief  as  to  the 
the  defendant,  the  said  defendant  cor-  court  may  seem  just  and  proper." 
poration,  in  the  name  and  on  behalf  of  {Concluding  as  in  Form  No.  64jg,  infra.) 
the  state   of  Minnesota,  under  and  by 

690  Volume  5. 


6438. 


CORPORATIONS. 


6438. 


preference  over  the  other  creditors  of  the  said  defendant  the  said 
corporation,  and  the  other  creditors  thereby  be  greatly  injured. 

IX.  That  the  said  defendant  the  said  corporation,  in  its  present 
condition  of  financial  embarrassment  and  insolvency,  is  not  now  able 
to  and  cannot  continue  its  corporate  business  in  a  proper  manner, 
and  that  it  is  to  the  best  interests  of  all  the  creditors  and  stockholders 
of  the  said  corporation  that  the  same  be  dissolved  and  a  receiver 
appointed,  and  its  property  distributed  among  its  creditors  in  the 
manner  by  law  in  such  cases  made  and  provided. 
Wherefore  plaintiff  demands  judgment: 
First.  {Continuing  and  concluding  as  in  Form  No.  S^Jfi.^ 


bb.  At  Instance  of  Stockholder. 

Form  No.  6438.' 
(Precedent in  Peter  v.  Farrel  Foundry,  etc.,  Co.,  53  Ohio  St.  534.) 
In  the  Common  Pleas  Court  of  Lucas  County,  Ohio. 
William  Peter ^  Sarah  E.  Peter.,  Horace " 
S.  IValbridge,  S.  Cornell   Walbridge, 
Michael  J.    Cooney    and  Charles   R. 
Faben,  Jr.,  plaintiffs,  \  Petition. 

V. 

The  Union  Manufacturing  Company  , 

defendant. 

Plaintiffs  say  that  the  defendant  is  a  corporation  duly  organized  and 
existing  under  the  laws  of  the  state  of  Ohio;  that  said  corporation 


1.  Under  the  petition  in  this  case,  the 
court  of  common  pleas  forthwith  ap- 
pointed a  receiver,  who  at  once  went 
into  possession  of  the  property  and 
assets  of  the  defendant  corporation. 

Complaint  by  Stockholder. —  In  Swords 
V.  Northern  Light  Oil  Co  ,  17  Abb.  N. 
Cas.  (N.  Y.  Supreme  Ct.)  116,  the 
amended  complaint,  among  other  alle- 
gations, contained  the  following: 

"Seventeenth. —  That  the  corporation 
is  indebted  in  large  sums  of  money  to 
various  persons  to  these  plaintiffs  un- 
known, and  has  no  means  whatever  of 
liquidating  its  outstanding  indebted- 
ness, nor  has  it  had  the  means  to  do  so 
for  much  more  than  one  year  last  past. 
That  its  debts  have  remained  unsatis- 
fied for  many  years  and  will  continue 
to  remain  so  unsatisfied,  as  no  means 
are  at  the  command  of  the  corporation 
to  enable  it  ever  to  discharge  its  obli- 
gations by  reason  of  the  premises  the 
plaintiffs  charge;  that  the  said  corpora- 
tion has  become  and  is  insolvent  and 
unable  to  pay  its  debts,  and  has  re- 
mained insolvent  for  at  least  one  year 
last  past,  and  that   it  is  no  longer  en- 


titled to  act  as  a  corporation,  but  that 
it  is  subject  to  be  deprived  of  its  fran- 
chises and  rights  by  the  act  of  this 
court  and  be  dissolved. 

Eighteenth.  —  That  in  pursuance  of 
section  1786  of  the  Code  of  Civil  Pro- 
cedure, the  said  plaintiffs  duly  applied 
to  the  attorney-general  of  the  state  of 
New  York,  by  submitting  to  him  a 
written  statement  of  facts  verified  by 
oath,  reciting  in  substance  all  the  mat- 
ters and  things  alleged  herein,  and 
showing  grounds  for  an  action  under 
the  provisions  of  section  1785  of  the 
Code  of  Civil  Procedure,  and  request- 
ing the  said  attorney-general  to  com- 
mence an  action  in  the  name  and  in 
behalf  of  the  People  of  the  State  to 
dissolve  said  corporation.  That  more 
than  sixty  days  have  elapsed  since  such 
submission  was  made,  and  the  attorney- 
general  has  omitted  for  sixty  days  after 
the  written  statement  of  facts,  verified 
by  oath,  was  submitted  to  him  as  afore- 
said, to  commence  an  action  or  proceed- 
ing to  dissolve  the  said  corporation,  or 
any  action  specified  in  said  section  17S5, 
and  these  plaintiffs  as  stockholders  as 


691 


Volume  5. 


6438.  CORPORATIONS.  6438. 

was  organized  for  manufacturing  and  is  carrying  on  the  business  of 
manufacturing  and  selling  sewing  machines,  washing  boards  of  various 
kinds,  churns  and  flour- mill  machinery,  and  that  its  principal  place  of 
business  is  in  the  city  of  Toledo,  Lucas  county,  Ohio;  that  these  plain- 
tiffs are  all  stockholders  of  said  defendant  corporation;  that  the 
amount  of  the  paid  up  capital  stock  of  said  corporation  is  seven  hun- 
dred and  huenty-four  thousand  and  five  hundred  {$72^,500.00)  dollars 
and  is  divided  into  seven  thousand  two  hundred  and  forty-five  {7,245) 
shares  of  one  hundred  (^100.00)  dollars  each;  that  plaintiffs  are  the 
owners  of  three  hundred  and  forty-five  thousand  {^Jf5,000.00)  dollars  of 
said  paid  up  capital  stock,  and  are  the  owners  of  three  thousand  four 
hundred  and  fifty  (3,J!f50)  shares  thereof. 

Plaintiffs  further  say  that  for  no  one  of  the  three  last  preceding 
years  have  the  net  earnings  of  the  said  defendant  corporation  been 
sufficient  to  pay,  in  good  faith,  an  annual  dividend  of  six  per  centum 
upon  the  paid  up  capital  stock  of  the  said  corporation  over  and 
above  the  salaries  and  expenses  authorized  by  the.  by-laws  and  regu- 
lations of  the  said  corporation. 

Plaintiffs  further  say  that  the  bonded  debt  of  said  defendant  cor- 
poration, is  one  hundred  thousand  (^100,000.00)  dollars;  that  said 
defendant  corporation  has,  in  addition,  an  unsecured  indebtedness  of 
about  one  hundred  and  sixty  thousand  (^160,000.00)  dollars;  that  the 
said  corporation  is  indebted  to  these  plaintiffs  in  the  sum  of  not  less 
than  ffty  thousand  ($50,000.00)  dollars  in  the  aggregate;  that  a  large 
part  of  said  unsecured  indebtedness,  to  wit:  the  sum  of  not  lessy^z'i? 
thousand  ($5,000.00)  dollars,  is  now  due  and  unpaid  and  the  entire  bal- 
ance of  said  unsecured  indebtedness  will  become  due  within  a  period 
of  four  months  from  this  date  and  at  least  two-thirds  thereof  will 
become  due  within  a  period  of  sixty  (60)  days  from  this  date. 

Plaintiffs  further  say  that  the  said  defendant  corporation  is  wholly 
unable  to  pay  the  portion  of  said  indebtedness  now  past  due  and 
that  it  will  not  be  able  to  pay  the  balance  of  said  indebtedness  as 
the  same  matures  and  that  said  corporation  is  insolvent;  that  said 
corporation  has  a  large  plant  situated  in  Toledo,  Ohio,  consisting  of 

aforesaid  now  have  the  right  to  be-  tion,  wherein  and  whereby  it  was 
gin  an  action  in  their  own  name,  such  amongst  other  things  ordered  that 
as  is  by  the  said  sections  1785  and  1786  leave  be  and  is  hereby  granted  to  the 
provided.  That  thereupon,  upon  such  plaintiffs,  stockholders  in  the  said 
refusal  of  the  attorney-general  to  pro-  Northern  Light  Oil  Company,  to  begin 
ceed  as  aforesaid,  the  plaintiffs  duly  this  action  in  their  own  name,  pursuant 
applied  to  the  supreme  court  at  a.  special  to  the  provisions  of  section  1786  of  the 
term  thereof,  for  leave  to  bring  this  ac-  Code  of  Civil  Procedure,  and  that  they 
tion  in  their  own  name  against  the  de-  be  empowered  to  conduct  and  carry  on 
fendants,  and  thereupon  the  court  duly  the  same  with  like  force  and  effect  as  if 
granted  the  plaintiffs  such  leave  to  sue  the  said  action  had  been  commenced  by 
with  like  force  and  effect  as  if  the  action  the  attorney-general  in  the  name  and  in 
had  been  brought  by  the  attorney-  behalf  of  the  People  of  the  State  of  A'^fttf 
general  in  the  name  and  in  the  behalf  York,  as  by  reference  to  the  said  order, 
of  the  People  of  the  State  of  New  York,  when  the  same  shall  be  produced,  will 
and  thereupon  an  order  to  that  effect  more  fully  and  at  large  appear,  and  to 
was  duly  made  and  entered  on  5V//^w^<'r  which  these  plaintiffs  pray  leave  to 
2j,  iS8j,  at  a  Special  Term  of  this  court  refer,  if  need  be."  These  allegations 
held  at  the  court-house  in  the  city  and  were  held  to  be  sufficient  upon  de- 
county  of  AFew  York,  entitled  in  this  ac-  murrer. 

693  Volume  5. 


6438.  CORPORATIONS.  6438. 

an  interest  in  real  estate,  factories,  machinery,  tools  and  implements; 
that  it  has  been  and  is  now  engaged  in  its  said  business  of  manufac- 
turing stiving  machines,  washboards  of  various  kinds,  churtis  and  flour- 
mill  machinery,  and  selling  the  same  in  said  city  of  Toledo  and  elsewhere ; 
that  it  has  branch  offices  in  different  states  and  a  largfe  force  of  work- 
men engaged  in  said  business  in  various  capacities,  that  it  has  a  large 
number  of  unfinished  machines,  machinery,  washboards  and  churns  on 
hand  and  also  a  large  number  of  finished  machines,  machinery,  wash- 
boards and  churns  on  hand ;  that  it  has  a  considerable  amount  of  material 
on  hand  to  be  used  in  the  manufacture  of  such  machines,  machinery, 
washboards  and  churns,  and  in  finishing  said  articles  now  unfinished, 
and  said  corporation  is  unable  to  meet  its  liabilities  and  current 
obligations. 

Plaintiffs  further  say  that  by  reason  of  the  insolvent  condition  of 
said  corporation,  and  by  further  reason  of  the  liability  of  suits,  the 
defendant  corporation's  property  is  in  imminent  danger  of  being 
sacrificed  and  its  business  brought  to  a  standstill  at  a  great  and 
irreparable  loss  to  these  plaintiffs  and  all  other  creditors  and  stock- 
holders of  the  defendant  corporation. 

Plaintiffs  further  say  that  if  said  business  should  be  suddenly  sus- 
pended it  would  unavoidably  result  in  a  very  great  loss  to  all  the 
creditors  and  stockholders  of  the  said  defendant;  the  finished 
machines,  machinery,  washboards  and  churns  could  not  be  disposed  of 
except  at  great  sacrifice;  the  unfinished tnachines,  machinery,  washboards 
and  churns  would  be  an  almost  total  loss,  and  there  would  also  result 
great  loss  from  inability  to  carry  out  subsisting  contracts  for  ma- 
terial prepared  expressly  for  the  business  of  said  defendant  and 
which  would  have  practically  no  value  if  thrown  upon  the  general 
market. 

Plaintiffs  further  say  that  a  very  large  part  of  the  assets  of  said  de- 
fendant corporation,  to  wit,  about  sixty  thousand  ($60,000.00)  dollsLVs, 
consists  of  amounts  due  or  to  become  due  for  machines  sold  on  the 
installment  plan,  that  is  to  say,  machines  sold  to  be  paid  for  in 
small  weekly  or  monthly  installments,  the  corporation  retaining  the 
title  to  said  machines  until  the  purchase  price  is  fully  paid;  that  said 
accounts  could  not  be  sold  unless  at  a  very  small  per  centum  of  the 
face  value  thereof,  and  all  the  outstanding  accounts  due  or  to  become 
due  to  said  corporation  are  of  such  a  character  that  if  the  business 
of  said  corporation  should  be  at  once  suspended,  there  would  be  a 
very  great  loss  on  said  accounts  result  to  said  corporation  and  all  of 
its  creditors  and  stockholders,  growing  out  of  the  inability  to  col- 
lect said  accounts,  or  the  great  and  disproportionate  expense  it 
would  be  necessary  to  incur  in  collecting  the  same  or  any  part 
thereof. 

Plaintiffs  further  say  that  the  said  defendant  corporation  has  and 
is  possessed  of  a  good-will  in  its  said  business  which  is  of  a  very 
great  value  to  the  said  defendant,  its  stockholders  and  creditors, 
unless  the  same  shall  be  destroyed  in  consequence  of  said  defendant 
being  compelled  to  cease  business,  but  that  if  said  defendant  should 
be  compelled  to  cease  business,  the  said  good-will  would  be  a  total 
loss  to  said  defendant  corporation,  its  stockholders  and  creditors. 

693  Volume  5. 


6439.  CORPORATIONS.  6439. 

Plaintiffs  further  say  that  the  said  defendant  corporation  owns 
and  holds  valuable  rights,  titles  and  interest  in  various  letters  patent 
of  the  United  States  especially  necessary  and  valuable  in  the  manu- 
facture of  said  sewing  machines. 

Plaintiffs  further  saj'  that  unless  a  receiver  be  forthwith  appointed 
for  the  defendant  corporation  its  property  will  be  sacrificed,  its 
factory  will  have  to  be  immediately  closed  and  its  business  immedi- 
ately closed  and  its  business  be  immediately  suspended,  to  the  great 
and  irreparable  injury  of  these  plaintiffs  and  all  other  creditors  and 
stockholders  of  the  said  defendant  corporation. 

Wherefore  plaintiffs  ask  that  a  receiver  for  the  said  defendant  cor- 
poration may  be  appointed  to  take  charge  of  its  real  and  personal 
property  of  all  kinds  and  descriptions,  and  wheresoever  situated, 
including  choses  in  action,  with  authority  to  continue  the  business  of 
said  corporation  for  the  time  being,  under  the  direction  and  subject 
to  the  orders  of  this  court,  pending  the  final  winding  up  and  settle- 
ment of  the  affairs  of  said  corporation;  that  he  may  be  authorized 
by  order  of  this  court  from  time  to  time  to  borrow  such  sums  of 
money  for  the  purpose  aforesaid,  as  to  this  court  may  seem  neces- 
sary and  proper,  and  issue  his  obligations  therefor,  that  he  may 
ascertain  the  indebtedness  of  said  corporation  and  report  the  same 
to  this  court,  that  the  said  defendant  corporation  may  be  ordered  to 
convey  or  transfer  all  its  property,  both  real  and  personal,  including 
choses  in  action  and  letters  patent,  wheresoever  the  same  may  be 
situated,  whether  within  this  state  or  any  other  state  or  country,  to 
the  said  receiver  to  be  appointed  in  this  action,  that  the  business  and 
affairs  of  said  defendant  corporation  may  be  ultimately  wound  up, 
all  its  property  of  all  kinds  and  descriptions  sold,  and  the  proceeds 
thereof  equitably  distributed  under  and  in  accordance  with  the  orders 
of  this  court,  and  plaintiffs  pray  for  all  such  other  and  further  relief 
as  they  may  be  entitled  to,  whether  at  law  or  in  equity. 

Oliver  Ellsworth,  Plaintiff's  Attorney. 

{Verification^^ 

(-?")  ^^gl^ct  and  Mismanagement. 

Form  No.  6439.* 

State  of  Minnesota.,  )  District  Court. 
County  of  Rice.        \  Fifth  Judicial  District. 
The  State  of  Minnesota  ex  relatione  ^ 
Daniel  Webster,  Attorney-General^ 
plaintiff, 

against 
The  Cannon  River  Manufacturers 
Association.,  defendant. 
The  State  of  Minnesota.,  plaintiff  above  named,  by  Daniel  Webster., 
its  attorney,  complains  of  the  defendant  above  named,  and  says:* 

1.  Consult  the  title  Verifications.         N.  W.  Rep.  621.     The  court  held  that 

2.  Form  based  on  State  v.  Cannon  the  facts  alleged  in  the  above  complaint 
River    Mfg.    Assoc,  (Minn.    1896)  69     were  sufl5cient  to  justify  a  dissolution. 

694  Volume  5. 


6439.  CORPORATIONS.  6439. 

I.  That  the  Cannon  River  Manufacturers'  Association  is  a  corpora- 
tion duly  organized  and  existing  under  and  pursuant  to  the  laws  of 
the  state  of  Minnesota. 

II.  That  by  an  act  of  the  legislature  of  the  state  of  Minnesota, 
approved  March  2,  1865,  entitled  (^Title  of  act^}  the  state  of  Minne- 
sota granted  unto  the  Cannon  River  Improvement  Company.,  a  corpora- 
tion theretofore  duly  organized  and  existing  under  and  pursuant  to 
the  laws  of  the  state  of  Minnesota,  for  the  purpose  of  aiding  the  said 
last  named  company  in  the  construction  of  slackwater  navigation 
with  the  said  Cannon  river,  in  said  state,  and  from  thence  by  way  of 
Lake  Elysian  to  the  Minnesota  river,  near  Mankato,  all  the  swamp 
lands  belonging  to  said  state,  lying  and  being  in  the  odd-numbered 
sections,  within  the  St.  Peter  land  district,  as  the  said  district  was 
then  constituted,  and  not  otherwise  appropriated,  to  an  amount  of 
not  to  exceed  three  hundred  thousand  acres. 

That  the  said  Cannon  River  Improvement  Company  was  organized 
for  the  purpose  of  constructing  canals,  locks,  dams,  towpaths,  and, 
generally,  for  the  purpose  of  constructing  slackwater  navigation 
from  the  Mississippi  river  via  the  Cannon  river  to  the  lakes  con- 
nected therewith,  thence  via  Lake  Elysian  to  the  Minnesota  river, 
utSLV  Mankato;  but  that,  by  an  act  of  said  legislature,  entitled  "An 
Act  in  relation  to  the  Cannon  River  Improvement  Company," 
approved  February  28,  1872,  the  said  Cannon  River  Improvement 
Company  was  authorized  and  empowered  to  amend  and  alter  its 
articles  of  incorporation,  so  as  to  make  it  a  purpose  and  object  of 
said  corporation,  in  addition  to  the  rights  and  purposes  theretofore 
enjoyed,  to  construct  and  operate  a  railroad,  under  and  pursuant  to 
the  general  laws  of  the  said  state,  from  the  Mississippi  river  via  the 
valley  of  the  Cannon  river  along  the  route  in  said  last  named  act 
described,  and  granted  and  extended  to  the  said  Cannon  River 
Improvement  Company,  for  the  purpose  of  constructing  the  said  rail- 
road, the  right  to  have,  use  and  enjoy  all  and  singular  the  moneys, 
capital  stock,  subscriptions,  property,  and  rights  of  every  nature  and 
kind,  acquired  or  pledged  for  the  purpose  of  the  construction  of  the 
said  canal  and  slackwater  navigation  and  works  connected  there- 
with, and  upon  substantially  the  same  conditions,  so  far  as  the  same 
could  be  made  conformable  to  the  change  of  public  improvement 
contemplated  by  the  said  last  named  act.  That,  in  pursuance  of 
the  said  last  named  act,  the  said  Cannon  River  Improvement  Company 
did  thereafter  amend  and  alter  its  said  articles  of  incorporation  so 
as  to  make  it  a  purpose  and  object  of  said  corporation,  in  addition 
to  the  rights  and  purposes  theretofore  enjoyed  by  it,  to  construct 
and  operate  a  railroad,  under  title  i  of  chapter  34  of  the  General 
Statutes  of  said  state,  from  the  Mississippi  river  via  the  valley  of 
the  Cannon  river  along  the  route  aforesaid;  and  that  the  amend- 
ments and  alterations  of  the  said  articles  were  duly  filed  and  recorded 
in  the  office  of  the  secretary  of  state  of  said  state. 

1.  The  title  of  the  act  referred  to  was     on  the  Cannon  river,  from  thence  by 
as  follows:  "  An  Act  to  aid  the  Cannon     way  of  Lake  Elysian  to  the  Minnesota 
River    Improvement   Company  in  the     river,  at  Mankato." 
construction  of  slackwaten  navigation 

695  Volume  5. 


6439.  CORPORATIONS.  6439. 

III.  That  pursuant  to  an  act  of  the  legislature  of  the  said  state 
entitled  {title  of  act\^  approved  February  27,  1875,  it  was  provided, 
among  other  things,  that  in  case  the  said  Cannon  River  Improvement 
Company  should  elect  to  apply  the  grant  made  in  the  act  first  herein- 
before named  in  the  building  of  a  railroad  as  authorized  by  chapter 
III  of  the  Special  Laws  of  1872,  at  least  one-twelfth  of  said  grant 
should  be  selected  pro  rata,  and  set  apart  for  the  purpose  of 
developing  and  improving  the  water-powers  and  manufacturing 
resources  of  the  Cannon  river,  which  said  lands  so  selected  and  set 
apart  should  never  be  diverted  from  the  said  last  named  object,  and 
that  whenever  a  corporation  of  the  proprietors  of  the  mills  of  said 
Cannon  river  should  be  formed  for  that  purpose  the  lands  thus 
selected  and  set  apart  should  be  transferred  by  the  said  Cannon  River 
Improvement  Company  to  the  corporation  composed  of  the  said  proprie- 
tors, to  be  used  and  applied  under  its  direction  as  in  said  last 
named  act  provided. 

IV.  That  pursuant  to  the  terms  of  the  various  acts  under  which  the 
defendant  became  entitled  to  its  land  grant,  it  has  selected,  and  the 
governor  of  the  state  has  conveyed  to  it,  in  the  aggregate, 
2Jf,181.Jf.5  acres;  and  that  said  corporation  has  disposed  of  the  same, 
and  received  therefor  the  sum  oi  forty -one  thousand  seveti  hundred  and 
twenty-three  do\\a.rs;a.nd  that  it  is  entitled  to  receive,  under  the  terms 
of  its  grant,  an  additional  amount  of  818.55  acres. 

V.  That  the  defendant  has  become  entangled  in  much  and  expen- 
sive litigation,  involving  an  expenditure  of  over  six  thousand  dollars 
of  its  funds.  That  though  receiving  and  disbursing  large  sums  of 
money,  defendant  has  never  kept  books  of  account,  and  has  none 
but  very  crude  records  of  such  receipts  and  disbursements;  and  that 
the  management  of  its  affairs  has  been  largely  in  the  hands  and  under 
the  control  of  one  or  two  of  its  members.  That  during  the  latter 
years  of  the  existence  of  the  defendant,  most  of  its  members  had 
ceased  to  own  any  mill  property  on  the  Cannon  river,  where  the  mills 
of  the  defendant  were  situated,  or  to  have  any  pecuniary  interest  in 
the  development  of  its  water-powers;  and  that,  previous  to  the  com- 
mencement of  this  action,  all  such  members  had  sold  and  conveyed 
away  all  their  interest  in  the  mills  on  said  river  in  which  they  were 
formerly  interested;  and  that  not  one  of  them  is  now  the  owner  of 
or  in  any  manner  interested  in  any  mill  power  on  said  stream.  That 
all  the  members  of  defendant  corporation  have  ceased  to  have  any 
interest  in  the  management  of  its  affairs,  or  any  concern  for  the  best 
use  of  its  remaining  funds  to  complete  the  improvements  for  which 
they  were  granted,  or  in  any  other  improvement  of  the  water-powers 
of  the  said  Cannon  river;  and  that  the  moneys  due  such  corporation, 
and  the  proceeds  of  a  judicious  sale  of  its  remaining  lands,  would,  if 
wisely  expended,  largely  supplement  the  work  already  done,  and 
greatly  improve  such  water-powers,  and  benefit  the  present  owners, 
who  have  succeeded  to  the  rights  therein  of  the  original  proprietors, 

1.  The  title  of  act  referred  to  in  the     118,  Special  Laws  of  1870,  relating  to 
text  was  as  follows:  "An  Act  to  amend     the  Cannon  River  Improvement  Com- 
section  2  of  chapter  67  of  the  Special     pany." 
Laws  of  1865,  as  amended  by  chapter 

696  Volume  5. 


6440.  CORPORA  TIONS.  6440. 

members  of  the  defendant  corporation.  That  the  amount  of  funds 
which  the  defendant  is  likely  to  receive,  applicable  to  the  purpose  of 
its  trust,  and  exclusive  of  the  additional  land  to  which  it  is  entitled, 
will  depend  very  much  on  the^  outcome  of  the  litigation  in  which  it 
is  engaged;  but  that  the  same  will  probably  amount  to  but  a  few 
thousand  dollars. 

Wherefore  plaintiff  asks  judgment  that  the  defendant  corporation 
be  dissolved;  its  affairs  wound  up;  that  it  be  restrained  from  exer- 
cising its  corporate  privileges,  and  that  a  receiver  be  appointed  to 
take  charge  of  its  property  and  effects,  and  apply  the  same  to  the 
purpose  for  which  such  corporation  was  organized. 

Daniel  Webster^  Attorney-General. 

(  Verification^'^ 

(Ji)  Nonpayment  of  Stock. 

Form  No.  6440.^ 

{Title  of  court  and  cause,  and  commencement  as  in  Form  No.  BJ^SIf.  to  *.) 

1.  That  at  the  several  times  hereinafter  mentioned,  the  defendant 
was,  and  still  is,  a  domestic  corporation  organized  on  or  about  the 
eighteenth  day  of  August,  i885,  under  the  laws  of  the  state  of  Neia 
York,  having  its  principal  place  of  business  in  the  city  of  Buffalo, 
state  of  New  York. 

2.  That  the  capital  stock  of  said  company  was  ninety  thousand 
dollars,  represented  by  nine  hundred  shares  of  the  par  value  of  one 
hundred  doWsLVS  each. 

3.  That  three  years  and  seven  months  have  now  elapsed  since  said 
company  was  organized,  and  only  about  seventy-seven  and  one-half 
per  cent,  of  said  capital  stock  has  been  paid  in. 

4.  That  said  company  was  duly  organized  under  chapter  40  of  the 
Laws  of  1848,  and  the  acts  amendatory  thereof,  for  the  purpose  of 
carrying  on  the  business  of  manufacturing  of  building  and  cut  stone, 
of  cement  and  gypsum,  and  the  purchasing  and  improving  real  estate  for 
residences  and  homesteads,  to  be  leased  and  sold  by  said  company,  but  that 
said  company  has  done  nothing  during  the  year  last  past  toward 
the  purposes  for  which  it  was  organized,  and  has  for  more  than  one 
year  last  past  suspended  its  ordinary  and  lawful  business. 

5.  That  said  company  has,  in  violation  of  the  statutes,  in  such 
cases  made  and  provided,  received  and  taken  notes  from  sundry  of 
its  stockholders,  instead  of  money,  for  assessments  upon  its  capital 
stock,  as  and  for  its  capital  stock. 

6.  That  said  company  has  failed  to  file  or  make  public  the  report 
required  by  the  act  under  which  it  is  incorporated,  which  should 
have  been  filed  within /Tf^/z/V  days  after  the  first  day  oi  fanuary,  iSS9. 

7.  That  said  corporation  was  organized  for  the  purposes  set  forth 
in  number  fourth  above,  but  has  utterly  and  totally  failed  to  do  or 
perform  any  business  whatever  in  furtherance  of  the  purposes  for 

1.  Consult  title  Verifications.  Co.,  131  N.  Y.   140.     See   also  supra, 

2.  This  complaint  ia  copied  from  the     note  2,  p.  662. 
record  in  People  v.  Bu£falo  Stone,  etc., 

697  Volume  5. 


6441.  CORPORATIONS.  6441. 

which  it  was  organized,  during  the  year  last  past,  or  to  exercise  its 
corporate  powers  during  said  period  of  time. 

8.  That  it  is  for  the  best  interests  of  the  creditors  and  stockholders 
that  said  corporation  be  dissolved,  and  that  a  receiver  be  appointed, 
and  its  property  distributed  according'to  law. 

Wherefore  plaintiff  demands  judgment. 

First.  That  the  defendant  corporation  be  dissolved,  and  its  rights, 
privileges  and  franchises  forfeited. 

Second.  That  a  receiver  of  the  property  and  effects  of  the  corpo- 
ration be  appointed  pursuant  to  the  provisions  of  the  statute,  with  all 
the  power  and  authority  conferred  by  law,  and  subject  to  all  the 
duties  and  liabilities  imposed  upon  receivers  in  such  cases. 

Third.  That  the  defendant,  its  trustees,  directors,  managers  and 
other  officers  be  restrained  by  injunction  during  the  pendency  of  this 
action,  from  collecting  or  receiving  any  debt  or  demand  and  from 
paying  out,  or  in  any  way  transferring  or  delivering  to  any  person 
any  money,  stock,  property  or  effects  of  the  said  corporation,  except 
by  express  permission  of  the  court;  and  from  exercising  any  of  the 
corporate  rights,  franchises  or  privileges  of  the  corporation,  except 
by  express  permission  of  the  court. 

Fourth.  That  the  plaintiff  may  have  such  other  and  further  judg- 
ment or  relief  in  the  premises  as  may  seem  to  the  court  proper  to 
grant. 

Fifth.  That  the  plaintiff  recover  the  costs  of  this  action. 

Chas.  F.  Tabor,  Attorney-General, 

Plaintiff's  Attorney. 
State  of  New  York,  ) 
County  of  Erie.  \ 

Rufus  M.  Choaie,  beingfirst  duly  sworn,  deposes  and  says,  that  he  is 
a  stockholder  and  former  secretary  of  the  above  named  defendant,  the 
Buffalo  Stone  and  Cement  Company,  and  is  conversant  with  the  business 
of  said  company  and  with  its  affairs.  That  he  has  heard  the  fore- 
going complaint  read,  and  knows  the  contents  thereof,  and  that  the 
same  is  true  of  his  own  knowledge,  except  as  to  the  matters  therein 
stated  to  be  alleged  upon  information  and  belief,  and  as  to  those 
matters  he  believes  it  to  be  true. 

Rufus  M.  Choate. 

Sworn  to  before  me  this  ninth  day  of  April,  i889. 

C.  Louis  Fritz, 
Notary  Public  in  and  for  Erie  Q,o\ys\X.y. 

(/)  Other  Violations  of  Law. 
aa.  Relating  to  Banks. 

Form  No.  6441. 

(  Title  of  court  and  cause,  and  commencement  as  in  Form  No.  BJfSO  to  *.) 
I.  That  the  said  defendant,  the  Commercial  Bank  of  Pennsylvania, 

1.  This  ioformation  is  based  on  the  facts  in  Com.  v.  Commercial  Bank,  28  Pa. 
St.  383.     A  motion  to  quash  a  writ  of  quo  warranto  was  overruled. 

698  Volume  5. 


644 1 .  CORPORA  TIONS.  644 1 . 

at  the  several  times  hereinafter  mentioned,  was  and  still  is  a  corpora- 
tion, duly  organized  and  incorporated  by  an  act  of  assembly  of  the 
commonwealth  of  Pennsylvania^  passed  March  24,  18 14. 

II.  That  in  and  by  said  act  of  assembly  it  was  expressly  enacted 
and  declared  to  be  a  fundamental  article  of  said  corporation,  that  the 
rate  of  discount  at  which  loans  might  be  made  by  the  said  corpora- 
tion should  not  exceed  one-half  of  one  per  centum  for  M/r/y  days; 
that  in  and  by  said  act  it  was  also  expressly  enacted  and  declared  to 
be  a  fundamental  article  of  said  corporation,  that  the  said  corpora- 
tion should  not  deal  or  trade  in  anything  but  bills  of  exchange,  gold 
or  silver  bullion,  stocks  of  banks  incorporated  by  the  state  of  Penn- 
sylvania, and  United  States  treasury  notes,  or  goods  pledged  to  the 
said  corporation  for  money  lent  and  not  redeemed  in  due  time,  or 
goods  which  might  be  the  produce  of  their  lands. 

That  by  an  act  of  the  assembly  of  the  cotnmonwealth  of  Penn- 
sylvania, passed  March  25,  1824,  the  charter  of  said  bank  was  con- 
tinued to  tht  first  Wednesday  of  May,  \^35. 

III.  That  by  several  subsequent  acts  of  the  commonwealth  ol  Penn- 
sylvania, viz.,  its  acts  of  March  2,  183 1,  April  26,  1844,  and  April  2, 
1849,  the  said  charter  had  been  further  continued  from  time  to  time 
by  the  legislature,  subject  to  all  the  provisions,  restrictions  and 
limitations  contained  in  the  original  act  of  incorporation. 

IV.  That  the  said  bank  has  repeatedly  violated  and  broken  the 
fundamental  articles  of  their  act  of  incorporation,  and  greatly  per- 
verted and  abused  their  corporate  powers  in  this,  that  for  many 
months  past  the  said  bank  had  been  in  the  constant  practice  of  dis- 
counting promissory  notes  at  exorbitant  and  usurious  rates  of 
interest,  far  exceeding  the  rate  of  one-half  of  one  per  centum  for 
thirty  days;  that  the  said  bank  received,  in  the  month  of  May,  i85^ 
twenty-one  hundred  and  fifteen  dollars  and  yf/7y  cents  for  such  usurious, 
unlawful  and  prohibited  discount;  in  the  month  oi  June,  eight'cen  hun- 
dred and  forty-five  dollars  axid  fifty  cents;  \n  July,  twenty-two  hundred 
and  thirteen  dollars;  in  August,  seventeen  hundred  and  twenty-seven  dol- 
lars 2in6.  fifty  cents;  in  September,  eleven  hundred  and  sixty  dollars;  in 
October,  two  thousand  and  forty  doWaxs;  that  between  J/oy  and  October 
the  said  bank  received  between  eleven  and  twelve  thousand  dollars, 
profits  made  exclusively  from  usurious  discounts  of  promissory  notes. 

V.  That  the  said  bank  had  also  for  a  long  time  past,  to  wit,  from 
the  first  day  of  May,  i854,  been  engaged  in  dealing  in  promissory 
notes  contrary  to  the  express  prohibition  contained  in  the  funda- 
mental articles  of  incorporation. 

That  the  said  bank,  in  committing  the  several  unlawful  acts  afore- 
said, have  wilfully  abused  their  corporate  powers,  perverted  the 
objects  for  which  they  were  incorporated,  usurped  powers  and  func- 
tions which  were  expressly  prohibited  to  them  in  their  fundamental 
law,  and  by  reason  of  the  said  abuses,  usurpations  and  unlawful  acts 
have  forfeited  the  corporate  rights  and  franchises  conferred  upon 
them  by  the  several  acts  of  assembly  aforesaid. 

Whereupon  the  said  Martin  D.  Hardy,  attorney  for  the  said  com- 
monwealth, in  the  name  and  by  the  authority  thereof,  prays  the  con- 
sideration of  the  court  here  in   the  premises,  and  that  due   process 

699  Volume  5. 


6442. 


CORPORA  TIONS. 


6442. 


may  be  awarded  against  the  said  Commercial  Bank  of  Pennsylvania  in 
this  behalf,  to  answer  to  this  court  by  what  warrant  it  exercises  the 
powers  and  privileges  hereinabove  described.  (^Signature  of  Attorney- 
General  and  verification  as  in  Form  No.  6Jf30.^ 

bb.  Relating  to  Insurance  Companies. 


Form  No.  6442.' 

(^Title  of  court  and  cause.,  and  coinniencement  as  in  Form  No.  6Jf3S 
to  *)  that  the  defendant  is  an  incorporated  company,  formed  and 
organized  under  the  act  of  May  i,  i85^,  and  the  acts  supplementary 
thereto,  and  that  ever  since  its  organization  it  has  continuously, 
within  this  state,  to  wit,  at  the  county  of  Champaign,  etc.,  offended 
against  the  laws  of  this  state,  grossly  abused  and  misused  its  cor- 
porate authority,  franchises  and  privileges,  and  unlawfully  assumed 


1.  This  information  is  based  on  the  facts 
in  State  V.  Central  Ohio  Mut.  Relief 
Assoc,  29  Ohio  St.  399.  In  that  case  a 
forfeiture  of  all  the  corporate  fran- 
chises and  privileges  of  association  was 
declared,  and  a  judgment  of  ouster 
from  its  right  to  be  a  corporation 
entered  against  the  defendant. 

The  information  in  equity  against  a 
mutual  insurance  company  in  Chicago 
Mut.  L.  Indemnity  Assoc,  v.  Hunt,  127 
111.  258,  stated  facts  sufficient  to  justify  a 
dissolution.  The  information,  omitting 
formal  parts,  alleged  in  substance  as  fol- 
lows: "That  the  Chicago  Mutual  Life 
Indemnity  Association  is  a  corporation 
organized  January  13,  1885,  under  an 
act  (title  0/ act)  approved  June  18,  1883; 
that  said  association  entered  upon  the 
exercise  of  its  corporate  franchise  and 
the  transaction  of  business  under  its 
certificate  of  organization  on  or  about 
January  ij,  i8^,  and  had  continued 
the  same  until  the  date  of  filing  said 
information,  its  principal  office  being 
located  in  the  city  of  Chicago.  That  on 
or  before  March  /,  18(5^,  its  president 
and  secretary  filed  with  the  auditor  of 
public  accounts  a  statement  under  oath 
of  its  business  for  the  year  ending 
December  ji,  i%86,  as  required  by  law, 
showing  its  financial  condition,  assets, 
liabilities,  total  amount  of  indemnity 
in  force,  number  of  members,  number 
whose  membership  had  terminated 
during  the  year  and  cause  thereof, 
total  receipts  and  sources  thereof,  total 
expenditures  and  object  thereof,  and 
the  average  amount  paid  on  each  cer- 
tificate; that  said  statement  was  wil- 
fully false  and  untrue,  and  that  the 
auditor  so  found  on  examination  of  the 
books   and  papers    of  the   association 


and  such  other  examination  as  he  had 
deemed  necessary;  that  the  business 
of  the  association  had  been  conducted 
fraudulently  and  in  wilful  violation  of 
the  provisions  of  said  act,  and  that  the 
association  had  transacted  business 
different  from  that  authorized  by  its 
certificate  of  incorporation;  that  the 
auditor  had  communicated  such  facts 
to  the  attorney-general  as  required  by 
law,  and  that  the  attorney-general,  in 
pursuance  of  the  duty  imposed  upon 
him  by  law,  applied  to  the  court  for 
relief,  according  to  the  statute  in  such 
case  made  and  provided,  and  for  cause 
of  such  application  further  and  more 
particularly  showed:  {Here  ivere  set  out 
facts  showing  the  fraudulent  and  illegal 
business  operations  of  the  company,  which 
are  enumerated  in  the  reported  case.)  (Con- 
cluding with  a  prayer  to  the  effect  that) 
"said  officers  be  required  to  show 
cause  why  they  should  not  be  removed 
from  office,  or  the  business  of  the  asso- 
ciation closed,  and  that  if  it  should  ap- 
pear that  said  officers  or  any  of  them 
had  been  guilty  of  fraud,  or  any 
material  irregularity  or  violation  of 
law  to  the  injury  of  the  association,  or 
of  noncompliance  with  any  of  the  pro- 
visions of  the  act  under  which  the 
association  was  organized,  the  court 
should  decree  a  removal  from  office 
of  the  guilty  party  or  parties,  and  the 
substitution  of  a  suitable  person  or 
persons  to  serve  until  the  regular 
annual  meeting,  or  until  a  successor  or 
successors  should  be  regularly  chosen 
or  elected;  or,  if  it  should  appear  to 
the  court  that  the  interests  of  its  mem- 
bers or  the  general  public  so  require, 
that  it  decree  a  dissolution  of  the  asso- 
ciation and  a  distribution  of  its  effects." 


roo 


Volume  5. 


6443. 


CORPORA  TIONS. 


6443. 


and  usurped  franchises  and  privileges  not  granted  to  it,  and  espe- 
cially in  the  following  particulars,  to  wit:  (^H ere  followed  seven  specifi- 
cations, the  substance  of   all  of  which,  so  far  as  the  testimony  renders 
them  material,   is    embodied  in  the  eighth  specifications. y- 
Wherefore  (continuing  and  concluding  as  in  Form  2Vo.  6433). 


cc.  Relating  to  Railroads. 

Form  No.  6443.* 

(Precedent  in  Ford  v.  Kansas  City,  etc.,  R.  Co.,  52  Mo.  App.  444.)' 


In  the  Circuit  Court  of  Jackson 
County,  Missouri.  To  the 
October  Term,  x%91. 


Smith  M.  Ford  and  (names  of  other " 
plaintiffs),  plaintiffs, 
against 
The  Kansas    City  and  Independence 

Short  Line  Railroad  Company  and 

(names   of  other  defendants),    de- 
fendants. 

Plaintiffs  state: 

First.  That  the  Kansas  City  and  Independent  Short  Line  Railroad 
Company  is  a  corporation  organized  and  existing  under  and  by  virtue 
of  the  laws  of  the  state  of  Missouri;  that  the  capital  stock  of  said 
corporation  is  %100,000,  divided  into  one  thousand  ^\idiXt.%  oi  t\\.t.  par 
value  of  %100  each. 

Second.  That  at  the  time  of  the  organization  of  said  corporation, 
all  of  the  capital  stock  was  subscribed  for  by  parties  in  the  state  of 
Missouri  and  elsewhere,  and  five  per  cent,  of  the  capital  stock  of  said 
corporation  was  paid  into  the  treasury  of  said  corporation  by  the 
stockholders,  and  that  no  other  sum  of  money  has  ever  been  paid 
into  the  treasury  by  any  stockholder  thereof. 

Third.  That  S.  M.  Ford,  one  of  the  plaintiffs  herein,  subscribed  for 
and  is  the  owner  oi  fifty  shares  of  the  capital  stock  of  said  corporation, 
and  that  D.  S.  Orrison,  the  other  plaintiff  herein,  subscribed  for  and 
is  the  owner  of  three  shares  of  the  capital  stock  of  said  corporation. 

Fourth.   That  there  are  about  fifty  stockholders  in  said  corpora- 


1.  The  eighth  Bpeoification  referred  to 
in  the  text  reads  as  follows: 

"For  hire  and  reward,  it  has  unlaw- 
fully issued  to  various  persons,  for  their 
use  and  benefit  respectively,  instru- 
ments of  writing,  denominated  certifi- 
cates of  membership,  beingof  the  tenor 
and  effect  of  wagering  policies  of  life 
insurance,  and  thereby  agreed  and  un- 
dertaken to  pay  to  each  of  such  persons, 
or  his  represen  tatives,  upon  the  death  of 
a  third  person  named  in  such  instru- 
ment (such  third  person  being  a  stranger 
to  such  pretended  contract,  and  even 
to  the  parties  thereto,  and  often  in  fail- 
ing health,  and  the  insured  having  no 
insurable  or  other  interest  in  the  life 
of  such  third  persons),  a  large  sum  of 
money,  to  wit,  five  thousand  dollars, 
more  or  less,  and  that,  too,  without  the 


means  or  power  of  fulfilling  such  pre- 
tended contracts  upon  its  part;  and  in 
consideration  of  hire  and  reward  in  each 
case,  it  has  entered  into  a  large  number 
of  such  pretended  contracts  with  the 
same  person,  undertaking  to  insure 
him  thereby  in  a  vast  aggregate  sum, 
to  wit,  in  one  instance,  over  one  hundred 
and  fifty  thousand  dollars,  against  the 
deaths  of  a  large  number  of  strangers, 
to  wit,  in  one  instance,  o\ct  fifty;  and 
it  is  still  engaged  in  such  unlawful  and 
swindling  operations." 

2.  Missouri.  —  Rev.  Stat.  (1889),  ^ 
2664.  See  also  list  of  statutes  cited 
supra,  note  2,  p.  658. 

3.  This  petition  contained  a  good  canse 
of  action,  and  was  upheld  on  the  author- 
ity of  Thompson  v.  Greeley,  107  Mo. 
577. 


701 


Volume  5. 


6443.  CORPORATIONS.  6443. 

tion  holding  from  one  hundred  shares  to  one  share  each,  and  that  some 
of  the  stockholders  in  said  corporation  are  nonresidents  of  the  state 
of  Missouri^  and  that  quite  a  number  of  the  stockholders  of  said  cor- 
poration are  insolvent. 

Fifth.  That  the  money  heretofore  mentioned  and  paid  into  the 
treasury  by  the  stockholders  has  been  expended,  and  other  debts  and 
liabilities  contracted  by  said  corporation  amounting  to  about  the 
sum  of  %2^000,  which  has  been  unpaid  by  ^aid  corporation;  that  said 
corporation  has  no  property  or  assets,  and  is  wholly  insolvent;  that 
Victor  Bell  recovered  a  judgment  which  is  of  record  in  the  circuit 
court  oi  Jackson  county,  for  the  sum  of  %166.08y  and  costs;  that 
Kevil  6^  Waples  recovered  a  judgment  against  said  corporation  for 
the  sum  of  %76.95,  which  is  of  record  in  said  circuit  court;  that  after 
the  obtaining  of  said  judgment,  the  said  judgment  creditors  in  said 
respective  judgments  again  filed  a  motion  under  the  statute  asking 
judgment  against  p^laintiff,  D.  S.  Orrison,  and  judgment  in  said  two 
actions  was  rendered  against  plaintiff,  D.  S.  Orrison,  for  said 
amounts  above  stated,  which  judgment  so  rendered  was  by 
D.  S.  Orrison  paid. 

That  C.  S.  Crysler,  in  the  said  circuit  court  of  Jackson  county, 
Missouri,  recovered  a  judgment  against  said  corporation,  which, 
together  with  costs,  amounted  to  the  sum  of  %1,070;  that  after  the 
obtaining  of  the  said  judgment,  said  judgment  creditor  filed  a 
motion  in  said  action  under  the  statute  asking  judgment  against 
plaintiff,  6".  M.  Ford,  upon  his  unpaid  stock,  and  a  judgment  upon 
said  motion  was  rendered  against  plaintiff,  6".  M.  Ford,  for  the  said  sum 
of  %1,070.  Plaintiffs  further  represent  and  show  that  there  are 
other  judgments  and  claims  remaining  unpaid  that  have  been  ren- 
dered against  and  owing  by  said  corporation. 

Sixth.  That  they,  by  reason  of  said  judgments  so  rendered  against 
them,  and  such  other  stockholders  as  may  be  compelled  to  pay  said 
other  judgments  and  outstanding  claims,  are  entitled  to  contribution 
from  the  remaining  stockholders  of  said  corporation  that  are  solvent; 
that  no  stockholder  has  paid  into  the  treasury  or  expended  any 
money  for  said  corporation  other  th.a.njive  per  cent,  paid  in  as  here- 
tofore stated,  and  that  all  of  the  stockholders  of  said  corporation  are 
liable  to  plaintiffs  for  their  proper  and  proportionate  share  towards 
paying  said  judgments. 

Seventh.  That  said  corporation  was  organized  in  April,  iS87, 
since  which  time  and  for  the  last  eighteen  months,  there  has  been  no 
meeting  of  the  board  of  directors  and  officers  of  said  corporation, 
and  that  said  officers  and  directors  have  failed  to  call  in  any  propor- 
tion of  the  unpaid  instalments  due  from  the  stockholders  upon  the 
capital  stock  due  by  the  stockholders  to  the  corporation,  and  have 
failed  and  neglected  to  make  any  provision  for  the  payment  of  the 
judgments  rendered  against  said  corporation  and  the  debts  owing  by 
said  corporation. 

Eighth.  That  a  number  of  the  stockholders  of  said  corporation 
are  nonresidents  of  this  state,  a  number  are  insolvent,  and  the  only 
way  in  which  a  fair  and  equitable  settlement  of  the  debts  of  said 
corporation  can  be  made  by  the  solvent  stockholders  thereof  is  by 

702  Volume  5. 


6444. 


CORPORA  TIONS. 


6444. 


the  appoinment  of  a  receiver,  with  the  power  to  collect  from  such 
solvent  stockholders  their  proper  and  proportionate  share  necessary 
to  pay  the  debts  of  said  corporation  and  the  proper  costs  of  these 
proceedings. 

[Wherefore,  plaintiffs  pray  that]  said  corporation  may  be  wound  up 
and  dissolved,  and  to  that  end  that  a  receiver  be  appointed  herein, 
with  full  power  and  authority  to  take  possession  of  the  books,  papers 
and  property  of  said  corporation,  and  that  such  receiver,  under 
the  order  of  this  court,  be  given  authority  to  collect  the  unpaid 
instalments  of  the  stockholders  sufficient  in  amount  to  properly 
reimburse  your  orators  and  pay  such  other  and  remaining  judgments 
and  debts  as  are  owing  by  said  corporation,  together  with  the  costs 
of  these  proceedings. 

Oliver  Ellsworth,  Attorney  for  Plaintiffs. 

(2)  For  Usurpation  of  Franchises. 


Form  No.  6444 .' 

State  of  Indiana,  )  In  the  Posey  Circuit  Court, 

County  of  Posey.  \     '  October  Term,  \W8. 

The  State  of  Indiana  ex  relatione  Daniel  Webster, ' 

prosecuting  attorney  of  the judicial  circuit, 

against 

Henry  Bailey  and  {names  of  other  defendants'). 

Daniel  Webster,  prosecuting  attorney  within  and  for  the  

judicial  circuit  of  the  state  of  Indiana,  comes  here  into  the  Circuit 
Court  of  the  county  of  Posey,  state  of  Indiana,  and  now  here  gives 
said  court  to  understand  and  be  informed: 


1.  Indiana.  —  Horner's  Stat.  (1896). 
§  1131  et  seq.  See  also  list  of  statutes 
cited  supra,  note  2,  p.  658. 

Mining  Corporation  —  Michigan.  —  In 
Taggart  v.  Perkins,  73  Mich.  303,  a  pro- 
ceeding to  try  the  right  of  a  corporation 
to  renew  for  a  term  of  thirty  years,  the 
attorney-general's  information,  omit- 
ting the  formal  parts,  alleged  in  sub- 
stance, that  the  persons  named  "are 
stockholders  in  a  corporation,  called 
the  ^Pewabic  Mining  Company^  purport- 
ing to  be  a  renewed  corporation,  and 
for  the  space  of  one  month  last  past  and 
upwards,  at  Hancock,  in  the  county  of 
Houghton,  in  this  state,  have  used,  and 
still  do  use,  without  warrant,  grant  or 
charter,  the  liberties,  privileges  and 
franchises  of  being  a  body  corporate  in 
law,  fact  and  name,  by  the  name  of  the 
'Pcwabic  Mining  Company,'  purporting 
to  be  a  renewed  corporation,  and  by 
that  name  to  plead  and  be  impleaded, 
to  answer  and  be  answered  unto;  and 
also  the  liberties,  privileges  and  fran- 
chises of  mining,  sme/tins;  and  manu- 
facturing copper,  iron  and  silver  minerals 


and  ores,  and  for  acquiring,  holding, 
selling  and  conveying  all  property,  real 
and  personal,  necessary  or  convenient 
for  carrying  on  the  same;  and  during 
all  the  time  aforesaid  the  said  persons 
have  usurped,  and  still  do  usurp,  upon 
the  said  people."  Concluding  with 
prayer  for  process  against  such  persons 
"  to  answer  the  people  of  the  state  of 
Michigan  by  what  warrant  they  claim 
to  have,  use  and  enjoy  the  liberties, 
privileges  and  franchises  aforesaid." 
Judgment  of  ouster  was  entered  against 
the  defendants  under  this  information. 
Bailroad  Corporation — Ohio. —  In  State 
V.  Sherman,  22  Ohio  St.  411,  the  pro- 
ceeding was  in  the  nature  of  a  quo 
warranto  by  the  attorney-general,  and 
the  information  charged  in  substance 
that  the  defendants  "  are  acting  and 
assuming  to  act  as  a  corporation  within 
the  state  of  Ohio,  without  being  legally 
authorized  so  to  do;  that  they  are  as- 
suming to  exercise,  and  are  exercising 
within  said  state,  certain  fanchises  and 
authority  not  warranted  by  law;  and 
that  for  the  space  of  one  year  last  past 
03  Volume  5. 


6444. 


CORPORATIONS. 


6444. 


That  the  defendants  Henry  Bailey  {naming  the  other  defendants')  pre- 
tended to  organize  a  corporation  under  the  name  of  the  Bailey  Manu- 
facturing Company,  on  the  twenty-fifth  day  of  February,  1 856,  and  are 
now  assuming  to  act  as  a  corporation  under  the  organization  then 
made,  and  are  now  and  have  been  for  more  than  two  years  last  past 
usurping  the  franchise  of  being  a  corporation  under  the  name  afore- 
said, and  by  that  name  of  pleading  and  being  impleaded,  answering 
and  being  answered,  contracting  and  being  contracted  with,  and  of 
acquiring,  holding,  selling  and  conveying,  and  otherwise  using  and 
disposing  of  property,  both  real  and  personal,  within  the  state  of 
Indiana;  that  said  persons,  pretending  to  act  as  a  corporation,  organ- 
ized under  the  name  aforesaid,  on  the  first  day  of  May,  iS96,  in  the 
oiifice  of  the  secretary  of  state  oi Indiana,  filed  false  and  fraudulent 
articles  of  association,  whereby  the  corporation  was  claimed  to  be 
organized. 

Wherefore,  relator  prays  the  court  that  the  said  defendants  be 


they  have  used,  and  still  do  use,  with- 
out any  grant,  warrant  or  charter,  the 
liberties,  privileges  and  franchises  fol- 
lowing, to  wit:  That  of  being  a  body 
corporate  and  politic  in  fact,  law  and 
name,  by  the  name  of  the  '^  Pittsburg, 
Ft.  Wayne  and  Chicago  Railxvay  Com- 
pany,' and  by  the  same  name  to  plead 
and  be  impleaded  with,  answer  and  be 
answered  unto,  and  to  have  and  use  a 
corporate  seal;  also  that  of  building, 
owning  and  opening  a  line  of  railroad 
within  said  state,  and  of  condemning 
and  appropriating  private  property  for 
the  same  and  the  use  thereof;  also,  that 
of  being  a  common  carrier  of  passen- 
gers and  freight  within  and  across  said 
state,  and  of  charging  and  receiving  a 
reward  therefor;  also,  that  of  contract- 
ing and  being  contracted  with,  and  of 
exercising  all  the  rights,  powers  and 
privileges  conferred  upon  incorporated 
railroad  companies  by  an  act  of  the 
general  assembly  of  the  state  of  Ohio, 
passed  March  19,  1869,  entitled  'An 
Act  to  amend  section  24  of  an  act  to 
provide  for  the  creation  and  regulation 
of  incorporated  companies  in  the  state 
of  Ohio,'  passed  May  i,  1852.  All  of 
which  liberties,  privileges,  franchises, 
and  authority,  the  defendants  have 
usurped,  and  do  still  usurp,  upon  the 
state  of  Ohio,  and  have  exercised,  and 
are  still  assuming  to  exercise  in  said 
state,  without  being  legally  authorized 
so  to  do,  and  without  any  warrant, 
grant,  or  authority  of  law,  to  the  great 
damage  and  prejudice  of  the  state." 
A  judgment  ouster  was  entered  against 
the  defendants  as  to  the  franchise  being 
a  corporation  of  Ohio,  and  a  judgment 
in  their  favor  as  to  the  other  franchises 


and  privileges  which  they  were  charged 
with  usurping. 

Water  Company  —  Pennsylvania.  —  In 
Com.  V.  Lykens  Water  Co.,  no  Pa.  St. 
391,  the  suggestion  for  a  writ  of  quo 
warranto  filed  by  the  attorney-general 
against  the  Lykens  Water  Co.  to  show 
by  what  warrant  it  claimed  to  exercise 
the  rights  of  a  corporation,  set  forth  in 
substance  the  following  facts: 

"  I.  That  the  respondent,  ever  since 
fuly  20th,  i%8j,  claims,  without  lawful 
warrant,  to  be  a  corporation  in  the 
name  of  The  Lykens  Water  Company, 
with  power  to  supply  pure  water  to  the 
borough  of  Lykens,  in  the  county  of 
Dauphin,  and  to  provide,  erect  and 
maintain  all  the  necessary  appliances 
therefor. 

2.  That  said  respondent  was  not  law- 
fully created  for  the  purposes  afore- 
said, because  on  the  6th  day  of  May, 
i8($b,  another  corporation  was  formed 
in  the  name  of  The  Lykens  Water  Com- 
pany, with  exclusive  power  to  furnish 
water  to  said  borough  of  Lykens,  until 
eight  per  cent,  dividends  had  been  made 
and  divided  among  its  stockholders. 

3.  That  the  Lykens  Water  Company, 
incorporated  May  6th,  i8<5b,  was  in  full 
life  and  being,  and  that  another  com- 
pany (respondent)  was  incorporated  in 
the  name  of  The  Lykens  Water  Com- 
pany, fuly  20th,  i%8j,  and  that  the  older 
company  had  not  realized  eight  per 
centum  upon  its  capital  stock."  Con- 
cluding with  prayer  to  court  "  to  award 
a  writ  of  quo  warranto  against  The 
Lykens  Water  Company,  respondent,  to 
appear  and  show  cause  by  what  war- 
rant they  claim  to  have  the  franchises 
and  powers  claimed." 


704 


Volume  5. 


6445.  CORPORATIONS.  6446. 

required  to  show  by  what  pight,  if  any,  they  claim  to  have,  use  and 
enjoy  the  liberties,  privileges  and  franchises  aforesaid,  and  that  they 
be  ousted  from  using  the  same. 

Daniel  Webster,  Prosecuting  Attorney 

for  the  Eleventh  Judicial  Circuit. 

Form  No.  6445.' 

County  of  Ingham,  ss. 

Daniel  Webster,  attorney-general  of  the  state  of  Michigan,  who 
sues  for  the  people  of  the  said  state  in  this  behalf,  comes  here  into 
the  Circuit  Court  for  the  county  oi  Ingham,  on  the  twenty-ninth  day 
of  March,  \W8,  and  for  the  said  people  gives  the  said  court  here  to 
understand  and  be  informed,  that  the  (^president,  directors  and  company 
of  the  Lansing  Company),  to  wit,  at  the  city  of  Lansing,  in  the  county 

aforesaid,  for  the  space  of years  now  last  past  and  upwards, 

have  used,  and  still  do  use,  without  any  warrant,  grant  or  charter, 
the  following  liberties,  privileges  and  franchises,  to  wit,  that  of  being 
a  body  politic  and  corporate  in  law,  fact  and  name,  by  the  name  of 
{the  president,  directors  and  company  of  the  Lansing  Company),  and  by  the 
same  name  to  plead  and  be  impleaded,  to  answer  and  be  answered 
unto;  and  also  the  following  liberties,  privileges  and  franchises,  to 
wit,  that  of  issuing  and  putting  into  circulation  as  money,  in  and  by 
the  name  aforesaid,  bank  bills  payable  in  money,  and  of  discounting 
bills  of  exchange  and  promissory  notes  in  and  by  the  name  afore- 
said; all  of  which  said  liberties,  privileges  and  franchises  the  said 
president,  directors  and  company  of  the  Lansing  Company  aforesaid, 
during  all  the  time  aforesaid,  have  usurped  and  still  do  usurp  upon 
the  said  people,  to  their  great  damage  and  prejudice;  whereupon  the 
said  attorney-general  prays  the  advice  of  the  said  court  in  the 
premises,  and  due  process  of  law  against  the  president,  directors 
and  company  of  the  Lansing  Company  aforesaid,  in  this  behalf  to  be 
made,  to  answer  to  the  said  people  by  what  warrant  they  claim  to 
have,  use  and  enjoy  the  liberties,  privileges  and  franchises  aforesaid. 

Daniel  Webster,  Attorney-General. 

Supreme  Court,  ss. 

On  motion  of  Daniel  Webster,  attorney-general,  leave  is  granted  by 
the  supreme  court  to  file  the  within  information.  [And  the  defend- 
ants therein  named,  having  appeared  before  the  said  court  by  their 
counsel,  and  been  heard  in  opposition  to  the  motion  for  leave  to  file 
the  same,  it  is  ordered  that  on  filing  the  said  information,  a  rule  be 
entered  requiring  defendant  to  appear  and  plead  thereto  within 
twenty  days  after  service  of  a  copy  thereof  and  notice  of  such  rule,  j 

Calvin  Clark,  Clerk. 

AGAINST    GAS    COMPANY. 

Form  No.  6446. 

(Precedent  in  State  v.  Cincinnati,  Gas-Light,  etc.,  Co.,  18  Ohio  St.  264.)' 
(JTitle  of  court  and  cause  as  in  Form  No.  6433.) 

1.  This  form  is  given  in  Green's  though  the  replication  of  the  state  to 
Pr.  (1866),  p.  493.  several  of   the  pleas  of  the  defendant 

2.  This  information  was  held  good  al-     was  decided  to  be  bad  on  demurrer. 

5  E.  of  F.  P.  — 45.  705  Volume  5. 


6447.  CORPORATIONS.  6447. 

William  H.  West,  attorney-general  of  the  state  of  Ohio,  who  sues 
for  the  said  state  in  this  behalf,  comes  here  before  the  judges 
of    the    Supreme   Court   of   the    said    state   on    the  day  of 

December,  in  the  year  eighteen  hundred  and  sixty-seven,  at  the 
December  term  thereof,  and,  for  the  said  state  of  Ohio,  gives 
the  said  court  here  to  understand  and  be  informed  that  the  Cin- 
cinnati Gas-Light  and  Coke  Company,  for  the  space  of  one  year  now 
last  past  and  upward,  at  Cincinnati,  in  the  county  of  Hamil- 
ton, to  wit,  at  Columbus,  in  the  county  of  Franklin  aforesaid,  in  the 
said  state,  have  used,  and  still  do  use,  without  any  warrant,  grant  or 
charter,  the  following  liberties,  privileges,  and  franchises,  to  wit,  that 
of  being  a  body  corporate  and  politic  in  law,  fact  and  name,  by  the 
name  of  The  Cincinnati  Gas-Light  and  Coke  Company,  and  by  the 
same  name  to  plead  and  be  impleaded  unto,  answer  and  be  answered 
unto;  and  also  the  following  liberties,  privileges  and  franchises,  to 
wit,  that  of  having  and  exercising  an  exclusive  right  to  open  and 
use  the  streets,  lanes,  alleys,  commons  and  public  grounds  of  the 
city  of  Cincinnati  for  the  introduction  of  pipes  and  other  apparatus 
for  gas,  for  the  purpose  of  conveying  gas  to  the  said  city  and 
citizens  thereof;  and  also  the  following  liberties,  privileges  and  fran- 
chises, to  wit,  that  of  conveying  gas  through  pipes  and  other  appa- 
ratus laid  in  the  streets,  lanes,  alleys,  commons  and  public  grounds 
of  the  said  city  of  Cincinnati,  and  supplying  the  same  to  said  city  and 
the  citizens,  and  charging  as  and  for  the  price  thereof  at  the  rate  of 
two  dollars  and  fifty  cents  for  every  thousand cnhic  feet  thereof,  to  each 
consumer  of  the  same;  all  which  said  liberties,  privileges  and  fran- 
chises the  said  Cincin?iati  Gas-Light  and  Coke  Company,  during  all  the 
time  aforesaid,  have  usurped,  and  still  do  usurp,  upon  the  state  of 
Ohio,  to  its  great  damage  and  prejudice. 

Whereupon,  the  said  attorney-general  prays  the  advice  and  judg- 
ment of  the  said  court  in  the  premises,  and  due  process  of  law 
against  The  Cincinnati  Gas-Light  and  Coke  Company  aforesaid  in  this 
behalf,  to  be  made  to  answer  to  the  state  of  Ohio  by  what  warrant 
they  claim  to  have,  use,  and  enjoy  the  liberties,  privileges  and  fran- 
chises aforesaid. 

W.  H.  West,  Attorney-General. 

AGAINST  RAILROAD  COMPANY  CLAIMING  CANAL   LANDS. 

Form  No.  6447. 

(Precedent  in  Ohio  v.  Pittsburg,  etc.,  R.  Co.,  53  Ohio  St.  190.)' 

{Title  of  court  and  cause  as  in  Form  No.  6^33. ) 

Now  comes  John  K.  Richards,  attorney-general  of  the  state  of  Ohio, 
by  direction  of  the  general  assembly  of  the  state  of  Ohio,  and  gives 
the  court  to  understand  and  be  informed: 

I.  That  the  defendant,  the  Pittsburg,  Cincinnati,  Chicago  and  St. 
Louis  Railway  Company,  is  a  consolidated  railroad  company,  being  a 
corporation  engaged  in  operating  a  railroad  in  the  state  of  Ohio  and 

1.  The  court  held  in  this  case  that  quo  warranto  would  lie,  and  rendered 
judgment  for  the  relator. 

706  Volume  5. 


6447.  CORPORATIONS.  6447. 

in  other  states,  formed  on  the  28th  day  oi  August^  i89^,  by  the  con- 
solidation under  and  in  accordance  with  the  laws  of  Ohio,  of  the  Fitis- 
burg,  Cincinnati  and  St.  Louis  Railway  Company,  hereinafter  referred  to, 
a  railroad  corporation  then  and  prior  thereto  owning  and  operating  a 
railroad  within  the  state  of  Ohio  and  other  states,  and  the  Chicago, 
St.  Louis  and  Pittsburg  Railroad  Company,  a.n6.  the  Cincinnati  and  Rich- 
mond Railroad  Cofnpany,  and  the  Jeffersonville,  Madison  and  Indian- 
apolis Railroad  Company. 

2.  That,  in  the  year  iS69,  the  said  Pittsburg,  Cincinnati  and  St. 
Louis  Railway  Company,  one  of  the  constituent  companies  of  the 
defendant  corporation,  leased  perpetually  the  line  of  railroad  of  the 
Little  Miami  Railroad  Company,  a  corporation  formed  under  the  laws  of 
Ohio,  and  then  owning  and  operating  a  line  of  railroad  from  Cincin- 
nati, Ohio,  to  Columbus,  Ohio,  together  with  all  the  rights,  privileges 
and  contracts  belonging  to  '&^\6.  Little  Miami  Railroad  Company ,  and  at 
that  time  entered  into  the  enjoyment  thereof  under  said  lease,  and  so 
continued  up  to  the  time  of  its  merger  by  consolidation  into  the 
defendant  corporation,  when  the  defendant  entered  upon  the  enjoy- 
ment thereof  and  still  continues  so  to  enjoy  the  same. 

3.  That,  on  and  prior  to  the  2Jtlh  day  ol  March,  i863,  the  state  of 
Ohio  was  the  owner  in  fee  and  in  full  use  and  possession  of  that  part 
of  the  Miami  and  Erie  canal  extending  from  the  east  side  of  Broad- 
way street,  in  the  city  of  Cincinnati,  to  the  Ohio  river,  including  the 
width  thereof,  as  then  owned  and  held  by  the  state,  the  same  being  a 
part  of  the  canal  system  and  public  works  of  the  state  of  Ohio. 

4.  That,  on  said  2Jfth  day  oi  March,  \Z63,  the  general  assembly  of 
the  state  of  Ohio  passed  the  following  act:  (60  O.  L.,  44.)  (Here 
was  set  out  the  act!)^ 

5.  That,  in  accordance  with  the  provisions  of  section  three  of  the 
act  last  mentioned,  the  council  of  the  city  of  Cincinnati,  by  a  vote  of 
not  less  than  two-thirds  of  the  whole  number  of  members  thereof, 
decided  to  use  said  part  of  said  canal  as  authorized  in  the  act,  and 
made  known  its  decision  to  the  governor  of  -the  state,  and  there- 
upon, on  the  28th  day  of  April,  1 86<?,  David  Tod,  then  governor  of 
Ohio,  on  behalf  of  the  state,  executed  and  delivered  to  the  city  of 
Cincinnati  the  following  grant  of  the  part  of  the  canal  described  in 
the  act,  for  the  uses  and  purposes  and  upon  the  terms  and  conditions 
specified  in  said  act:  (Here  was  set  out  the  grant ^ 

6.  That  the  city  of  Cincinnati  duly  accepted  said  grant,  on  the  19th 
day  oi  February,  i86^  for  the  purpose  of  entering  upon,  improving 
and  occupying  the  part  of  the  canal  described  in  said  act  as  a  public 
highway  and  for  sewerage  purposes,  passed  the  following  ordinance: 
(Jlere  was  set  out  the  ordinance.y 

1.  The  title  of  the  act  referred  to  in  the  city  of  Cincinnati  to  a  part  of  the  Miami 
text  was  as  follows:  "An  Act  to  author-  and  Erie  canal."  The  deed  is  set  out  in 
ize  the  city  of  Cincinnati  to  enter  upon  full  in  the  reported  case.  It  was  signed 
and  occupy  a  part  of  the  Miami  and  and  executed  by  the  governor  and  sec- 
Erie  canal  as  a  public  highway  and  retary  of  the  state,  with  the  great  seal 
general   sewerage  purposes."     The  act  of  the  state  affixed. 

is  set  out  in  full  in  the  reported  case.  3.  The  title  of  the  ordinance  referred  to 

2,  The  grant  referred  to  in  the  text  was  in  the  text  was  as  follows:  "Ordinance 
a  "  deed  from  the  state  of  Ohio  to  the     No.  321,  to  open,    widen  and  establish 

707  Volume  5. 


6447.  CORPORATIONS.  6447. 

7.  That  the  city  of  Cincinnati^  having,  in  accordance  with  the  act  of 
March  2^,  iS63,  submitted  to  the  Board  of  Public  Works  of  the  State 
of  Ohio  its  plan  for  the  improvement  of  the  part  of  the  canal 
described  in  said  act,  and  the  same  having  been  duly  approved  by 
said  board,  proceeded  to  and  did  enter  upon  that  part  of  the  Miami 
and  Erie  canal  extending  from  the  east  side  of  Broadway  to  the  Ohio 
river,  under  the  said  grant  from  the  state,  and  proceeded  to  and  did 
improve  and  occupy  the  same,  in  pursuance  of  the  ordinance  quoted, 
as  a  public  highway  and  for  sewerage  purposes,  in  the  manner  and  to 
the  extent  hereinafter  described  and  not  otherwise:  Land  lyingalong 
and  adjacent  to  the  canal  was  condemned  by  the  city  of  Cincinnati 
sufficient  to  open  Eggleston  avenue  the  full  width  of  ninety  feet  from 
the  Ohio  river  to  Broadway.  Along  Eggleston  avenue  and  within  the 
limits  of  the  canal,  the  city,  between  the  years  iS^Pand  1 875  or  i87^ 
constructed  a  large  sewer  from  Broadway  to  the  Ohio  river,  and  over 
this  sewer  a  covered  raceway  to  conduct  the  water  leased  by  the 
state  for  power  purposes  prior  to  the  grant  aforesaid.  About  this 
time  the  city  filled  the  gullies  and  ditches  of  the  canal  and  partially 
graded  Eggleston  avenue  from  Eifth  street  to  Broadway. 

For  the  improvement  of  Eggleston  avenue  the  city  expended  in  all 
the  following  sums:  {^Here  were  enumerated  the  expenditures.')^ 

The  city  has  never  permanently  graded  and  paved  said  street  for 
use  as  a  public  highway  as  are  other  improved  streets  of  the  city. 
Excepting  the  construction  of  the  sewer  and  raceway  aforesaid,  no 
work  whatever  in  the  way  of  improving  Eggleston  avenue,  between 
Pearl  street  and  the  Ohio  river,  has  ever  been  done  by  the  city. 

8.  That,  on  November  16,  i867,  the  city  of  Cincinnati,  by  resolution 
of  its  common  council,  granted  to  the  said  Little  Miami  Railroad  Com- 
pany, a  corporation  under  the  laws  of  Ohio,  then  owning  and  operating 
a  line  of  railroad  from  Cincinnati,  Ohio,  to  Columbus,  Ohio,  the  right  to 
lay  down  and  use  a  railroad  track  on  Eggleston  avenue,  extending 
from  Pearl  street  north  to  Broadway,  the  said  Little  Miami  Railroad 
Company  being  the  lessor  of  the  Pittsburgh,  Cincinnati  and  St.  Louis 
Railway  Company,  one  of  the  constituent  companies  of  the  defendant 
consolidated  corporation.  In  the  year  i876,  the  said  Pittsburgh, 
Cincinnati  and  St.  Louis  Railway  Company,  then  the  lessee  of  Xht  Little 
Miami  Railroad  Company,  built  said  railroad  track  along  the  said 
portion  of  Eggleston  avenue,  and  it  and  the  defendant  company  have 
ever  since  continued  to  use  the  same  for  railroad  purposes,  and  have 
constructed  for  many  property  owners  on  and  nesLV  Eggleston  avenue 
connecting  tracks  leading  from  said  line  on  Egglestonsivenue  into  the 
private  property  of  said  persons,  for  use  in  the  conduct  of  their  busi- 
ness, and  large  outlays  have  been  made,  both  by  said  railroad  com- 
panies and  by  said  persons,  upon  the  faith  of  said  grant  by  said  city. 
Since  the  construction  and  use  of  said  railroad  track  along  Eggleston 
avenue,  a  large  number  of  factories  and  warehouses  have  been  located 
and  built  on  and  near  the  avenue  because  of  the  existence  of  the 
track,  and  the  railroad  facilities  thereby  afforded. 

Eggleston   avenue    the   full    width  of        1.  The  ezpenditores  referred  to  in  the 
ninety  (90)  feet  from  the  Ohio  river  to     text  were  itemized,  and  amounted  in  all 
Broadway."     The  ordinance  is  set  out     to  $753,609. 
in  full  in  the  reported  case. 

708  Volume  5. 


6447.  CORPORATIONS.  6447. 

9.  That,  prior  to  the  building  of  the  tracks  mentioned  in  the  last 
paragraph,  namely,  on  the  first  day  of  December,  i87i,  the  city  of 
Cincinnati  passed  the  following  ordinance,  vacating  Eggleston  avenue 
and  Kilgour  street,  between  Front  and  Pearl  streets  (said  Kilgour 
street  not  being  involved  in  this  controversy),  and  granting  the  same 
to  the  Newport  and  Cincinnati  Bridge  Company,  and  the  Little  Miami 
Railroad  Company  and  its  lessees,  for  railroad,  bridge  and  depot  pur- 
poses, subject,  however,  to  the  rights  of  the  state  of  Ohio,  and  upon 
certain  conditions  and  under  certain  restrictions,  which  are  set  out  ia 
the  ordinance:  {Here  was  set  out  the  ordinance.')^ 

10.  That,  immediately  thereafter,  the  Newport  and  Cincinnati 
Bridge  Company  and  the  Little  Miami  Railroad  Company  and  its 
lessees,  filed  with  the  city  clerk  of  Cincinnati  a  written  acceptance  of 
the  said  ordinance  vacating  Eggleston  avenue  and  Kilgour  street 
between  Front  and  /'^ar/ streets,  and,  thereupon,  the  said  companies 
entered  into  possession  of  that  part  of  Eggleston  avenue  lying 
between  Front  and  Pearl  streets  in  the  city  of  Cincintiati,  and  have 
ever  since  occupied  and  used  the  same  for  railroad,  bridge  and  depot 
purposes,  the  part  of  said  ground  occupied  and  used  by  the  Little 
Miami  Railroad  Company  and  its  lessees  and  the  nature  of  the  occupa- 
tion and  use  being  described  in  the  next  succeeding  paragraph. 

11.  Included  in  the  part  oi  Eggleston  avenue  between  Front  and 
Pearl  streets  vacated  as  aforesaid  by  the  city  of  Cincinnati,  was 
the  following  described  real  estate,  which  was  formerly  a  part  of 
the  Miami  and  Erie  canal,  the  use  of  which  was  granted  to  the  city 
of  Cincinnati  for  a  public  highway  and  for  sewerage  purposes  by  the 
act  of  March  2Jf.,  i?>63,  as  already  set  forth:  (^Here  follows  in  detail  a 
description  of  the  property. ) 

12.  That  that  part  of  Eggleston  avenue  between  Front  street  and 
the  Ohio  river,  including  a  part  of  the  Miami  and  Erie  canal,  extend- 
ing from  Front  street  to  the  Ohio  river,  the  use  of  which  was  granted 
by  the  state  of  Ohio  by  the  act  of  March  2J^,  iS63,  to  the  city  of  Cin- 
cinnati for  a  public  highway  and  for  sewerage  purposes,  some  years 
ago  was  taken  possession  of,  and  since  then  and  for  a  long  time,  has 
been  and  is  now  occupied  wholly  by  the  yard  tracks,  side  tracks  and 
switches  of  the  Pittsburgh,  Cincinnati  and  St.  Louis  Railway  Company 
and  the  defendant  corporation,  and  has  for  a  long  time  been  and  now  is 
used  exclusively  by  said  railroad  companies  for  railroad  purposes, 
the  city  of  Cincinnati  having  abandoned  the  use  of  said  street  as  a 
public  highway,  although  the  large  sewer  conducted  down  Eggleston 
avenue  still  passes  under  this  abandoned  portion  to  the  Ohio  river, 
and,  by  reason  of  such  use  and  occupation,  it  has  become  and  is 
impossible  to  use  said  premises  as  and  for  a  public  highway. 

13.  The  plaintiff  avers  and  charges,  that,  subject  to  the  rights, 
privileges  and  easements  therein,  which  were  granted  to  the  city  of 
Cincinnati  \iy  the  state,  under  the  act  of  March  2J^,  i863,  excepting, 
however,  such  of  the  rights,  privileges  and  easements  thus  granted 
as,  by  reason  of  the  facts  herein  above  stated,  have  since  then  been 

1.  The  title  of  the  ordinance  referred  to  and  Kilgour  street,  between  Front  and 
in  the  text  was  as  follows  :  "Ordinance  Pearl  streets."  The  ordinance  is  set  out 
No.   629,  to  vacate   Eggleston  avenue     in  full  in  the  reported  case. 

709  Volume  5. 


6447.  CORPORATIONS.  6447. 

released,  abandoned  or  forfeited  by  said  city,  the  state  of  Ohio  has 
been,  since  the  said  2Jtih  day  oi  March,  i863,  and  now  is,  the  owner  in 
fee  and  entitled  to  the  full  use  and  possession  of  that  part  of  the 
Miami  and  Erie  z2iw^X  extending  from  the  east  side  oi  Broadway  va. 
the  city  of  Cincinnati  to  the  Ohio  river,  including  the  width  thereof, 
as  owned  and  held  by  the  state  on  said  date. 

14.  Plaintiff  further  avers  and  charges,  that  the  city  of  Cincinnati 
had  no  power  or  authority  to  grant  to  the  Little  Miami  Railroad 
Cotnpa7iy  or  its  lessees,  the  right  to  lay  and  use  a  railroad  track  or 
tracks  in  Eggleston  avenue  as  aforesaid,  on  canal  property,  belonging 
to  the  state,  which  the  state  had  permitted  the  city  of  Cincinnati  to 
enter  upon,  improve  and  occupy  only  as  a  public  highway  and  for 
sewerage  purposes;  and  that  the  construction  and  use  of  said 
railroad  tracks  by  the  Pittsburgh,  Cincinnati  and  St.  Louis  Railroad 
Company  and  the  defendant  corporation  as  aforesaid,  was  and  is 
inconsistent  with  the  use  granted  to  the  city  of  Cincinnati,  and  in 
violation  of  the  rights  of  the  state  and  in  contravention  of  law. 

15.  Plaintiff  further  avers  and  charges,  that  the  vacation  oi  Eggle- 
ston avenue  between  Front  and  Pearl  streets  as  aforesaid,  was  an 
abandonment  by  said  city  of  the  same,  and  of  the  canal  property 
of  the  state  embraced  therein  for  use  as  a  public  highway,  and  that 
the  construction  by  the  Little  Miami  Railroad  Company  and  its  lessee 
and  the  defendant  of  a  permanent  passenger  depot  and  a  permanent 
freight  depot  as  aforesaid,  on  land  belonging  to  the  state  already 
described,  was  and  is  an  authorized  and  wrongful  occupation  and 
use  of  the  property  of  the  state  which  was  granted  to  the  city  of 
Cincinnati  for  use  only  as  a  public  highway  and  for  sewerage  pur- 
poses; and  that  such  occupation  and  use  of  said  canal  land  by  the 
defendant  was  and  is  inconsistent  with  the  use  granted  the  city  of 
Cincinnati,  and  was  and  is  repugnant  to  and  subversive  of  the  rights 
of  the  state  and  of  the  public  in  said  land,  and  in  contravention  of 
law. 

16.  Plaintiff  further  avers  and  charges,  that  the  occupation  and 
use  of  Eggleston  avenue  and  the  canal  property  of  the  state  within 
its  limits  between  Front  street  and  the  Ohio  river,  by  the  yard  tracks, 
side  tracks  and  switches  of  the  defendant  corporation,  was  and  is  an 
abandonment  of  the  same  by  the  city  of  Cincinnati  as  a  public  high- 
way, and  was  and  is  inconsistent  with  the  use  granted  and  permitted 
to  the  city  of  Cincinnati,  and  was  and  is  without  authority  and  in 
contravention  of  law,  and  repugnant  to  and  subversive  of  the  rights 
of  the  public  and  the  state  in  said  land. 

17.  The  plaintiff  further  avers  and  charges,  that  the  defendant 
railway  company,  in  locating,  constructing  and  operating  its  railway 
tracks  and  switches  as  aforesaid  in  and  along  Eggleston  avenue  and 
the  part  of  the  Miami  and  Erie  canal  embraced  therein  between 
Broadway  and  Pearl  streets ;  and  in  construction,  occupying  and 
using  its  permanent  passenger  depot  and  permanent  freight  depot  as 
aforesaid,  on  the  part  of  the  Miami  and  Erie  canal  before  described, 
embraced  within  the  limits  of  Eggleston  avenue  between  Pearl  and 
Front  streets,  as  originally  established;  and  in  locating,  constructing 
and  operating  its  yard  tracks,  side  tracks  and  switches  as  aforesaid, 

710  Volume  5. 


6448.  CORPORATIONS.  6448. 

on,  across  and  over  that  part  of  the  Miami  and  Erie  canal  embraced 
within  the  limits  of  Egglestou  avenue  between  Front  street  and  the 
Ohio  river,  as  originally  established,  is  now  and  has  been  for  some 
time  past,  usurping  and  unlawfully  exercising  and  using  rights, 
privileges  and  franchises,  in  contravention  of  law. 

Prayer  —  The  plaintiff  prays  the  advice  of  the  courtln  the  premises, 
and  that  the  defendant  railroad  company  be  compelled  to  answer  by 
what  warrant  it  claims  to  have,  use  and  enjoy  the  rights,  privileges 
and  franchises  aforesaid;  and  that  it  be  ousted  from  exercising  the 
same,  and  be  compelled  to  remove  its  tracks  and  switches  from  the 
part  of  the  Miami  and  Erie  canal  embraced  within  the  limits  of  Eggie- 
ston  avenue  between  Broadtuay  and  /*^ar/ streets ;  and  be  compelled 
to  remove  its  passenger  depot  and  freight  depot  and  railroad  tracks 
from  the  part  of  the  Miami  and  Erie  canal,  before  described, 
embraced  within  the  limits  of  Eggleston  avenue  between  Pearl  and 
Front  streets  as  originally  established;  and  that  it  be  compelled  to 
remove  its  side  tracks,  yard  tracks  and  switches  from  that  part  of 
the  Miami  and  Erie  canal  embraced  within  the  limits  of  Eggleston 
avenue  between  Front  street  and  the  Ohio  river  as  originally  estab- 
lished ;  and  the  plaintiff  further  prays  that  such  other  relief  be  granted 
in  the  premises  as  to  the  court  may  seem  just  and  proper. 

John  K.  Richards,  Attorney-General. 

Joseph  B.  Foraker, 

David  K.  Watson^ 

Of  Counsel. 

(3)  Cross-petition  of  Creditor  of  Insolvent  Corporation. 

Form  No.  6448. 

(Precedent  in  Peter  v.  Farrel  Foundry,  etc.,  Co.,  53  Ohio  St.  534.)' 

•-T-         o       4.  '  (•  In  the  Court  of  Common  Pleas. 

Lucas  County,  ss.      J  •' 

William  Peter,  Sarah  E.  Peter,  Horace  S. 

Walbridge,  S.  Cornell  Walbridge,  Michael 

J.    Cooney  and  Charles  R.    Faben,  Jr., 

plaintiffs, 

against 

The  Union  Manufacturing  Company, 

defendant. 

Now  comes  the  defendant  and  cross-petitioner,  the  Farrel  Foundry 

and  Machine  Company,  by  its    attorney,  Jeremiah  Mason,  and  for  its 

1,  Cross-petition  is  the  proper  remedy  An  answer  in  the  natore  of  a  eross-peti- 

by  a  creditor  of  a  corporation  which  is  tion  which  discloses  the  assets  of  the 

insolvent  and  its  assets  in  the  hands  of  concern  in  addition  to  those  disclosed 

a  receiver  who  seeks  the  enforcement  by  the  petition,  or  shows  a  title  in  the 

of  the  statutory  liability  of  stockholders,  party  filing  the  cross-petition  to  a  share 

notwithstanding  said  creditor  has  not  in   the  distribution  of   the  assets,  was 

reduced  his  claim  to  judgment.     Peter  held  in  this  case  to  be  good  as  against  a 

V.   Farrel  Foundry,  etc.,  Co.,   53  Ohio  demurrer  for  failure  to  disclose  a  cause 

St.  534.  of  action  "in  favor  of  the  defendant 

711  Volume  5. 


Answer  and  Cross-peti- 
tion of  the  Farrel 
Foundry  and  Machine 
Company. 


6448.  CORPORATIONS.  6448. 

answer  and  cross-petition  for  the  petition  of  the  plaintiff  herein, 
says:]^ 

I.  For  first  cause  of  action  it  says  that  it  is  a  corporation,  organized 
under  the  laws  of  the  state  of  Connecticut^  for  the  manufacture  and 
sale  of  chilled  rolls  and  other  machinery,  located  and  having  its 
principal  place  of  business  in  the  town  of  Ansonia,  in  said  state. 
Defendant,  the  Union  Manufacturing  Company,  is  a  corporation, 
organized  under  the  laws  of  the  state  of  Ohio  for  the  manufacture 
and  sale  of  iron  and  wooden  ware;  and  was  until  the  date  of  the 
commencement  of  this  action  engaged  in  carrying  on  the  business 
for  which  it  was  incorporated,  as  set  forth  in  plaintiff's  petition. 

During  the  months  of  October,  November  and  December,  i889,  this 
cross-petitioner,  at  the  request  of  said  defendant,  shipped  from  An- 
sonia to  Toledo,  and  delivered  to  defendant,  fifty-six  chilled  rolls, 
grooved.  In  consideration  of  such  sale  and  delivery,  said  defendant 
at  said  dates  promised  to  pay  this  cross-petitioner  sixteen  dollars  for 
each  of  said  rolls,  in  the  aggregate  eight  hundred  and  ninety-six  dollars, 
forthwith  thereafter.  Said  defendant  has  not  paid  any  part  of  said 
moneys,  although  requested  by  this  cross-petitioner  so  to  do. 

Defendant  is  entitled  to  a  credit  of  two  and  twenty-three  one-hun- 
dredths  dollars  for  an  overcharge  of  freight  upon  a  shipment  of  eight 
of  said  rolls  made  on  the  28th  of  October,  iS89,  and  by  said  defendant, 
paid  to  the  carrier  on  the  9th  day  of  November,  iS89.  It  is  entitled 
to  no  other  credit  nor  offset. 

The  respective  dates  at  which  said  rolls  were  sold,  shipped  and 
delivered  were  as  follows:     (^Here  ivas  set  out  an  itemized  statement.^ 

Said  rolls  were  purchased  by  said  defendant,  to  be  by  it  used  for 
the  manufacture  of  the  articles  in  which  it  dealt,  and  were  by  it  applied 
to  such  purpose. 

Wherefore  said  defendant  is  indebted  to  this  cross-petitioner  in 
the  sum  of  eight  hundred  and  ninety-three  and  seventy-seven  one  hundredths 
dollars,  with  interest  thereon  from  the  fourteenth  day  of  December, 
1&89. 

This  cross-petitioner  has  never  owned  any  of  the  stock  of  said 
defendant. 

When  said  goods  were  by  this  cross-petitioner  sold  and  delivered 
as  aforesaid,  said  defendant  was  by  cross-petitioner  believed  to  be  in 
good  credit  and  perfectly  solvent.  But  in  fact  said  defendant  then 
was  and  long  theretofore  had  been  and  still  is  insolvent.  It  then 
owed,  and  still  owes,  more  money  than  all  of  its  assets  were  or  are 
of  value  sufficient  to  pay.  Nearly  the  entire  indebtedness  [ajforesaid 
was  by  defendant  then  owed,  and  is  still  owed  to  its  stockholders. 
The  amount  by  it  owed  to  this  cross-petitioner  and  other  persons 
not  stockholders  was  and  is,  in  the  aggregate,  small.     Said  amount 

and  against  the  plaintiff  between  whom  to  him  with  a  cause  of  action  against 

the  several  judgments  might  be  had  in  all  the  stockholders  of  the  concern,  up- 

an    action."     Peter  v.  Farrel   Foundry,  on    their   statutory    liability   as    such 

etc.  Co..  53  Ohio  St.  534.  stockholders.     Peter  z/.  Farrel  Foundry, 

Defendant  may  join  in  his  cross-petition  etc.,  Co.,  53  Ohio  St.  534. 

a  cause  of  action  for  money  payable  to  1.  The  words  within  []  do  not  appear 

the  insolvent  corporation   by  a  stock-  in    the  reported   case,    but   have   been 

holder  thereof  on  account  of  stock  issued  added  to  complete  the  form. 

712  Volume  5. 


6448.  CORPORATIONS.  6448. 

was  and  is  much  less  than  the  value  of  the  tangible  assets  then  owned 
by  said  defendant  corporation,  now  in  the  possession  of  Alvin  Peter 
as  its  receiver  in  this  action. 

On  the  twenty- second  day  oi  January,  i890,  the  board  of  directors 
of  said  defendant  was  composed  of  seven  of  its  stockholders,  to  wit: 
(naming  the  stockholders).  No  change  has  since  been  made  in  the 
composition  of  said  board. 

Said  defendant  corporation  was  organized  in  i87^,  with  an  author- 
ized capital  stock  oi  fifty  thousand  dollars.  Said  authorized  capital 
stock  has  been  by  the  stockholders  of  defendant  successively  in- 
creased: April  12,  1 875,  to  one  hundred  thousand  ^oWslts;  September 
19,  i881,  to  three  hundred  thousand dioWdc^s',  and  July  SO,  iS86,  to  one 
million  dollars,  all  of  said  stock  being  divided  into  shares  of  one  hun- 
dred [dollars]  each.  Of  said  stock  at  least  seven  hundred  and  twenty- 
four  thousand  five  hundred  dollars  have  been  by  said  corporation 
issued  to  its  stockholders.  A  very  small  portion  thereof  is  fully  paid 
up  stock.  On  the  contrary,  nearly  the  entire  amount  of  said  stock 
has  been  by  defendant  issued  to  its  shareholders  in  exchange  for 
moneys  by  said  respective  stockholders  paid  to  defendant  therefor, 
ranging  respectively  from  twenty  to  seventy-five  cents  for  each  dollar 
of  the  nominal  amount  of  said  respective  shares  so  issued,  and  for 
moneys  by  said  respective  stockholders  paid  to  said  defendant  cor- 
poration much  less  in  amount  than  the  amount  of  the  respective 
shares  issued  to  them  in  consideration  therefor. 

Plaintiffs  own  jointly  no  stock  of  said  defendant  corporation. 
Plaintiffs  individually  own  stock  of  the  aggregate  amount  in  their 
petition  stated.  It  is  not  true  that  they  individually  own  any  large 
amount  of  paid  up  stock.  Nearly  the  entire  amount  of  stock  by  said 
individual  plaintiffs  held  was  by  defendant  issued  to  them  respectively 
paid  to  defendant  therefor,  much  less  in  amount  than  the  amount  of 
the  respective  shares  so  issued. 

Plaintiff,  Sarah  E.  Peter,  is  a  relative  of  plaintiff,  William  Peter, 
and  holds  a  certain  amount  of  the  last  aforesaid  described  stock  by 
said  defendant  corporation,  issued  to  said  William  Peter,  which  stock 
was  by  him  thereafter  transferred  to  her  without  consideration,  and 
is  by  her  held  in  trust  for  his  benefit. 

Said  defendant  corporation,  in  the  respective  months  of  April  and 
August,  iS83,  executed  two  trust  deeds  in  the  nature  of  mortgages, 
to  plaintiff,  Horace  S.  Walbridge,  as  trustee,  conveying  to  him  the 
real  estate  upon  which  the  factories  of  said  defendant  are  located,  to 
wit :  (Here  was  set  out  a  description  of  the  property,  and  the  substantial 
effect  of  the  trust  deeds,  which  were  to  secure  the  payment  of  certain  bonds.) 

Said  bonds  were  for  the  most  part  issued  to  stockholders  and 
directors  of  said  defendant  corporation  for  seventy-five  cents  by  them 
paid  to  said  defendant  for  each  dollar  by  said  bonds  promised  to  be 
paid,  and  for  sums  much  less  than  the  respective  amounts  by  said 
bonds  purporting  to  be  due.  Interest  has  been  paid  by  said  defend- 
ant to  the  first  day  of  October,  i8<?9,  upon  the  full  amount  to  that 
date  purporting  to  be  due  upon  the  principal  indebtedness  described 
in  said  bonds,  and  in  excess  of  the  interest  legally  payable  upon  the 
moneys  paid  by  the  parties  to  whom  said  bonds  were  respectively 

718  Volume  5. 


6448.  CORPORATIONS.  6448. 

issued,  and  by  said  defendant  received  therefor.  Said  bonds  are 
still  in  great  measure  held  and  owned  by  the  parties  to  whom  they 
were  originally  issued.  Said  trust  deeds  were  duly  recorded,  and 
the  indebtedness  evidenced  by  said  bonds  is  the  bonded  debt  of  said 
defendant  mentioned  in  plaintiff's  petition. 

The  unsecured  debt  owned  by  said  defendant  as  aforesaid  is  at 
least  one  hundred  and  sixty  thousand  diOWzx^.  Of  this  amount  yizw^j 
Secor,  of  Toledo,  aforesaid,  holds  two  thousand  dollars,  with  interest 
ivom  July  3,  iS89,  at  eight  percent,  per  annum,  evidenced  by  the 
promissory  note  of  said  corporation  for  that  amount  payable  to  his 
order. 

Said  defendant  corporation  has  been  at  no  time  indebted  to  plain- 
tiffs in  any  amount  jointly.  It  was  at  the  date  of  the  commence- 
ment of  this  action,  and  is  still,  indebted  to  plaintiffs,  William  Peter 
and  Horace  S.  Walbridge,  respectively,  in  amounts  which  aggregate 
at  least  Jifty  thousand  dollars. 

This  cross-petitioner  has  no  knowledge  of  the  property,  stock- 
holders or  liabilities  of  said  defendant  which  will  enable  cross- 
petitioner  to  make  its  statements  relative  thereto  more  specific  than 
is  herein  set  forth.  But  plaintiffs,  comprising  the  majority  of  the 
board  of  directors  of  said  defendant,  and  owning  more  than  one-third 
of  the  stock  by  said  corporation  issued,  were  at  the  date  of  the  com- 
mencement of  this  action  and  have  at  all  times  since  been  able  to 
inform  this  court  of  the  specific  property,  real  and  personal,  both 
legal  and  equitable,  of  said  defendant,  and  of  all  the  books,  vouchers 
and  securities  relating  thereto,  as  well  as  to  give  a  full,  just  and  true 
account  of  the  capital  stock  of  defendant,  the  names  and  residences 
of  the  stockholders,  the  number  of  shares  belonging  to  each,  the 
amount  paid  in  upon  such  shares  respectively,  and  the  amount  still 
due  thereon,  and  plaintiffs  were  and  have  been  able  to  give  to  this 
court  a  specific  statement  of  the  aforesaid  incumbrance  upon  the 
property  of  said  defendant,  and  of  each  of  its  existing  liabilities, 
specifying  the  name  and  residence  of  each  creditor,  and  nature  [of] 
each  debt,  and  the  true  consideration  received  by  the  defendant 
therefor.  Plaintiffs  were  at  the  date  of  the  commencement  of  this 
action  and  at  all  times  since  have  been  able  to  perform  their  obliga- 
tions to  apply  to  this  court  for  a  dissolution  of  said  defendant  cor- 
poration and  to  make  all  the  parties  and  prosecute  every  measure 
required  for  the  winding  up  of  the  affairs  of  said  defendant,  and  the 
disposal  and  distribution  of  its  assets  by  chapter  five  of  division  seven 
of  the  first  title  of  the  Revised  Statutes  of  Ohio.  Plaintiffs  have 
failed  to  request  such  dissolution,  and  furnish  the  court  said  infor- 
mation, and  make  any  creditor  or  stockholder  of  defendant  party  to 
this  proceeding  other  than  plaintiffs  themselves,  and  have  procured 
the  order  of  this  court  that  said  defendant  convey  its  entire  property, 
including  choses  in  action,  to  Alvin  Peter  as  its  receiver,  and  have  in 
behalf  of  said  corporation  placed  Alvin  Peter  as  such  receiver  in 
possession  and  control  of  the  entire  assets  of  said  corporation,  and 
have  in  every  respect  instituted  and  prosecuted  this  action  with 
intent  thereby  to  delay  and  hinder  and  defraud  this  cross-petitioner 
and  every  other  creditor  of  said  defendant  other  than   plaintiffs,  in 

714  Volume  5. 


6448.  CORPORATIONS.  6448. 

the  collection  of  their  respective  indebtedness  due  from  said  defend- 
ant by  appropriate  process  of  law,  and  with  intent,  in  view  of  the 
insolvency  of  the  defendant,  to  prefer  plaintiffs  as  creditors  of  said 
defendant  in  the  disposal  and  distribution  of  the  assets  of  said 
defendant,  and  the  proceeds  thereof  by  them  proposed  to  be  made 
in  this  action. 

Said  Alvin  Peter,  receiver,  is  the  son  of  plaintiff,  William  Peter, 
who  is  the  largest  individual  creditor  and  stockholder  of  said 
defendant,  and  since  the  date  of  the  commencement  of  this  action, 
said  Alvin  Peter  has  been  in  the  possession  of  the  entire  property  of 
said  defendant,  and  has  claimed  the  right  to  control  its  entire  choses 
in  action,  asserting  such  possession  and  claim  as  being  rightfully 
made  as  receiver  by  virtue  of  the  order  of  the  court  in  this  action. 
And  since  the  date  of  the  commencement  of  this  action  said  defend- 
ant has  transacted  no  business,  and  has  had  no  property  not  in  the 
possession  and  control  of  the  said  Alvin  Peter  as  receiver,  and  has 
neither  money,  credit  nor  materials  with  which  to  transact  any  busi- 
ness in  the  future. 

The  facts  relative  to  the  expediency  of  selling  the  entire  assets 
and  property  of  said  defendant,  other  than  the  unpaid  amounts  due 
from  its  stockholders  upon  their  capital  stock,  but  including  in  said 
sale  the  good-will  of  its  business,  as  an  establishment  in  active 
operation,  are  as  in  plaintiff's  petition  set  forth.  But  said  sale 
should  be  made  forthwith.  The  value  of  the  good-will  aforesaid  has 
deteriorated,  and  must  continue  to  deteriorate,  if  the  business  for- 
merly carried  on  by  said  defendant  corporation  shall  long  continue 
to  be  prosecuted  by  this  court  through  the  intervention  of  any 
receiver  or  trustee. 

2.  For  second  cause  of  action  this  cross-petitioner  repeats  the 
statements  of  its  first  cause  of  action,  as  though  the  same  were  here 
again  set  forth,  and  says  further,  that  the  entire  indebtedness  of  said 
defendant  corporation  to  this  cross-petitioner  and  all  its  other 
creditors  exceeds  the  value  of  its  entire  assets,  including  therein  the 
amount  of  the  unpaid  moneys  due  from  its  stockholders  upon  their 
stock  aforesaid  from  said  stockholders  collectible. 

3.  For  third  cause  of  action  this  cross-petitioner  repeats  the  state- 
ments of  its  first  and  second  causes  of  action,  as  though  the  same 
were  here  again  set  forth,  and  says  further,  that  in  order  to  fully 
pay  the  indebtedness  due  to  this  cross-petitioner  and  all  other 
creditors  of  said  defendant  corporation,  it  will  be  necessary  that 
each  of  its  stockholders  contribute  a  further  amount  in  proportion 
to  the  amount  of  the  stock  by  him  or  her  owned  or  held,  but  not 
exceeding  the  amount  of  said  stock. 

Wherefore  this  cross-petitioner,  in  behalf  of  itself  and  all  other 
creditors  of  said  corporation,  prays  that  the  court  ascertain  the 
entire  indebtedness  of  said  defendant  corporation,  the  respective 
parties  to  whom  the  same  is  due,  the  respective  amounts  thereof  due 
to  each  party  respectively,  and  the  respective  consideration  received 
by  said  defendant  corporation  therefor;  and  that  each  said  respective 
creditor,  by  appropriate  service  of  process  or  publication  of  notice, 
be  made  party  to  this  action  and  proceeding;  that  the  court  ascer- 

715  Volume  5. 


6448.  CORPORATIONS.  6448. 

tain  the  names  and  residences  of  the  past  and  present  stockholders 
of  said  defendant,  the  number  of  shares  issued  or  belonging  to  each, 
the  amount  paid  to  said  defendant  corporation  for  each  said  share, 
respectively,  and  the  amount  still  due  thereon;  and  that  each  said 
stockholder,  by  appropriate  service  of  process  or  publication  of 
notice,  be  made  party  to  this  action  and  proceeding;  that  the  court 
ascertain  the  total  amount  of  the  assets  and  choses  in  action  of  said 
defendant  now  in  the  possession  and  control  of  Alvin  Peter  as  receiver; 
and  order  all  the  same  other  than  said  moneys  unpaid  by  said  stock- 
holders upon  their  capital  stock  to  be  sold  as  an  entirety,  including 
the  good-will  of  defendant's  former  business;  or  in  such  other  man- 
ner as  shall  insure  the  best  price  for  said  assets  and  good-will;  that 
the  court  order  that  each  stockholder  liable  for  said  unpaid  amounts 
due  upon  his  capital  stock  pay  the  amount  so  due  to  such  receiver 
or  officer  as  the  court  shall  direct;  and  in  default  thereof  that  exe- 
cution shall  issue  therefor;  that  the  court  ascertain  the  further 
amount  due  from  each  stockholder  of  defendant  necessary  for  the 
payment  to  this  cross-petitioner  and  every  other  creditor  of  defend- 
ant of  the  full  amount  of  the  indebtedness  from  defendant  due, 
including  the  costs  and  expenses  of  this  action  and  proceeding,  with 
the  reasonable  counsel  fees  of  the  attorneys  of  this  cross-petitioner 
and  of  such  other  creditors  of  defendant  as  shall  in  good  faith 
endeavor  to  procure  an  equitable  distribution  of  its  assets  and  the 
moneys  due  from  its  stockholders  for  the  benefit  of  all  of  its 
creditors;  but  not  exceeding  the  amount  of  the  stock  by  each 
respective  stockholder  owned  or  held;  that  each  said  stockholder  be 
ordered  to  pay  the  further  amount  due  from  him  or  her  as  aforesaid 
to  such  receiver  or  other  officer  as  the  court  shall  appoint;  and  in 
default  thereof  that  execution  issue  therefor;  that  if,  in  consequence 
of  nonresidence  or  insolvency  the  amount  due  from  any  particular 
stockholder  cannot  be  collected,  then  that  each  solvent  stockholder 
within  the  jurisdiction  of  the  court  be  ordered  to  pay  as  aforesaid 
all  unpaid  moneys  due  upon  his  stock  and  such  further  moneys,  not 
exceeding  the  amount  of  his  stock,  as  shall  be  necessary  to  pay  the 
costs,  expenses  and  counsel  fees  aforesaid  and  all  creditors  of 
defendant,  with  right  thereafter  to  enforce  contribution  from  any 
other  stockholder  in  case  as  between  said  stockholders  the  party 
making  such  payment  has  paid  more  than  his  appropriate  share;  that 
all  the  moneys  realized  and  collected  as  aforesaid  be  distributed 
first  to  the  payment  of  the  costs,  expenses  and  counsel  fees  aforesaid; 
and  next  to  the  payment  of  the  entire  indebtedness  of  said  defend- 
ant corporation;  giving  the  preference,  if  necessary,  to  such  cred- 
itors of  defendant  as  shall  in  good  faith  co-operate  with  this 
cross-petitioner  in  its  efforts  to  secure  an  equitable  distribution  of 
the  moneys  due  from  said  defendant  and  its  stockholders  among  all 
the  creditors  of  defendant;  and  shall  with  this  cross-petitioner 
become  responsible  for  the  costs,  expenses  and  counsel  fees  afore- 
said. 

This  cross-petition,  in  behalf  of  itself  and  all  other  creditors  of  said 
defendant,  prays  that  this  court  grant  to  it  and  them  all  such  other 
and  further  relief  as  it  and  they  may  legally  and  equitably  claim. 

716  Volume  5. 


6449.  CORPORA  TIONS.  6449. 

But  should  this  court  refuse  to  permit  this  cross-petitioner  to 
intervene  in  behalf  of  any  other  creditor  of  said  defendant  than 
itself,  and  should  refuse  to  this  cross-petitioner  the  relief  herein 
before  prayed,  then  in  such  event  this  cross-petitioner  prays  that  the 
court  render  judgment  in  its  favor,  that  it  recover  from  the  defendant, 
the  Union  Manufacturing  Company ^  eight  hundred  and  ninety-three  and 
seventy-seven  one  hundredths  dollars,  with  interest  thereon  from  the 
fourteenth  day  oi December,  \%89\  that  execution  issue  therefor;  that 
the  order  directing  said  defendant  to  convey  its  property  to  Alvin 
Peter,  receiver,  be  rescinded  and  held  for  naught,  and  that  this  cross- 
petitioner  have  leave  to  cause  said  execution  to  be  levied  upon  all 
property  of  said  defendant  now  in  the  possession  oi  Alvin  Peter  as 
such  receiver. 

[The  Barrel  Foundry  and  Machine  Company, 

By  Jy^^waj  ^<f//^/-»  President.]^ 


e.  Answer  or  Plea,' 

(1)  Denying  Abuse  or  Misuse  of  Franchise. 

Form  No.  6449. 

(Precedent  in  State  v.  Greenville,  Bldg.,  etc.,  Assoc,  29  Ohio  St.  92.) 

\{Title  of  court  and  cause  as  in  Form  No.  644^.)  And  now  comes 
the  defendant.  The  Greenville  Building  and  Savings  Association,  by 
Jeremiah  Mason,  its  attorney,  and  for  answer  to  the  petition  of  the 
State  of  Ohio  on  the  relation  oi  John  Little,  attorney -general,  and 
says:]^ 

1.  That  it  is  not  true  that  it  has  unlawfully  exceeded  the 
powers  and  franchises  conferred  on  it  by  law,  nor  is  it  true  that  it 
has  assumed  or  claims  any  right  or  privileges  not  so  conferred. 

2.  That  it  is  not  true  that  it  permits  any  of  its  members  to  hold 
more  than  twenty  (20)  shares  of  its  stock,  nor  that  it  claims  any  right 
so  to  do. 

3.  That  it  is  not  true  that  it  has  exercised,  or  that  it  claims  to 
exercise,  banking  privileges,  and  it  says  that  the  loans  made  by  it,  and 
the  bonds,  etc.,  purchased,  have  been  merely  temporary  investments 
of  surplus  money,  and  that  it  has  long  since  ceased  to  make  any 
such  loans,  purchases  or  discounts,  or  any  such  investments. 

4.  That  it  is  not  true  that  said  defendant  corporation  has  in  the 
past,  or  does  now,  refuse  or  decline  to  loan  its  funds  to  its  members; 
but,  on  the  contrary,  says  that  it  is  now  and  always  has  been  ready  to 
loan  to  its  members,  in  accordance  with  the  laws  of  the  land  and 
the  rules  and  regulations  adopted  for  its  government  by  the  mem- 
bers of  said  association. 

1.  The  words  in  [  ]  do  not  appear  in  pleas,  generally,  consult  the  titles 
the  reported  case,  but  have  been  added  Answers  in  Code  Pleading,  vol.  i,  p. 
to  complete  the  form.  799:  Answers  in  Equity,  vol.  i,  p.  854; 

2.  For  formal  parts  of  answers   and  Pleas. 

717  Volume  5. 


6449. 


CORPORATIONS. 


6449. 


Wherefore,  defendant  prays  judgment;  that  said  information  be 
dismissed,  and  that  it  go  hence,  etc. 

\ Jeremiah  Mason,  Attorney  for  the  Defendant.]^ 
[(  Verification.')]  ^ 


1.  The  words  in  [  ]  do  not  appear 
in  the  reported  case,  but  have  been 
added  to  complete  the  form.  Consult 
the  title  Verifications. 

Another  Precedeat  —  Pennsylvania. — 
In  Hestonville,  etc.,  R.  Co.  v.  Phila- 
delphia, 89  Pa.  St.  210,  the  answer  of 
the  railroad  company  to  a  bill  seeking 
a  forfeiture  of  its  franchises,  omitting 
the  formal  parts,  was  as  follows: 

"  I.  That  they  were  created  by  an 
act  of  April  6th,  1859,  P.  L.  389,  with 
the  route  therein  described,  with  the 
power  to  lay  out  and  construct  a  rail- 
way. By  a  supplement  to  said  act, 
passed  March  8th,  i860,  P.  L.  123,  they 
were  expressly  authorized  to  lay  out 
and  construct  their  railway  tracks, 
from  the  bridge  at  Fairmountio  Callow- 
hill  street,  and  along  Callowhill  street 
to  Delaware  avenue,  and  to  0(,cupy  such 
other  street  or  streets  as  may  be  neces- 
sary to  reach  Twenty-first  or  Twentieth 
and  Callowhill  streets  from  said  bridge. 

2.  That  under  these  acts  there  was 
constructed  a  track  from  the  bridge  at 
Fairmount  westwardly  to  Hestonville. 

3.  That  by  an  act  passed  April  13th, 
1858,  P.  L.  257,  there  was  created  the 
Fairmount  Passenger  Railway  Company, 
with  power  to  construct  a  passenger 
railway  from  the  south  side  of  Fair- 
mount  to  Callowhill  street;  thence  east 
on  Callowhill  to  Twenty-third;  thence 
south  to  Vifte;  thence  east  to  Second; 
thence  south  to  Walnut  or  Dock;  thence 
west  to  Third;  thence  north  to  Pace; 
thence  west  to  Twenty-second;  thence 
north  to  Calloivhill  street,  with  a  double 
track  on  Callowhill  sirett  to  Fairmount. 
Section  7  provided:  'That  before  the 
said  company  should  use  and  occupy 
the  said  street  the  consent  of  the 
councils  of  the  city  of  Philadelphia 
shall  be  first  obtained.'  That  this  con- 
sent was  given. 

4.  That  by  the  Act  of  April  i6th, 
1858,  P.  L.  320,  there  was  created  the 
Fairmount  and  Arch  Street  City  Passenger 
Railway  Company,  with  power  to  con- 
struct a  passenger  railway  "  commenc- 
ing at  Tenth  and  Arch  and  continuing 
westwardly  along  the  same,  with  a 
double  track  to  Twentieth  and  Twenty- 
first  streets,  respectively,  with  single 
track  to  Callowhill  street,  and  thence 
westwardly     \yith     double     track     to 


bridge."  Section  7  provided:  "That 
before  the  said  company  shall  use  and 
occupy  the  said  streets,  the  consent  of 
the  councils  shall  be  first  obtained." 
On  Mayjth,  iSjc? (Ordinances  of  1858, 
177),  the  councils  disapproved  of  the  act 
and  refused  consent.  By  a  supplement 
to  the  aforesaid  act,  passed  March 
24th,  1859,  P-  L.  234,  it  was  enacted  that 
said  company  should  have  full  author- 
ity to  construct  and  lay  a  passenger 
railway  on  the  route  hereinbefore 
stated.  Section  3  provided,  that  "  after 
the  special  consent  of  the  councils, 
said  company  may,  in  lieu  of  two 
tracks  on  that  part  of  Callowhill  street 
which  is  between  Hamilton  and  Twenty- 
second,  construct  one  of  their  tracks 
on  Twenty-second  from  Callowhill  to 
Hamilton,  and  thence  west  on  Hamil- 
ton street  to  Callowhill  street.  " 

That  consent  was  given  by  an  or- 
dinance passed  April  23d,  1859  (Ordi- 
nances of  1859,  198).  In  accordance 
with  the  authority  of  said  acts,  railway 
tracks  were  laid  on  Twenty- second 
street  from  Callowhill  to  Hamilton  and 
thence  west  on  Hamilton  street  to  Cal- 
lowhill street. 

5.  Calloiohill  street,  from  the  bridge 
at  Fairmount,  is  between  curbs  twenty- 
nine  feet  in  width,  and  the  existence  of 
more  than  a  double  track  at  that  point 
would  sacrifice  the  other  uses  of  the 
highway.  If,  therefore,  the  defend- 
ants exercised  their  rights  as  a  sepa- 
rate corporation  to  lay  a  double  track 
on  Callowhill  street  between  these 
points,  and  the  Fairmount  Passenger 
Railway  Company  sought  to  exercise 
theirs,  and  the  Fairmount  and  Arch 
Street  City  Passenger  Railway  Company 
sought  to  exercise  theirs,  the  whole 
width  of  the  street  would  be  occu- 
pied without  space  between  each  set 
of  tracks. 

6.  Such  an  exercise  of  separate  cor- 
porate discretion  and  right  would  be 
impossible  of  execution,  as  cars  could 
not  pass  each  other,  and  therefore  the 
several  companies  did  by  agreements 
arrange  such  running  of  their  cars 
over  the  tracks  actually  laid  by  the 
Fairmount  Passenger  Railway  Compai  y 
and  by  the  Fairmount  and  Arch  Street 
City  Passenger  Railway  Company,  as 
secured  to  each  their  separate   circuits, 


718 


Volume  5. 


6450.  CORPORATIONS. 

(2)  Denying  Usurpation  of  Franchise. 


6450. 


Form  No.  6450. 
(Precedent  in  State  v.  Western  Irrigating  Canal  Co.,  40  Kan.  96.)' 


the  integrity  of  their  several  fran- 
chises and  the  accommodation  of  the 
passengers  seeking  the  cars  of  either. 
The  former  company  have  laid  a  track 
from  the  bridge,  along  Callowhill 
street  to  Twenty-third  street;  and  the 
latter  company  have  laid  a  track  from 
the  bridge  along  Callowhill  street  to 
Hamilton,  and  thence  eastwardly  along 
Hamilton  to  Twenty-second  sivtti.  These 
are  the  tracks  now  in  existence  and 
now  used. 

7.  That  by  reason  of  an  entire  alter- 
ation of  grades,  caused  by  the  con- 
struction of  the  double-decker  bridge 
at  Fairmount  and  of  the  necessities  of 
public  travel,  they  have  become  con- 
vinced that  the  franchise  of  a  double 
track  on  Callowhill  slrc^l  must  be  main- 
tained. Accordingly  they  have  made 
arrangements  to  remove  the  tracks  laid 
by  the  Fairmount  Passenger  Railway 
to  the  side  of  said  Callowhill  street 
and  to  lay  another  track  beside  it  on 
their  own  behalf.  The  effect  of  this 
would  be  that  the  double  tracks  now 
existing  on  Callowhill  street,  from  the 
bridge  to  Hamilton  street  would  be  con- 
tinued eastward  on  the  same  alignment. 

Respondents  admit  the  truth  of  the 
fix%\.five  paragraphs  of  the  bill.  Re- 
spondents deny  that  they  entered  into 
an  obligation  as  averred  in  the  sixth 
paragraph  of  said  bill;  but  are  advised 
that  it  is  immaterial,  inasmuch  as  the 
tenor  of  such  an  obligation  would  only 
be  that  respondents  should  comply  with 
such  ordinances  as  it  was  within  the 
power  of  the  city  of  Philadelphia  to 
pass.  Respondents  admit  the  truth  of 
the  seventh  paragraph  of  said  bill,  and 
that  the  averments  in  the  eighth  para- 
graph are  true;  but  respondents  are 
advised  that  said  ordinance,  so  far  as 
the  same  is  now  valid,  applies  exclu- 
sively to  the  original  construction,  and 
that  in  the  case  of  entire  compliance 
therewith,  the  purpose  thereof  is  fully 
met;  and  respondents  do  say  that  their 
charter  does  not  confer  any  power  on 
the  plaintiffs  to  regulate  or  control  them 
on  Callowhill  street,  east  of  the  bridge 
at  Fairmount.      And   respondents   are 


advised  that  the  assent  of  the  General 
Assembly  is  sufScient  and  ample,  and 
that  no  provision  of  their  charter  sub- 
jects them  to  a  further  assent  by  the 
councils  of  the  city  of  Philadelphia  to 
the  use  of  Callowhill  street.  Respon- 
dents admit  the  truth  of  paragraph  nine, 
but  are  advised  that  said  ordinance  is 
not  passed  pursuant  to  the  conditions 
of  the  Act  of  April  11,  1868,  as  above 
cited;  and  that  as  its  purpose  was  to 
secure  the  assent  of  the  councils  of  the 
city  to  remove  the  cobblestones  of  the 
highways,  it  cannot  apply  to  a  body 
corporate,  whose  occupation  and  use  of 
streets  for  the  purposes  of  their  char- 
tered route  had  already  been  assented 
to.  Respondents  admit  the  truth  of 
paragraph  ten,  and  of  paragraph  eleven; 
but  are  advised  that  the  same  is  imma- 
terial as  to  the  subject  matters  of  this 
bill  of  complaint,  inasmuch  as  these 
respondents,  without  such  merger  and 
consolidation,  have  the  grant  as  afore- 
said to  lay  the  track  on  Callowhill  street 
now  proposed. 

And  respondents  say,  that  if  para- 
graph twelve  in  said  bill  means  to  aver 
the  fact  differently  from  that  stated 
in  the  general  paragraphs  of  this 
answer,  then  they  deny  the  same  to  be 
so.  That  they  have  never  surrendered 
any  portion  of  their  franchise  to  the 
Commonwealth;  that  as  the  chartered 
powers  of  defendants  do  not  limit  the 
construction  of  their  road  to  any  term, 
that  completion  thereof,  or  the  change 
of  the  mode  of  running,  is  for  their  dis- 
cretion, as  the  owners  of  the  franchise, 
and  even  though  this  were  not  so,  plain- 
tiffs have  no  standing  in  this  court  to 
assert  a  loss  of  franchise  by  nonuser, 
this  being  wholly  for  the  Commonwealth, 
at  her  own  relation." 

1.  Judgment  was  rendered  in  tliis  case 
in  favor  of  the  defendant  for  all  costs, 
the  court  holding  that  an  irrigation 
company,  incorporated  under  the  laws 
of  Kansas  to  construct  and  operate  a 
canal  for  irrigation,  etc.,  can,  with  the 
consent  of  the  stockholders,  sell  its 
property  to  another  irrigation  com- 
pany, if  it  be  done  in  good  faith. 


719 


Volume  5. 


6450,  CORPORATIONS.  6460. 

[In  the  Supreme  Court  of  the  State  of  Kansas. 
The  State  of  Kansas,  on  the  relation  of  S.  B.  Bradford,  '\ 
Attorney-General,  Plaintiff,  I   . 

The  Western  Irrigating  Canal  Co.,  Defendant.         J 

Now  comes  the  defendant  herein,  and,  answering  the  petition  of 
plaintiff,  says:]^ 

That  the  Supreme  Court  of  the  State  of  Kansas  ought  not  to  take 
jurisdiction  in  this  case,  for  the  reason  that  no  public  question  is 
involved  therein;  that  this  suit  was  instituted  at  the  request  and 
suggestion  of  the  attorneys  of  one  A.  T.  Soule,  who  is  the  principal 
owner  of  the  Eureka  Union  and  so  called  Low-line  irrigating  canals; 
that  the  canals  of  this  defendant  and  of  the  said  A.  T.  Soule  come  into 
competition  with  each  other,  and  the  said  A.  T.  Soule  is  attempting 
to  monopolize  the  entire  irrigating  business  of  Ford  county,  and  as 
a  part  of  his  said  design  to  monopolize  the  irrigating  business  as 
aforesaid,  he  is  endeavoring  by  all  means  in  his  power  to  obstruct, 
hinder  and  delay  this  defendant  in  the  construction  of  its  canal; 
that  in  order  to  protect  its  rights,  the  defendant,  prior  to  the  insti- 
tution of  this  suit,  brought  a  suit  in  the  district  court  of  ^^r^  county, 
against  the  Low-line  Canal  Company,  one  of  the  companies  above 
named,  which  is  now  pending  and  undetermined;  that  it  was  upon 
the  representation  and  statements  of  the  said  Soule  and  his  attorneys 
that  the  attorney-general  was  induced  to  bring  this  suit,  and  the 
institution  thereof  is  one  of  the  means  used  by  the  said  A.  T.  Soule 
to  hinder,  delay,  annoy  and  oppress  this  defendant;  and  that  the 
matters  involved  in  this  suit  are  solely  matters  of  private  interest 
between  this  defendant  and  the  said  A.  T.  Soule,  and  not  of  a  public 
nature.  Defendant  therefore  asks  the  supreme  court  to  dismiss  said 
suit. 

Further  answering,  the  defendant  denies  that  it  has  assumed  or 
pretended  as  of  right  to  possess  or  use,  pursuant  to  a  purchase,  the 
franchise  of  the  Enterprise  Irrigating  Company,  denies  that  it  is  now 
unlawfully  exercising  or  in  any  manner  using  the  powers,  privileges 
or  franchises  of  the  said  Enterprise  Irrigating  Company;  denies  that 
it  has  attempted,  by  purchase  or  otherwise,  to  succeed  to  the  fran- 
chises authorized  by  law  to  be  exercised  by  the  said  Enterprise  Irri- 
gating Company;  denies  that  it  is  usurping,  intruding  into,  or  is 
unlawfully  holding  or  exercising  any  franchise  whatever. 

And  further  answering,  defendant  says:  It  has  no  knowledge  or 
information  of  the  existence  of  a  corporation  named  the  Enterprise 
Irrigating  Company,  or  that  any  such  company  ever  existed  in  the 
state  of  Kansas,  or  at  any  other  place. 

[Wherefore,  defendant  prays  judgment  that  the  petition  herein  be 
dismissed,  and  for  its  costs. 

Jeremiah  Mason,  Attorney  for  Defendant. 

{Verification.fy- 

1.  The  words  in  [  ]  do  not  appear  in        2.  Consult  the  title  Verifications. 
the  reported  case,  but  have  been  added        Investment  Company —  The  Ketnm  of 
to  complete  the  form.  Officers  to  Quo  Warranto.  —  Missouri. — 

720  Volume  5. 


6450. 


CORPORA  TIONS. 


6450. 


In  State  v.  Talbot,  123  Mo.  69,  in  which 
proceedings  the  state  assailed  a  cOtpo- 
ration  by  a  quo  warranto  for  illegal 
acts,  the  defendants,  among  other 
things,  alleged  in  their  return  as  fol- 
lows: "  Farther  making  return,  the  said 
defendants  show  that  subsequently  to 
the  issuance  of  said  certificate  of  incor- 
poration to  the  Guarantee  Investment 
Company,  as  aforesaid,  and  while  the 
said  corporation  was  carrying  on  in  this 
state  the  business  of  selling,  disposing 
of,  and  paying  bonds  issued  on  the  in- 
stalment plan,  the  said  corporation, 
together  with  all  others  of  like  incorpo- 
ration under  the  laws  of  this  state,  was 
confirmed,  ratified  and  recognized  by 
the  state  of  Missouri  in  its  existence, 
franchise,  capacity  and  powers  as  a  cor- 
poration by  reason  and  by  means  of  an 
act  of  the  general  assembly  entitled 
'  An  Act  to  regulate  bond  investment 
companies  and  companies  organized  to 
place  or  sell  bonds,  certificates  or  de- 
bentures on  the  instalment  or  partial 
payment  plan,'  and  approved  April  21, 
1893;  that  said  statute  became  opera- 
tive as  a  law  on  the  twenty-first  day  of 
June,  1893,  and  that  within  thirty  days 
thereafter,  to  wit,  on  the  nineteenth  day 
oi  July,  iSqj,  the  said  Guarantee  Invest- 
ment Company  complied  with  the  terms 
and  requirements  of  the  said  statute  by 
depositing  with  the  treasurer  of  the 
state  of  Missouri  securities  in  the  sum 
of  one  hundred  thousand  dollars,  which 
were  approved  and  accepted  by  the  said 
treasurer  as  good  and  sufficient,  and 
that  the  deposit  still  remains  with  said 
treasurer  intact  and  unimpaired."  To 
this  return  relator  interposed  a  gen- 
eral demurrer,  which  demurrer  was 
overruled,  the  court  having  found  from 
the  pleadings  that  the  corporation  was 
legally  organized,  and  that  there  had 
been  no  charge  of  misuser  of  its  fran- 
chises. 

Matoal  Protection  Association  —  Ohio. 
—  The  plea  of  the  defendant,  in  State 
V.  Mutual  Protection  Assoc,  26  Ohio 
St.  21,  to  an  information  in  the  na- 
ture of  a  quo  warranto,  seeking  the  dis- 
solution of  a  corporation  for  unlawfully 
assuming  and  usurping  certain  fran- 
chises and  privileges,  was  substantially 
to  the  effect  that  it  "  admits  that  it  is  a 
corporation  duly  formed  under  the  act 
of  April  20.  1872,  as  set  out  in  the  in- 
formation, and  avers  that  it  is  exer- 
cising and  assuming  to  exercise  the 
faculties,  liberties  and  franchises  con- 
ferred by  said  act  and  none  other. 

It  admits   that  it  has  established  an 


office  at  Norwalk,  Ohio;  employed  a 
president  and  secretary  to  conduct  the 
business  thereof;  a  medical  board  to  pass 
finally  upon  the  applications  of  persons 
desiring  to  become  members  of  said 
association;  medical -examiners  to  ex- 
amine applicants  for  membership  in 
said  association,  and  general  and  spe- 
cial agents  to  lay  before  the  public  and 
individuals  the  advantages  of  member- 
ship in  said  association,  and  to  receive 
applications  therefor,  and  such  other 
oflScers  and  agents  as  are  needed  there- 
for; and  avers  that  it  has  full  authority 
for  so  doing  under  the  statute  under 
which  it  was  incorporated.  It  dis- 
claims being,  or  assuming  to  be,  a  life 
insurance  company,  or  to  carry  on  the 
business  of  life  insurance,  as  charged 
in  the  information. 

On  the  contrary,  it  avers  that  it  is 
engaged  exclusively  in  the  business 
and  carrying  out  the  purpose  contem- 
plated and  authorized  by  the  statute 
under  which  it  is  formed.  That  it  is- 
sues certificates  of  membership  to  the 
several  persons  becoming  members  of 
the  association,  stating  therein  the  kind 
of  benefit  and  protection  the  member  is 
entitled  to  receive  by  virtue  of  his  mem- 
bership, and  the  obligation  and  prom- 
ise of  all  other  members  to  contribute 
ratably  thereto.  That  this  defendant 
simply  acts  as  the  agent  of  the  mem- 
bers of  the  association  to  receive  their 
contributions  and  appropriate  and  ap- 
ply them  to  the  objects  of  the  asso- 
ciation. That  said  contributions  are 
not  receivable  or  collectible  until  the 
conditions  arise  entitling  a  member  or 
his  legal  representatives  to  have  and 
receive  the  same;  and  that  this  defend- 
ant is  paid  therefor  a  small  sum  to 
defray  the  expenses  of  collecting  and 
disbursing  the  said  contributions  for 
protection,  relief  and  otherwise." 

Judgment  was  rendered  for  the  de- 
fendant on  the  theory  that  associations 
of  persons  incorporated  under  the  act 
of  April  20,  1872  (69  Ohio  L.  82),  "  for  the 
purpose  of  mutual  protection  and  relief 
of  its  members,  and  for  the  payment  of 
stipulated  sums  of  money  to  the  fami- 
lies or  heirs  of  deceased  members,"  are 
not  subject  to  the  laws  of  the  state  re- 
lating to  life  insurance  companies. 

Bailroad  Company  —  New  York. — In 
Peoples.  Ulster,  etc.,  R.  Co.,  58  Hun 
(N.  Y.)  266,  to  a  complaint  in  an  action 
to  annul  the  charter  of  defendant,  a 
corporation  reorganized  pursuant  to 
New  York  Laws  of  1874,  chapter  430, 
on    the    ground    that   defendant    had 


5  E.  of  F.  P.  — 46. 


721 


Volume  5. 


6450. 


CORPORATIONS. 


6450. 


failed  to  construct  and  operate  any 
portion  of  its  road,  between  Stamford 
and  Oneonta,  as  required  by  law,  de- 
fendants interposed  the  following  de- 
fenses: 

"  I.  A  general  denial  to  the  effect  that 
defendant  "ever  became  bound  or  lia- 
ble, or  had  lawful  right  or  authority, 
or  legal  or  pecuniary  ability,  to  con- 
struct any  part  of  said  projected  rail- 
road between  Stamford  and  Oneonta. 

2.  That  the  located  line  of  said  rail- 
road beyond  Stamford,  through  the 
town  of  Harpersfield,  runs  on  the  side 
of  a  mountain  through  a  sterile,  barren 
country,  almost  uninhabited,  and  there 
are  not  more  than  one  or  two  houses 
on  the  line,  and  no  roads  leading  there- 
to, etc.,  and  that  another  railroad  has 
been  projected  from  Stamford  to  Bloom- 
ville,  and  thence  to  a  point  at  or  near 
Oneonta  by  a  different  route,  and  two 
other  corporations  are  to  build  and 
operate  the  same,  and  which,  when 
completed,  can  be  operated  in  connec- 
tion with  that  of  defendant. 

3.  That  the  defendant  has  made  an- 
nual reports  of  its  property  and  earn- 
ings under  the  laws  of  the  state  upon 
the  railroad  as  operated  from  Rondout 
to  Stamford,  and  has  been  assessed 
thereon  as  well  as  upon  its  franchises 
and  business,  and  has  paid  the  taxes 
thus  assessed,  etc. 

4.  The  action  is  barred  by  the  statute 
of  limitation. 

5.  That  after  this  action  was  com- 
menced, the  legislature  passed  an  act 
amending  the  Reorganization  act  of 
1874,  by  adding  a  new  section  relieving 
a  corporation  thus  organized  from  fin- 
ishing a  railroad  not  then  completed, 
provided  the  board  of  railroad  commis- 
sioners shall  certify  that  the  public 
interests  do  not  require  it,  and  that 
such  certificate  has  since  been  made  in 
relation  to  the  completion  of  that  por- 
tion of  the  road  beyond  Stamford.^'  In 
this  case  the  judgment  of  the  lower 
court  dismissing  the  complaint,  with 
costs,  was  affirmed. 

In  Pennsylvania,  to  a  suggestion  in 
Com.  V.  Pittsburg,  etc.,  R.  Co.,  58  Pa. 
St.  27,  pleaded  to  the  information  sub- 
stantially as  follows: 

"  I.  That  they  claim  to  be  a  body 
politic,  etc.,  by  virtue  of  letters  patent 
issued ywM^  itth,  18.^6,  by  the  governor 
of  Pennsylvania,  in  pursuance  of  an 
Act  of  Assembly  of  April  3d,  1837,  and 
the  several  supplements  thereto,  viz.: 
The  first  approved  the  iSth  day  of 
April,  1843,  embraced  in  an  act  enti- 


tled, etc.;  which  said  last  act  was  in 
part  repealed  by  a  resolution  approved 
the  19th  day  of  April,  1843,  embraced 
in  a  resolution  entitled,  etc.;  and  which 
last  mentioned  resolution  was  repealed 
by  the  6th  section  of  an  act  approved 
the  3d  day  of  April,  1846,  entitled,  etc.; 
and  further,  by  an  additional  supple- 
ment embraced  in  an  act  approved  the 
loth  day  of  April,  1846,  entitled,  etc.; 
and  further  by  an  additional  supple- 
ment approved  the  17th  day  of  April, 
1846,  embraced  in  an  act  entitled,  etc.; 
and  by  this  warrant  the  said  defend- 
ants have  used,  and  still  use,  the  liber- 
ties, etc.,  of  a  body  corporate  and 
politic,  under  the  name  and  style  of 
The  Pittsburg  and  Connellsville  Railroad 
Company,  as  they  well  might  and  still 
may,  etc. 

2.  That  as  to  the  said  liberties,  etc., 
to  extend  the  said  Pittsburg  and  Con- 
nellsville railroad  beyond  Connellsville 
to  Smithfield,  or  any  other  point  on  the 
waters  of  the  Youghiogheny ,  and  within 
the  limits  of  this  Commonwealth,  they 
have  and  claim  to  have  and  use  the 
same  under  and  by  virtue  of  the  power 
and  discretion  conferred  upon  them  in 
and  by  the  yth  section  of  an  Act  of  As- 
sembly, approved  April  iSth,  1843,  en- 
titled, etc. 

3.  That  as  to  the  said  franchises, 
etc.,  to  extend  the  said  Pittsburg  and 
Connellsville  railroad  to  any  point  they 
may  select  in  Somerset  or  Bedford  coun- 
ties, so  as  to  form  a  connection  with 
the  Chamber sburg  and  Allegheny  rail- 
road, or  any  other  railroad  that  may  be 
constructed,  they  have,  and  claim  to 
have  and  use  the  same  under  and  by 
virtue  of  the  powers  conferred  on  them 
in  and  by  the  6th  section  of  an  Act  of 
Assembly,  approved  the  i8th  day  of 
April,  1853,  entitled,  etc."  Under  this 
plea  the  court  held  that  the  evidence  as 
shown  by  the  record  of  the  state  was 
sufficient  to  prevent  the  issuance  of  a 
quo  warranto. 

Street  Bailroad  Company  —  California. 
—  In  People  v.  Stanford,  77  Cal.  360,  a 
complaint  brought  by  the  people  of  the 
state  on  the  relation  of  the  attorney- 
general  against  certain  persons  for  the 
purpose  of  having  it  determined  that 
the  company  had  no  legal  existence  as 
a  corporation  to  answer  for  each  and 
all  of  the  defendants  generally  and 
severally  and  specifically,  denied  that 
"the  defendants,  or  any  of  them, 
claiming  to  be  the  said  Protrero  and 
Bayview  Railroad  Company,  have  for 
a  long  time,  or  do  now,  or  at  any  time 


Volume  5. 


6451. 


CORPORATIONS. 


6451. 


(3)  Setting  Up  Valid  Consolidation  Agreement. 

Form  No.  6451 .' 
(Precedent  in  Com.  v.  Atlantic,  etc.,  R.  Co.,  53  Pa.  St.  10.)* 


[  The  Commonwealth  of  Pennsylvania 
ex  rel.  the  Attorney-General 
against 
The  Atlantic  and  Great  Western  Rail- 
way Company. 


In  the  Supreme  Court  of  the 

Commonwealth  of  Pennsylvania^ 
y  Middle  District. 
^December  Term,  i855. 

No.  102. 

Information  for  Quo  Warranto. 


And  now,  to  wit,  on  the  nineteenth  day  o{  January,  1S66,  comes  the 
above    named    defendant,  The  Atlantic  and  Great  Western  Railway 


have  unlawfully  claimed,  or  unlawfully 
exercised  the  franchises,  powers  or 
privileges  in  said  city  and  county  in 
this  behalf  in  said  complaint  alleged, 
or  any  franchise,  power  or  privilege." 
It  was  held  on  appeal  in  this  case,  that 
a  demurrer  to  this  answer  was  improp- 
erly sustained  in  the  lower  court,  for 
the  reason  that  a  denial  on  the  part  of 
the  individual  defendants,  that  they 
are  exercising  the  alleged  corporate 
franchise,  was  a  complete  defense. 

Beligiooa  Cori>oration  —  Massachusetts. 
—  For  an  answer  by  a  minority  of 
members  to  a  petition  for  dissolution, 
as  well  as  an  answer  of  trustees  of  a 
fund  devoted  to  assisting  a  religious 
corporation,  interposed  to  a  petition  for 
a  dissolution  of  such  corporation,  see 
the  answers  substantially  set  out  in 
Matter  of  New  South  Meeting-House, 
13  Allen  (Mass.)  497.  Compare  Warner 
V.  Bowdoin  Square  Baptist  Soc,  148 
Mass.  400. 

1.  Seplicstion  to  this  plea  on  the  part 
of  the  attorney-general  was  to  the  effect 
that  "  there  is  no  record  of  the  said  sup- 
posed contract  agreement  and  act  of 
consolidation  and  merger  in  the  first 
plea  mentioned,  remaining  among  the 
records  of  the  commonwealth,  in  the 
office  of  the  secretary  of  the  common- 
wealth, at  Harrisburg,'  etc.  To  which 
replication  a  demurrer  was  properly 
overruled,  with  leave  to  the  defendants 
to  rejoin  that  such  a  record  deed  ex- 
isted with  a prout  patet  recordum.  Com. 
V.  Atlantic,  etc.,  R.  Co.,  53  Pa.  St.  10. 

2.  Another  Precedent  —  Illinois.  —  In 
Ohio,  etc.,  R.  Co.  v.  People,  123  111.  467, 
the  answer  of  the  railroad  company  to 
the  information  in  the  nature  of  a  quo 
warranto,  substantially  alleged  as  fol- 
lows: 

It  denies  that  it  was  guilty  of  the 
several  wrongs  charged  against  it;   it 


admits  "  that  it  was  incorporated  under 
the  laws  of  Illinois,  and  that  such  incor- 
poration was  made  by  virtue  and  in 
pursuance  of  an  act  of  the  legislature 
of  Illinois,  entitled  '  An  Act  to  incor- 
porate the  Ohio  and  Mississippi  Rail- 
way Company,  and  for  other  purposes,' 
approved  February  5,  1861;  that  in  the 
first  section  thereof  thirteen  persons 
were  named  incorporators  of  the  com- 
pany, and  that  a  majority  of  the  per- 
sons so  named  were  nonresidents  of  the 
state  of  Illinois,  and  were  citizens  and 
residents  of  other  states;  that  by  virtue 
of  the  same  section  of  that  act  respond- 
ent was  invested  with  all  the  corporate 
franchises  and  rights  which  had  there- 
tofore been  granted  to  and  vested  in 
the  corporation  known  as  the  Ohio  and 
Mississippi  Railroad  Company,  incor- 
porated by  an  act  of  the  General  As- 
sembly of  the  State  of  Illinois,  entitled 
'An  act  to  incorporate  the  Ohio  and 
Mississippi  Railroad  Company,  and  for 
other  purposes,'  approved  February 
12,  1851;  that  it  refers  to  both  these  acts 
and  makes  them  parts  of  its  answer, 
and  insists  that  by  virtue  of  these 
special  acts,  in  pursuance  of  which  it 
was  incorporated,  it  became  vested 
with  the  right  to  elect  a  majority  of  its 
directors,  or  all  of  them,  from  stock- 
holders residing  outside  of  the  State  of 
Illinois,  and  not  citizens  oi Illinois;  that 
in  1867,  and  before  the  adoption  of  the 
present  constitution  of  this  state,  by 
virtue  of  the  laws  of  the  State  of  Illinois, 
and  of  similar  laws  in  the  States  of 
Indiana  and  Ohio,  respondent  became 
consolidated  with  the  Ohio  and  Missis- 
sippi Railway  Company ,  and  owning  and 
operating  a  railroad  leading  from  the 
Mississippi  river  at  East  St.  Louis,  Illi- 
nois, to  Cincinnati,  Ohio,  all  under  one 
management  and  one  board  of  directors, 
by  which  consolidation  the  property. 


723 


Volume  5. 


6451. 


CORPORA  TIONS. 


6451. 


Company,  by  Harvey  W.  Miller,  their  attorney,  and  protesting  that 
the  information  and  suggestion  filed  in  this  case  is  altogether  insuffi- 
cient in  law;  and  that  the  said  The  Atlantic  and  Great  Western  Rail- 
way Company  need  not,  by  the  law  of  the  land,  make  answer  thereto; 
nevertheless,  for  a  plea  in  this  behalf  the  said  The  Atlantic  and  Great 
Western  Railway  Company  say  that  the  said  commonwealth  of  Pennsyl- 
vania ought  not  to  implead  them,  the  said  The  Atlantic  and  Great 
Western  Railway  Company,  by  reason  of  the  several  matters  and  things 
in  the  said  suggestion  set  forth,  because  they,  the  said  The  Atlantic 
and  Great  Western  Railway  Company,  say:]^ 

I.  That  the  Atlantic  and  Great  Western  Railway  Company  claim  to  be 
a  body  politic  and  corporate  by  virtue  of  a  contract,  agreement^  and 
act  of  consolidation  and  merger  made  August  19th,  iS65,  between  the 
Atlantic  and  Great  Western  Railway  Company  in  New  York;  the  Buffalo 
extension  of  the  Atlantic  and  Great  Western  Railway  Company  —  cor- 
porations created  and  operated  under  the  laws  oi  New  York;  the 
Atlantic  and  Great  Western  Railroad  Company  of  Pennsylvania,  a  cor- 
poration created  under  the  laws  of  Pennsylvania;  and  the  Atlantic  and 
Great  Western  Railroad  Company,  a  corporation  created  and  operated 
under  the  laws  of  Ohio:  New  York,  Pennsylvania  and  Ohio  being  ad- 


stock  and  franchises  of  the  old  constitu- 
ent corporations  named  became  com- 
pletely merged  in  respondent,  its  line 
of  railroad  being  connected  and  con- 
tinuous, and  which  consolidation  was, 
in  all  respects,  in  conformity  with  the 
laws  of  the  States  of  Illinois,  Indiana 
and  Ohio;  that  its  principal  business  as 
a  carrier  is  between  St.  Louis,  Missouri, 
and  Cincinnati,  Ohio;  that  its  capital 
stock  is  held  and  owned,  excepting  a 
few  shares,  by  persons  outside  of  Illi- 
nois, being  largely  held  in  foreign  coun- 
tries and  in  New  York;  that  now.  and 
for  some  time  last  past,  but  one  of  its 
stockholders  is  or  has  been  a  citizen 
and  resident  of  the  city  of  Springfield, 
Illinois,  and  that  all  its  other  directors 
are  citizens  and  residents  of  other 
states  {Here  follow  their  names  and 
respective  places  of  residence);  that  the 
officers  of  the  respondent  have  always 
been  of  the  opinion,  and  have  been  so 
advised,  that  under  its  charter  and  con- 
solidation, by  authority  of  the  laws  of 
this  State,  with  said  railroad  corpora- 
tions in  the  Slates  of  Indiana  and  Ohio, 
the  law  of  the  State  of  Illinois  requir- 
ing a  majority  of  the  directors  to  be 
citizens  and  residents  of  the  said  State 
of  Illinois  did  not  apply  to  respondent; 
that  it  has  been  supported  in  this 
opinion  and  belief  by  the  fact  that  a 
majority  of  its  directors  have  never  re- 
sided in  or  been  citizens  of  this  State, 
which  fact  has  been  well  known  to  the 
citizens  and  officers  of  this  State,  and  to 


the  relator  in  this  proceeding,  and  still, 
until  the  filing  of  this  proceeding,  no 
objection  has  ever  been  made  by  either 
citizen,  officer  or  relator,  and  no  inquiry 
has  been  sustained  thereby  by  any  one; 
that  respondent  has  always  acted  in 
this  matter  in  good  faith,  and  with  a 
desire  to  comply  with  the  laws  of  the 
State,  as  they  were  understood  by  its 
officers,  and  as  they  seemed  to  be  under- 
stood by  the  officers  of  the  State."  A 
demurrer  to  this  answer  of  this  informa- 
tion was  sustained  in  the  lower  court, 
which  ruling  upon  appeal  by  respond- 
ent was  reversed,  the  appellate  court 
being  of  the  opinion  that  the  corpora- 
tion did  not  fall  within  the  constitu- 
tional provision  mentioned. 

1.  The  words  in  [  ]  are  not  found  in 
the  reported  case,  but  have  been  added 
to  make  the  form  complete. 

2.  The  agreement  of  consolidation  re- 
ferred to  in  the  plea  commenced  with 
this  preamble:  "Whereas,  the  line  of 
railroad  made  and  in  process  of  con- 
struction by  the  aforesaid  corporation 
and  companies  respectively  so  unite  as 
to  form  a  continuous  line  for  the 
passage  of  cars  from  the  city  of  Buffalo 
and  Salamanca  in  said  state  of  New 
York  to  the  city  of  Dayton  in  the  said 
state  of  Ohio,  crossing  the  boundary 
lines  of  said  several  adjoining  states  of 
New  York,  Pennsylvania  and  Ohio  at 
one  and  the  same  point;"  the  other 
material  parts  of  the  agreement  being 
as  set  out  in  the  plea  above. 

24  Volume  5. 


6452.  CORPORATIONS.  6452. 

joining  states,  the  laws  whereof  respectively  authorize  such  consoli- 
dation, and  the  railroads  of  said  companies  forming  a  continuous  line 
of  railroad  with  each  other  and  crossing  the  boundary  line  of  Nevj  York, 
Pennsylvania  and  Ohio  at  the  same  point;  the  contract  having  been 
first  duly  submitted  to  and  adopted  by  a  vote  of  more  than  two-thirds 
of  all  the  stockholders  of  each  of  said  corporations;  and  that  fact 
certified  by  the  secretary  of  each  of  the  same  companies  under  the 
seals  thereof,  was  on  the  3d  ^z.y  of  October,  a.  d.  i865,  filed  with  the 
secretary  of  state  of  New  York  and  Ohio  respectively,  and  with 
the  secretary  of  the  Commonwealth  of  Pennsylvania,  as  provided  by 
law;  which  said  contract,  etc.,  with  said  certificates,  the  defendants 
now  here  in  court  produce. ^ 

2.  That  the  railroad  of  the  Atlantic  and  Great  Western  Railway 
Company  being  connected  with  the  railroad  of  the  Catawissa  Rail- 
road Company  by  the  intervening  railroad  of  the  Philadelphia  and  Erie 
Railroad  Company,  they  claim  to  lease,  etc.,  the  said  Catawissa  railroad, 
and  to  have,  etc.,  the  corporate  powers,  etc.,  granted  to  the  Catawissa 
Railroad  Company  under  and  by  virtue  of  a  contract  and  agreement 
made  and  entered  into  httwttn  Xht  Atlantic  and  Great  Western  Rail- 
way Company,  the  Western  Central  Railroad  Company  and  the  Catawissa 
Railroad  Company,  dated  the  1st  day  of  November,  a.  d.  i8P5,  which 
contract  the  said  defendants  now  here  in  court  produce,  etc. 

[Wherefore,  the  said  defendant,  the  said  The  Atlantic  and  Great 
Western  Railway  Company,  pray  judgment,  and  that  the  franchises, 
liberties  and  privileges  enjoyed  by  them,  the  said  The  Atlantic  and 
Great  Western  Railway  Company,  claimed  as  aforesaid,  may  be  ad- 
judged and  allowed  to  them,  and  that  they  may  be  dismissed  hence 
and  discharged  by  the  court  from  the  premises  so  as  aforesaid  alleged 
against  them. 

Henry  W.  Miller,  Attorney  for 
The  Atlantic  and  Great  Western  Railway  Company .^^ 

f.  Demuprep.' 

(1)  To  Bill  in  Equity, 

{a)  Charging  Unlawful  Preferences. 

DEMURRER    TO    BILL — CHARGING    UNLAWFUL   PREFERENCES. 
Form  No.  6452.* 

1.  The  instrument  called  a  certificate  of  3.  For  the  formal  parts  of  demurrers, 
oonsolidation  of  the  Atlantic  and  Great  generally,  see  the  title  Demurrers. 
Western  Railway  Company  was  held  to  4.  This  demurrer  is  based  on  the 
be  a  lawful  and  valid  instrument  for  facts  in  Pyles  v.  Riverside  Furniture 
the  purposes  therein  expressed,  and  Co.,  30  W.  Va.  132.  The  bill  in  equity 
upon  being  filed  in  the  office  of  the  sec-  to  which  this  demurrer  was  sustained 
retary  of  the  commonwealth,  consti-  is  set  out  in  full  in  the  reported  case, 
tuted  the  defendants  a  legal  corporation  The  order  sustaining  the  demurrer  set 
in  the  state  of  Pennsylvania.  out  in  the  text  was    as  follows,  omit- 

2.  The  words  in  [  J  are  not  found  in  ting  the  formal  parts:  "The  demurrer 
the  reported  case,  but  have  been  added  heretofore  interposed  to  complainant's 
to  make  the  form  complete.  bill,  having  been  duly  considered,  it  is 

725  Volume  5. 


6453.  CORPORATIONS.  6453. 

State  of  West  Virginia,  ) 
County  of  Ohio.  \ 

In  the  Circuit  Court. 
Jacob  B.  Pyles,  plaintiff, 
against 
Riverside  Furniture    Company., 
The  Commercial    Bank,    and 
S.    B.    Hildreth   and  James 
Wheeler,  Trustees,  and  others, 
defendants. 

The  defendants,  The  Commercial  Bank  and  S.  B.  Hildreth  and 
James  Wheeler,  trustees,  come  by  their  attorneys  and  demur  to  the 
bill  of  plaintiff  herein,  as  being  insufficient  in  law  in  this,*  that  the 
Riverside  Furniture  Company,  defendant  herein,  though  insolvent,  had 
a  legal  right  to  make  an  assignment  with  preferences,  and  there  is 
nothing  in  the  statutes  of  this  state  prohibiting  an  insolvent  corpo- 
ration, organized  under  the  laws  of  this  state,  from  making  an  assign- 
ment for  the  benefit  of  its  creditors,  and  giving  preference  thereby 
to  particular  creditors. 

Watson  (St*  Wilson, 

Attorneys  for   The  Commercial  Bank, 
and 
S.  B.  Hildreth  and  James  Wheeler, 

Defendants. 

(3  )  Seeking  to  Forfeit  Franchise  of  Plank  Road  Company. 

Form  No.  6453. 

(Precedent  in  Tripp  v.  Pontiac,  etc.,  Plank  Road  Co.,  66  Mich.  6.)* 
[State  of  Michigan : 
The  Circuit  Court  for  the  County  of  Oakland.     In  Chancery. 
Arthur  R.  Tripp,  Prosecuting  Attorney,  complainant, 

V. 

The  Pontiac  6^  Lapeer  Plank  Road  Company,  defendant. 

The  demurrer  of  the  Pontiac  ^  Lapeer  Plank  Road  Company, 
defendant,  to  the  bill  of  complaint  of  Arthur  R.  Tripp,  Prosecuting 
Attorney,  complainant  :]2 

This  defendant  demurs  to  the  said  bill,  and  for  cause  of  demurrer 
shows  that  the  complainant  has  not  in  and  by  his  said  bill  made  or 
stated  such  a  case  as  entitles  him,  in  a  court  of  equity,  to  any  dis- 
covery or  relief  from  or  against  this  defendant  touching  the  matters 
contained  in  the  said  bill,  or  any  of  such  matters. 

And,  for  a  further  cause  of  demurrer,  this  defendant  shows  that 

adjudged,    ordered    and  decreed   that        1.  This  demurrer  was  overruled  in  the 

such  demurrer  be  sustained;  and  the  lower  court,  but  on  appeal  this  ruling 

complainant,  not  desiring  to  amend  his  was  reversed  and  the  appeal  dismissed, 

bill,  it  is  further  adjudged,  ordered  and  Tripp   v.    Pontiac,    etc..     Plank    Road 

decreed   that   the  same   be  dismissed,  Co. ,66  Mich.  i. 

and   that  the   Commercial  Bank,  S.  P.         2.  The  words  in  [  ]  are  not  found  in 

Hildreth  diV^A  James  Wheeler,  the  demur-  the  reported  case,  but  have  been  added 

ring  defendants,  recover  of  the   com-  to  make  the  form  complete, 
plainant  their  costs  herein  expended." 

726  Volume  5. 


6454.  CORPORATIONS.  6454. 

the  said  circuit  court  in  chancery  is  not  the  proper  tribunal  to  hear, 
try,  and  determine  the  matters  stated  and  charged  in  the  com- 
plainant's bill,  viz.,  that  said  defendant  had  not  constructed  its  said 
road  according  to  the  charter,  and  statutes  forming  a  part  thereof, 
under  which  said  road  was  constructed,  as  is  alleged  in  said  bill;  but 
that  the  Supreme  Court  of  the  State  of  Michigan  has  jurisdiction,  and 
is  the  proper  tribunal,  by  information  in  the  nature  of  a  quo  warranto, 
to  hear,  try,  and  determine  the  said  matters. 

And,  for  a  further  cause  of  demurrer,  this  defendant  shows  that 
said  circuit  court  in  chancery  is  not  the  proper  tribunal  to  hear,  try, 
and  determine  the  matters  stated  in  said  bill  as  to  whether  or  not 
the  defendant  had,  after  having  constructed  its  road,  suffered  the  same 
to  get  out  of  repair  so  as  to  be  inconvenient  and  dangerous  for  the 
passage  over  it  of  teams  and  vehicles,  or  as  to  whether  the  defendant, 
for  the  space  of  one  year  or  more  last  past,  had  ceased  entirely  to 
keep  up  its  road,  or  any  part  thereof,  and  more  than  one  year  ago 
removed  all  of  its  gates  from  its  said  road,  and  abandoned  the  same 
without  the  consent  of  the  Legislature  of  the  State  of  Michigan^  and 
has  ever  since  that  time  continued  to  keep  said  gates  so  removed, 
and  to  abandon  its  said  road  without  the  consent  of  the  said  Legisla- 
ture; but  that,  by  the  charter  and  statutes  forming  a  part  thereof 
named  in  said  bill,  fines  and  penalties  are  amply  provided  to  protect 
the  public  of  all  their  rights  pertaining  to  the  dangerous  condition  of 
said  road  or  otherwise,  and  that  such  fines  and  penalties  are  to  be 
recovered,  and  the  right  to  take  toll  in  certain  cases  forfeited,  by  such 
corporations  in  actions  at  law,  and  not  by  proceedings  in  chancery. 

Wherefore,  and  for  divers  other  good  causes  of  demurrer  appearing 
in  the  said  bill  of  complaint,  this  defendant  demurs  to  the  said  bill, 
and  to  all  the  matters  therein  contained,  and  prays  the  judgment  of 
this  honorable  court  whether  it  shall  be  compelled  to  make  any 
further  or  other  answer  to  the  said  bill;  and  it  prays  to  be  dismissed, 
with  its  reasonable  costs  in  this  behalf  sustained. 

[By  Jeremiah  Mason, 

Solicitor  for  Defendant.  ]i 

(2)  To  Petition. 

DEMURRER   TO    PETITION    FOR   INJUNCTION    AND    WINDING    UP. 

Form  No.  6454. 

(Precedent  in  State  v.  Iowa  Mut.  Aid  Assoc,  59  Iowa  129.)* 
[In  the  District  Court  in  and  for  Wapello  County,  Iowa. 
State  of  Iowa,  ex  rel.  W.  V.  Lucas,  Auditor  "1 

0/  the  State  of  Iowa,  plaintiff,  I    Blank  Term,  1S8I. 

against  |    Demurrer. 

Iowa  Mutual  Aid  Association,    defendant.  J 

1,  The  words  in  [  ]  do  not  appear  in  whep  the  action  was  commenced,  it  not 
the  reported  case,  but  have  been  added  having  been  organized  until  April,  1881, 
to  complete  the  form.  and  could  not  therefore  have  been  re- 

2.  This  demorrer  was  properly  sos-  quired  to  make  an  annual  statement 
tained,  it  appearing  that  the  defendant  until  January,  1882,  whereas  the  action 
could  not  have  been  in  default  as  alleged  against  it  was  begun  in  August,  1881. 


727  Volume 


6455.  CORPORATIONS.  6456. 

The  defendant  demurs  to  the  petition  herein,  and  shows  to  the 
court  the  following  grounds  therefor:]^ 

1.  Because  the  allegations  of  the  petition  show  that  defendant  was 
duly  and  legally  incorporated  under  and  by  virtue  of  the  provisions 
of  the  Code  of  i87<?,  particularly  under  section  1091^  and  other  sec- 
tions in  regard  to  corporations  other  than  for  pecuniary  profit. 

2.  Because  the  allegations  of  the  petition  show  that  defendant  is  a 
mutual  aid  association.,  duly  organized  under  the  laws  of  Iowa.,  and 
that  the  so-called  contracts  of  insurance  in  the  plaintiff's  petition 
mentioned,  are  the  mutual  obligations  of  the  members  of  the  asso- 
ciation for  the  mutual  benefit  of  such  member  [s]. 

3.  Because  the  allegations  of  the  petition  show  that  defendant  is 
not  such  an  insurance  company  as  is  contemplated  by  sections  1161., 
1162  and  1163  of  the  Code  of  i875,  and  that  the  provisions  of  chapter 
5,  title  9  of  the  Code  of  i2>73  do  not  apply  to  the  defendant. 

\Jeremiah  Mason,  Defendant's  Attorney.]^ 

(3)  To  Plea. 

DEMURRER  TO  PLEA  THAT  CORPORATION  HAD  CEASED  TO  ACT. 

Form  No.  6455.* 

{Commencing  as  in  Form  No.  61^52,  and  continuing  to  *)  that  it  does 
not  show  that  defendant  had  wound  up  its  business  as  a  corporation, 
and  had  ceased  to  exist  in  fact  at  the  time  the  alleged  cause  of  action 
arose.     {Concluding  as  in  Form  No.  6j^52). 

g.  Replication.* 

1.  The  words  in  [  ]  are  not  found  in  Plytnouth  Plank  Road  Company,  after 
the  reported  case,  but  have  been  added  their  incorporation,  and  after  the  erec- 
to  make  the  form  complete.  tion  of  toll-gates  upon  their  plank  road, 

2.  This  demtirrer  is  based  on  facts  in  and  the  exaction  of  toll  thereat,  did 
Miller  z/.  Newberg  Orrel  Coal  Co.,  31  willfully  or  negligently  so  manage  their 
W.  Va.  837,  and  was  filed  to  a  plea  that  affairs  that  afterwards,  to  wit,  on  the 
the  charter  of  the  corporation  had  ex-  first  day  ol  January,  1869,  and  from 
pired,  and  that  it  had  ceased  to  exist  in  thence  continually  hitherto  to  this 
law  at  the  time  the  alleged  cause  of  ac-  time,  the  said  Plymouth  plank  road  be- 
tion  arose,  and  should  have  been  sus-  came  and  was  broken,  worn  out,  de- 
tained for  the  reason  that  the  plea  was  stroyed,  its  plank  discarded,  rotten  and 
bad  in  not  also  averring  that  the  corpo-  warped,  and  its  road-bed  full  of  holes, 
ration  had  wound  up  its  business  and  gullies,  ruts  and  excavations  through- 
ceased  to  exist  in  fact  as  well  as  in  law.  out,  over  and   upon  its  entire   length 

3.  The  replication  to  a  plea  to  an  infer-  of  about  16  miles,  and  through  the 
mation  in  the  nature  of  a  quo  warranto  townships  of  Greenfield,  Redford,  Livo- 
in  People  v.  Plymouth  Plank  Road  nia  and  Plymouth,  from  its  commence- 
Co.,  31  Mich.  178,  was  as  follows:  ment     at     its     intersection    with     the 

"I.  And  the  %^\A  Isaac  Marston,  at-  Grand  River  ^X&nV  road,  in  said  town- 
torney-general,  having  heard  the  said  ship  of  Greenfield,  and  extending 
plea  of  the  said  The  Plymouth  Plank  through  said  townships  of  i?^'<//i'ra' and 
Road  Company,  for  the  said  people  of  the  Livonia,  to  its  termination  in  said  town- 
state  olMichigan,  saith:  That  the'  said  s'ciX'p  oi Plymouth;  and  the  bridge  of  said 
people  ought  not  to  be  barred  from  road,  over  the  river  A'c'm,^^,  in  said  town- 
having  their  aforesaid  information  ship  of  ^^fly<7ra',  has  been  and  remained 
against  the  said  Plymouth  Plank  Road  during  the  winter  in  iS/j  and  187^?,  en- 
Company,  because  he  says  that  the  said  tirely  broken  down  and  destroyed,  for 

728  Volume  5. 


6456. 


CORPORA  TIONS. 


6456. 


REPLY  TO   PLEA  TO   INFORMATION   IN  THE   NATURE  OF  QUO   WARRANTO. 


Form  No.  6456.' 

{Title  of  court  and^ 

cause  as  in  Form  \  Reply. 

No.  6433.)  J 

Plaintiff  for  reply  to  defendant's  answer  admits  the  corporate 
existence  of  the  defendant  and  its  corporate  powers  to  sue  and  be 
sued,  etc.,  to  construct  and  maintain  a  canal,  etc.,  and  to  exercise 
the  power  of  eminent  domain  as  granted  by  the  act  of  general 
assembly  of  the  state  of  0/iio  passed  January  10,  1827,  and  the  act 
supplementary  thereto,  and  as  pleaded  in  the  defendant's  plea;  but 
denies  the  right  and  power  of  the  defendant  to  sell,  lease  or  abandon 
any  portion  or  portions  of  its  canal  under  and  by  virtue  of  said  statute 


a  period  of  one  month,  so  that  the  said 
plank  road  was,  during  all  the  time 
aforesaid,  to  wit,  since  January  i ,  1869, 
and  still  continues,  utterly  unsafe  and 
dangerous  to  persons,  horses  and 
vehicles  to  pass  over  and  upon;  that 
these  defects  are  not  confined  to  any 
particular  portion  of  said  road,  but  ex- 
tend its  entire  length;  and  there  has 
not  been  during  yfz/^  years  last  past  any 
two  consecutive  miles  in  the  whole  road 
which  has  not  been  and  continued  in 
the  unsafe  and  dangerous  condition 
above  specified. 

And  so  the  attorney-general  says  that 
the  board  of  directors  of  the  said  com- 
pany have  not  at  all  times,  nor  at  any 
time  since  the  said  frst  day  of  January, 
iS6g,  although  toll-gates  had  been 
erected  and  toll  exacted  thereat  upon 
the  said  plank  road  long  before  that 
time,  kept  the  said  plank  road  in  good 
repair  or  in  a  safe  condition  to  travel 
upon;  nor  has  the  said  company  so 
kept  the  same  in  good  repair  or  in  a 
safe  condition  to  travel  upon;  and  this 
he  is  ready  to  verify. 

Wherefore  he  prays  judgment,  and 
that  the  said  Plymouth  Plank  Road  Com- 
pany may  be  ousted  and  altogether 
excluded  from  its  corporate  rights, 
privileges  and  franchises. 

II.  And  the  said  attorney-general 
further  saith  that  the  said  people  ought 
not  to  be  barred  from  having  their 
aforesaid  information  against  the  afore- 
said Plymouth  Plank  Road  Company,  be- 
cause, he  says  that  the  said  Plank  Road 
Company,  after  their  incorporation, 
mentioned  in  their  said  plea,  did  not 
and  has  not  so  constructed  its  road  '  as 
to  have  at  least  sixteen  feet  width  of 
good  smooth  and  permanent  road,  and 
so  constructed  as   to  permit  carriages 


and  other  vehicles  to  meet  and  pass 
thereon,'  for  any  two  consecutive  miles 
of  said  road,  but  on  the  contrary  thereof 
the  said  plank  road  was  constructed  of 
a  much  less  width  than  sixteen  feet,  and 
has  so  remained  from  the  time  of  such 
construction  until  the  present  time,  so 
that  upon  its  entire  length  carriages  or 
other  vehicles  cannot  conveniently  or 
easily  pass  each  other;  and  the  said 
road  has  so  continued  until  this  time, 
and  this  he  is  ready  to  verify.  Where- 
fore he  prays  judgment,  that  the  said 
Plymouth  Plank  Road  Company  may  be 
ousted  and  altogether  excluded  from 
its  corporate  rights,  privileges  and 
franchises." 

A  demurrer  to  this  complaint  was 
properly  overruled,  although  it  was  ad- 
mitted that  the  pleader  had  not  been  as 
careful  as  he  might  perhaps  have  been 
in  drawing  the  replication. 

See  also  People  v.  Pontiac  Bank,  12 
Mich.  528,  for  another  replication  to  a 
plea  filed  to  an  information  in  the  nature 
of  a  quo  warranto. 

1.  This  reply  is  based  on  the  facts  of 
State  V.  Pennsylvania,  etc..  Canal  Co., 
23  Ohio  St.  125.  The  defendant  had 
pleaded  an  act  of  the  legislature  grant- 
ing to  it  the  franchises  named  in  the 
information,  and  the  court  held  that  it 
was  proper  for  the  relator,  in  his  replica- 
tion, to  aver  the  cause  of  forfeiture,  and 
to  priy  for  a  judgment  of  dissolution 
as  is  set  forth  in  the  form. 

Rejoinder  to  replication  to  plea  to  in- 
formation for  quo  warranto  against  a 
railroad  corporation  is  set  out  in  Com. 
V.  Pittsburg,  etc.,  R.  Co.,  58  Pa.  St.  32. 
Upon  the  final  determination  of  the 
case  judgment  was  rendered  for  the 
defendants. 


729 


Volume  5. 


6457. 


CORPORATIONS. 


6457. 


of  March  20,  iS67,  and  avers  that  said  act  was  in  conflict  with  the 
provisions  of  the  constitution  of  the  state,  and  therefore  void. 

And  the  relator  also  avers  that  the  defendant  had  failed  to  keep 
its  canal  in  repair  for  a  period  of  more  than  twelve  months  at  one 
time,  both  before  and  after  the  passage  of  the  act  of  March  20,  iS67, 
in  violation  of  the  provisions  and  conditions  of  said  act  of  January 
10,  xS27,  and  the  act  supplementary  thereto,  and  that,  by  reason 
thereof,  the  defendant  had  ceased  to  be  a  corporation  and  had 
forfeited  its  charter. 

And  the  relator  further  avers  that  the  defendant  has  abandoned 
certain  portions  of  its  canal  and  leased  other  portions  without  legal 
authority  to  do  so,  and  in  violation  of  its  charter,  and  thereby  its 
charter  had  become  forfeited  to  the  State  of  Ohio. 

Wherefore,  P.  B.  Pond,  as  attorney-general  aforesaid,  asks  judg- 
ment that  the  charter  of  the  corporation  be  forfeited  and  the  cor- 
poration be  dissolved,  etc. 

F.  B.  Pond,  Attorney-General,  attorney  for  the  plaintiff. 


h.  Judgment  or  Decree.' 


1.  Judgment  dissolving  consolidated  cor- 
poration, as  set  out  in  Ketcham  v. 
Madison,  etc.,  R.  Co.,  20  Ind.  260, 
omitting  formal  parts,  was  as  follows: 

"  I.  That  the  said  supposed  contract, 
entered  into  between  the  Board  of 
Directors  of  the  Peru  and  Indianapolis 
Railroad  Company  and  the  Board  of 
Directors  of  the  Madison  and  Indian- 
apolis Railroad  Company,  as  set  forth  in 
the  complaint  herein,  was  and  is  void 
and  of  no  effect. 

2.  That  said  supposed  contract  be 
and  is  by  the  court  set  aside  and 
annulled  to  all  intents  and  purposes. 

3.  That  the  said  organization  of  the 
two  companies  called  the  Madison, 
Indianapolis  and  Peru  Railroad  Com- 
pany was  and  is  null  and  void,  and  is 
by  the  court  here  dissolved.* 

4.  That  the  said  Peru  and  Indianapolis 
Railroad  Company  and  the  Madison  and 
Indianapolis  Railroad  Company  be  and 
they  are  each  declared  valid  and  exist- 
ing independent  corporations,  notwith- 
standing said  contract  of  consolidation. 

5.  It  is  further  ordered,  adjudged 
and  decreed,  that  any  outstanding 
obligations  or  liabilities  of  the  con- 
solidated organization  which  have  been 
fairly  and  honestly  incurred  for  the 
joint  benefit  of  the  two  companies, 
parties  to  this  suit,  or  for  the  sole 
benefit  of  either,  shall  be  settled  and 
paid  by  the  said  companies,  respect- 
ively, in  proportion  to  the  real  interest 
that  each  has,  or  may  have,  in  such 
outstanding  obligations  or  liabilities." 


A  judgment  denying  an  injunction  in  a 

proceeding  of  this  nature  is  set  out  in 
Steinberger  v.  Independent  Loan,  etc., 
Asso.,  84  Md.  625,  which,  omitting 
formal  parts,  is  as  follows: 

"  That  the  plaintiffs  are  not  entitled 
to  the  relief  of  a  writ  of  injunction 
restraining  and  prohibiting  the  defend- 
ant, its  officers  and  agents  from  further 
conducting  its  affairs  and  the  appoint- 
ment of  a  receiver  to  take  charge  of  its 
affairs  and  a  decree  dissolving  the  de- 
fendant corporation,  as  prayed  in  the 
bill  of  complaint.  It  appearing,  how- 
ever, in  the  proceedings  in  Article  XII 
of  the  by-laws  of  the  defendant  body 
corporate  filed  in  the  cause,  that  the 
plaintiffs,  as  free  shareholders  of  said 
body  corporate,  have  the  right  to  with- 
draw therefrom;  it  is  further  adjudged, 
ordered  and  decreed,  that  the  defendant 
pay  to  each  of  the  plaintiffs  his  or  her 
proportionate  share  of  the  assets  of  said 
body  corporate,  and  that  this  cause  be 
referred  to  an  auditor  of  this  court, 
with  directions  to  state  an  account  from 
the  pleading  and  proof  now  in  the  cause, 
and  such  other  proofs  (if  any)  as  the 
parties  may  produce  before  him,  on 
giving  the  usual  notice,  showing  the 
proportionate  share  of  each  of  the  plain- 
tiffs in  and  to  the  assets  of  the  defend- 
ant body  corporate." 

Decree  dismissing  information  for  writ 
of  quo  warranto  in  Murphy  v.  Farmers' 
Bank,  20  Pa.  St.  420,  is  as  follows: 

"And  now  on  April  4^  iSjli".  this  case 
having  been  fully  heard,  it  is  considered 


730 


Volume  5. 


6457.  CORPORATIONS.  6457. 

.  Form  No.  6457. 

(Precedent  in  Frank  v.  Morrison,  58  Md.  425.)' 
Citizens  National^Bank  of  Baltimore  |  j^  ^^^  ^.^^^.^  ^^^^  ^^  ^^^.^ 

Chesapeake  Mutual  Loan  and  Building  f  ^         ,      Terin     87Z 
Association  of  Baltimore  City,  et  al.    \  '        "*' 

By  and  with  the  consent  of  all  parties  it  is,  X.h\s  first  day  of  Decem- 
ber, 1 87-^,  adjudged,  ordered  and  decreed,  that  Robert  D.  Morrison, 
George  J.  Appold,  Samuel  Snowden  and  Joseph  Friedenwald  be,  and 
they  are  hereby  appointed  receivers,  with  the  power  and  authority 
to  wind  up  the  affairs  of  the  said  Franklin  Land  and  Loan  Company, 
of  Baltimore  City,  in  order  to  make  an  equitable  distribution  of  the 
assets  of  said  company  amongst  its  creditors  and  shareholders. 

And  it  is  further  ordered,  that  the  said  receivers  give  notice  to  all 
persons  having  claims  against  the  said  Franklin  Land  and  Loan  Com- 
pany, of  Baltimore  City,  to  file  their  claims,  properly  authenticated, 
with  the  Clerk  of  this  Court  on  or  before  the  sixth  day  of  February, 
i875,  in  two  daily  newspapers  in  the  City  of  Baltimore,  once  a  week, 
for  three  successive  weeks,  before  the  second  day  of  January  next. 

And  it  is  further  ordered,  that  Robert  D.  Morrison,  Esquire,  and 
George  J.  Appold,  Esquire,  the  temporary  receivers,  shall  yield  up 
and  deliver  to  the  said  receivers  all  the  books,  papers,  property, 
assets  and  effects,  of  the  said  corporation  defendant,  in  their  pos- 
session, on  being  reimbursed  and  indemified  for  all  the  moneys 
expended,  and  pecuniary  responsibilities  incurred  by  them  as  such 
receivers. 

And  it  is  further  ordered,  that  the  same  receivers  shall,  (subject  to 

and  adjudged,  that  the  relator,  Michael  receiver  shall  proceed  to  wind  up  the 
Murphy,  has  shown  no  right  or  title  to  affairs  of  the  said  association  —  the 
maintain  the  information  in  the  name  ulterior  object  of  this  decree  being  that 
of  the  Commonwealth  ;  and  that  the  the  property  and  assets  of  the  said  de- 
same  be  and  hereby  is  quashed  and  fendant  shall  be  equitably  distributed 
wholly  taken  for  naught;  and  that  the  among  the  creditors  of  the  said  defend- 
relator  pay  to  the  defendants  their  law-  ant.  And  it  is  further  ordered,  that,/, 
ful  costs  in  this  behalf  expended."  Thomas  Scharf,  the  receiver  aforesaid, 

1.  Decree  appointing  receiver  to  wind  ap  give  notice  to  all  creditors  of  the  said 

a  corporation  is  set  out   in   Hayes  v.  defendant  to  file    their  claims  in  this 

Brotzman,  46  Md.  519,  which,  omitting  cause,  and  upon  the  proof  of  the  same 

the  formal  parts,  is  as  follows:  that  the  said  creditors  be  allowed  their 

"The  bill  and  answer  in  the  above  distributive  portion  of  the  assets  of  the 

cause  having  been  read  and  considered,  said   defendant.       And    it     is    further 

and  the  same  submitted  for  decree,  it  ordered,  that  the  said /.  Thomas  Scharf, 

is  thereupon,  on   this  the  i8th  day  of  receiver   as  aforesaid,  shall  prosecute 

August,  A.D.  i?)7S,  by  the  Circuit  Court  and  defend  all  suits  at  law  that  may 

of  Baltimore  City,    adjudged,    ordered  now  be  pending,  or  may  be   hereafter 

and  decreed,  that y.  Thomas  Scharf  he  instituted,  in    which    the   said   defend- 

and  he  is  hereby  appointed  receiver  of  ant  may  be  a  party.     And  it  is  further 

the  South  Ann  Street  Perpetual  Savings  ordered,     that      the     said  f.     Thomas 

Association  of  Baltimore  City,   and   that  Scharf,   the  receiver   aforesaid,  before 

the   said  association  turn  over  to  the  he   enters   upon    the  discharge   of  the 

said    receiver    all   its    books,    papers,  duties  of  the  said  receiver,  shall  give 

promissory  notes,  writing  obligations,  the   usual  bond  in  the  penalty  of  five 

choses     in    action,    claims,    demands,  thousand  dollars,  for  the  faithful   per- 

property  and  assets,  and  that  the  said  formance  of  his  duties  as  said  receiver." 

731  Volume  5. 


6458. 


CORPORATIONS. 


6458. 


the  order  of  this  Court,)  nave  the  power  to  sell  the  property  of  said 
corporation  defendant,  and  make  all  collections  of  outstanding 
indebtedness,  and  shall  have  the  power  to  institute  all  such  proceed- 
ings at  law  and  in  equity,  as  may  be  necessary  for  the  purpose  of 
enforcing  the  rights  of  said  defendant  corporation,  subject  to  the 
direction  of  this  court. 

And  it  is  further  ordered,that  before  the  said  Robert  D.  Morrison^ 
George  J.  Appoid,  Samuel  Snowden,  and  Joseph  Friedenwald  proceed 
to  act  as  receivers  by  virtue  of  this  decree,  they  shall  each  give  bond 
CO  the  state  of  Maryla?id\n  the  penalty  of  t7«<f  hundred  thousand  dollars, 
with  surety  or  sureties  to  be  approved  by  this  Court,  and  conditioned 
for  the  faithful  performance  of  the  trust  reposed  in  him  by  this 
decree,  or  which  may  be  reposed  in  him  by  any  future  decree  or 
order  in  the  premises. 

Campbell  W.  Pinkney. 

Form  No.  645 8. > 

[At  a  Trial  Term  of  the  Superior  Court  of  Buffalo^  held  at  the  City 
and  County  Hall,  in  the  City  of  Buffalo^  New  York,  on  the  fourteenth 
^^■^  oi  April,  i8P0.]2 
Present,  Hon.  Edward  W.  Hatch,  Judge  presiding. 


1.  This  judgment  is  copied  from  the 
record  in  People  v.  Buffalo  Stone,  etc., 
Co.,  131  N.  Y.  140. 

Order  Appointing  Beceiver,  etc. — Michi- 
gan. —  In  Turnbull  v.  Prentiss  Lumber 
Co.,  55  Mich.  387,  in  a  creditor's  suit  to 
wind  up  an  insolvent  corporation,  the 
following  order  was  made: 

"  The  motion  for  the  appointment  of 
a  receiver  in  this  cause  having  come 
on  to  be  heard,  and  solicitors  for  the 
respective  parties  having  been  heard 
thereon,  now,  on  motion  of  Turnbull 
<Sr»  Dafoe,  solicitors  for  the  complain- 
ant, it  is  ordered  by  the  court  that 
Charles  B.  Greely  be,  and  he  is  hereby, 
appointed  receiver  of  all  the  property, 
equitable  interests,  things  in  action 
and  effects  of  said  Prentiss  Lumber 
Company,  a  corporation,  one  of  the 
above  named  defendants,  belonging  or 
in  any  way  appertaining  to  said  defend- 
ant (said  corporation)  at  the  time  of  the 
commencement  of  this  suit,  to  wit,  on 
the  2d  day  of  February,  a.  d.  18^^ 
(except  such  as  are  exempt  by  law 
under  the  statutes  of  this  state,  if  any), 
and  vested  with  all  the  rights  and 
powers  of  a  receiver  in  chancery,  upon 
the  filing  with  the  register  of  this  court 
a  bond  for  the  faithful  performance  of 
his  duties  as  such  in  the  penal  sum  of 
Jive  thousand  dollars,  and  the  approval 
by  this  court.     And  it  is  further  ordered 


that  said  Prentiss  Lumber  Company  and 
its  proper  officers  assign,  transfer  and 
deliver  over  to  said  receiver,  on  oath, 
under  direction  of  the  court  or  the  judge 
thereof,  all  and  singular  the  property, 
real  and  personal,  of  or  belonging  to 
said  corporation,  said  defendant  and 
the  said  Prentiss  Lumber  Company,  its 
officers  and  agents,  forthwith  surrender 
and  deliver  to  said  receiver  all  the 
assets,  materials,  tools,  machinery, 
fixtures,  effects,  and  property  of  every 
description,  nature  or  kind  of  or  be- 
longing to  said  Prentiss  Lumber  Com- 
pany; and  also  all  money,  drafts  and 
bills  of  exchange,  checks  or  other  evi- 
dence of  indebtedness  due  and  owing 
to  said  Prentiss  Lumber  Company,  as 
well  all  books  of  account,  books  of 
record  of  said  corporation,  accounts, 
deeds,  bonds,  mortgages,  certificates  of 
stock,  vouchers  and  papers  of  every 
nature  and  description  belonging  to 
said  corporation,  and  that  said  receiver, 
or  either  or  any  of  the  parties  to  this 
cause,  have  leave  to  apply  to  the  court 
from  time  to  time  for  such  further 
orderor  direction  as  may  be  necessary." 
2.  The  superior  court  of  Buffalo  has 
been  abolished,  and  the  jurisdiction 
formerly  possessed  by  it  vested  in  the 
supreme  court.  N.  Y.  Const.  (1895), 
art.  6,  §  5. 


732 


Volume  5. 


6459.  CORPORATIONS.  6459. 

The  People  of  the  State  of  New  York  \ 

against         '  [•  Judgment. 

The  Buffalo  Stone  and  Cement  Company.  ) 

This  cause  having  been  duly  reached  on  the  calendar  in  its  regular 
order  at  a  Trial  Term  of  this  court,  before  the  -Hon.  Edward  W. 
Hatch,  one  of  the  judges  thereof,  on  the  twenty-first  day  ol  fanuary, 
iS90,  and  a  jury  trial  of  this  action  having  been  waived  in  open  court 
by  the  counsel  of  the  respective  parties  therein;  and  the  case  having 
been  tried  before  court,  and  the  decision  of  said  judge  having  been 
filed  with  the  clerk  of  this  court  on  the  fourteenth  day  of  April,  iS90, 
in  which  he  decides  judgment  among  other  things  that  the  plaintiff  is 
entitled  to  judgment,  dissolving  the  defendant  corporation  with 
costs;  and  the  costs  of  the  plaintiff  having  been  adjusted  at  one  hun- 
dred and  sixteen  dollars  and  sixty-one  cents  {%116.6T). 

Now  on  motion  of  Strong  (S^*  Brendel,  of  counsel  for  plaintiff,  it  is 
adjudged  that  the  charter  of  the  defendant  the  Buffalo  Stone  and 
Cement  Company  be,  and  the  same  hereby  is,  dissolved,  and  the  rights, 
privileges  and  franchises  of  said  defendant  are  hereby  declared 
forfeited. 

It  is  further  adjudged,  that  a  receiver  of  the  property  and  effects 
of  the  defendant  be  appointed  with  all  the  power  and  authority  con- 
ferred by  law,  and  subject  to  all  the  duties  and  liabilities  imposed 
upon  receivers  in  such  cases. 

It  is  further  adjudged,  that  the  defendant,  its  trustees,  directors, 
managers  and  other  officers  be  forever  restrained  from  collecting 
and  receiving  any  debt  or  demand,  and  from  paying  out  or  in  any 
way  transferring  or  delivering  to  any  person,  any  money,  stock, 
property,  or  effects  of  the  said  corporation  and  from  exercising  any 
of  the  corporate  rights,  franchises  or  privileges  of  the  corporation. 

It  is  further  adjudged,  that  the  plaintiff  recover  of  the  defendant 
the  sum  of  %116.61,  adjusted  as  costs  in  this  action. 

Judgment  signed  this  fourteenth  day  oi  April,  i890. 

Moses  Shire,  Clerk. 

Form  No.  6459.' 

At  a  SpeeialTerm  of  the  Supreme  Court  of  the  State  of  New  York, 
held  at  the  County  Court-house,  in  the  City  of  New  York,  on  the 
thirty- first  day  of  January,  \Z8g. 

Present,  Hon.  George  C.  Barrett,  Justice. 
The  People  of  the  State  of  New  York^ 

The  North  River  Sugar  Refining      [  J      ^ 
Company. 

The  summons  and  complaint  in  this  action  having  been  duly  served 
on  the  defendant,  and  said  defendant  having  served  its  answer  herein, 
and  the  issues  in  said  action  having  been  tried  at  a  Trial  Term  of  this 
court  at  the  court-house  in  the  city  of  New  York,  on  the  fourteenth  day 
of  November,  j888,  before  Mr.  Justice  Barrett  and  a  jury,  and  at  the 

1.  This  judgment  is  copied  from  the  record  in  People  v.  North  River  Sugar 
Refining  Company,  121  N.  Y.  582. 

738  Volume  5. 


6459.  CORPORATIONS.  6459. 

close  of  the  evidence  the  said  plaintiffs  having  moved  the  court  to 
direct  a  verdict  for  the  plaintiffs,  and  the  said  defendant  having 
moved  the  court  to  direct  a  verdict  for  the  defendant,  and  the  said 
court  having  denied  said  motion  of  the  defendant  and  granted 
said  motion  of  the  plaintiffs,  and  the  jury  under  the  direction  of  the 
court  having  rendered  a  verdict  in  favor  of  the  plaintiffs,  and  a  motion 
for  judgment  now  coming  on  to  be  heard; 

Now,  upon  reading  and  filing  said  summons  and  complaint,  the 
answer  and  the  verdict  aforesaid,  and  on  motion  of  Charles  F.  Tabor ^ 
attorney-general,  after  hearing  Mr. ,  counsel  for  the  defendant, 

It  is  adjudged  and  decreed  that  the  defendant  has  offended  against 
the  provisions  of  the  act  under  which  it  was  created  and  has  violated 
provisions  of  law  whereby  it  has  forfeited  its  charter  and  become 
liable  to  be  dissolved  by  abuse  of  its  power. 

And  it  is  further  adjudged  and  decreed  that  the  said  defendant, 
The  North  River  Sugar  Refining  Company.,  be  and  the  same  is  hereby 
dissolved,  and  its  corporate  rights,  privileges  and  franchises  forfeited 
to  the  people  of  the  state  of  New  York. 

And  it  is  further  adjudged  and  decreed  that  the  said  defendant, 
The  North  River  Sugar  Refining  Company,  its  trustees,  directors,  man- 
agers and  other  officers,  attorneys  and  agents,  be,  and  each  of  them 
hereby  is,  forever  restrained  and  enjoined  from  exercising  any  of  the 
corporate  franchises,  powers,  rights  or  privileges  of  the  defendant, 
and  from  collecting  or  receiving  any  debts  or  demands  belonging  to 
or  held  by  the  defendant,  and  from  paying  out  or  in  any  manner  in- 
terfering with,  transferring  or  delivering  to  any  person,  any  of  the 
deposits,  moneys,  securities,  property  or  effects  of  the  said  defendant 
or  held  by  it. 

It  is  further  adjudged  and  decreed  that  Henry  Winthrop  Gray.,  Esq., 
of  the  city  oi  New  York,  be  and  he  is  hereby  appointed  receiver  of 
all  the  property,  real  and  personal,  things  in  action  and  effects,  of 
the  said  corporation.  The  North  River  Sugar  Refining  Company.,  held 
by  and  vested  in  it  or  in  or  to  which  it  may  be  in  anywise  interested 
or  entitled  with  the  usual  powers  and  duties  enjoyed  and  exercised 
by  receivers  according  to  the  practice  of  this  court  and  of  the  statutes 
in  such  cases  made  and  provided. 

It  is  also  adjudged  and  decreed  that,  before  entering  upon  the  duties 
of  his  trust,  such  receiver  execute  and  file  with  the  clerk  of  Neiv  York 
county  a  bond,  with  at  least  two  sufficient  sureties  to  the  people  of 
the  state  of  New  York,  in  the  penal  sum  of  one  hundred  thousand do\- 
lars,  conditioned  for  the  faithful  discharge  by  said  receiver  of  the 
duties  of  his  trust;  such  bond  to  be  approved  as  to  its  sufficiency, 
form  and  manner  of  execution  by  a  justice  of  the  Supreme  court. 
Upon  the  filing  of  such  bond  thus  approved,  the  said  receiver  is  au- 
thorized and  directed  to  take  possession  of  and  sequestrate  the  prop- 
erty, things  in  action  and  effects,  real  and  personal,  of  the  defendant 
herein,  and  to  take  and  hold  all  property  held  by  or  in  possession  of 
said  defendant  corporation  and  to  secure  and  reduce  to  possession  all 
property  to  which  said  corporation  may  be  entitled;  that  an  account 
of  the  assets  and  property  and  debts  and  liabilities  of  said  defendant 
be  taken,  and  that  the  property  of  such  defendant  be  distributed 

734  Volume  5. 


6460.  CORPORATIONS.  6460. 

among  its  stockholders  or  persons  lawfully  entitled  thereto,  and  fair 
and  honest  creditors  in  the  order  and  proportions  prescribed  by  law 
in  case  of  the  voluntary  dissolution  of  a  corporation. 

It  is  further  adjudged  and  decreed  that  such  further  application 
may  be  made  to  this  court  under  the  provisions  of  this  decree  or 
order  as  the  receiver  may  be  advised  is  proper  and  necessary  for 
his  instruction  in  the  management  and  conduct  of  his  trust. 

It  is  further  adjudged  and  decreed  that  no  application  shall  be 
made  to  any  court  against  the  receiver  relative  to  or  in  any  way 
connected  with  the  duties  of  said  receiver,  or  the  funds  or  assets 
of  the  defendant  above  mentioned,  or  their  transfer,  sale  or  delivery, 
unless  at  least  five  days'  notice  of  such  application  be  first  given  to 
said  receiver  and  to  the  attorney-general  of  the  state  of  New  York 
and  the  defendant's  attorney. 

It  is  further  adjudged  and  decreed  that  said  receiver  proceed 
according  to  law  to  convert  into  money  all  the  property  and  assets 
held  or  owned  by  said  defendant  or  to  which  said  defendant  may  be 
in  anywise  entitled,  and  forthwith  upon  receiving  such  money  he 
shall  deposit  the  same  in  the  United  States  Trust  Company  of  the  city 
of  New  York  to  the  credit  of  said  receiver,  to  be  held  by  him  subject 
to  the  further  order  of  the  court,  and  said  money  so  deposited  as 
aforesaid  with  said  Trust  Company  shall  not  be  delivered  over  by  it, 
unless  the  check,  draft  or  demand  therefor  be  accompanied  with  a 
certified  copy  of  an  order  of  this  court  directing  such  payment;  such 
order  to  be  made  only  on  notice  to  the  attorney-general  and  the 
defendant's  attorney. 

And  it  is  further  adjudged  that  the  plaintiffs,  the  people  of  the 
state  of  New  York,  recover  of  the  defendant,  Tke  North  River  Sugar 
Refining  Company,  the  sum  of  ninety-three  dollars  and  fourteen  cents 
costs  and  disbursements  of  this  action,  which  said  sum  the  said 
receiver  is  hereby  directed  to  pay  to  the  attorney-general. 

Edward  F.  Reilly,  Clerk. 

2.  Proceedings  for  Voluntary  Dissolution.^ 

1.  Voluntary  diBsolation  of  a  corpora-  Idaho.  —  Rev.  Stat.  (1887),  §  5186  et 

tion  may  be  accomplished  as  provided  seq. 

by    statute.      Consult     the     following  Illinois.  —  Starr    &    C.    Anno.    Stat, 

statutory  provisions:  {1896),  p.  1028,  par.  50  et  seq. 

Alabama.  —  Civ.  Code  (1886),  §  1683  Iowa.  —  Code  (1897),  §  1617. 

et  seq.  Kansas,  —  i  Gen.  Stat  (1897),  p.  700, 

Arizona.  —  Rev.  Stat.  (1887),  §  239.  §  45  et  seq. 

Arkansas.  —  Sand.  &   H.   Dig.  (1894),  Kentucky.  —  Stat.  (1894),  §  561. 

§  1429  et  seq.  Maryland.  —  Pub.  Gen.  Laws  (1888), 

California.  — Code  Civ.  Proc.  (1897),  p.  388,  §  265. 

§  1227  et  seq.  Massachusetts.  —  Pub.  Stat.  (1882),  p. 

Colorado.  —  Mills'  Anno.  Stat.  (1891),  569,  §  40  et  seq. 

§  497,  §  619  et  seq.,  §  640;  Laws  (1891),  Michigan.  — How.  Anno.  Stat.  (1882), 

p.  95.  §  8174  et  seq. 

Connecticut.  —  Gen.  Stat.  (1888),  §  194a  Minnesota.  —  Stat.  (1894),  55  3430. 

et  seq.\  Laws  (1893),  p.  224.  Missouri.  —  Rev.  Stat.   (1889),  §  2513 

Delaware. —  17  Laws,  c.  147  (Rev.  Stat,  et  seq. 

(1893),  c.  70).  Montana.  —  Code  Civ.  Proc.  (1895),  § 

Florida.  —  Rev.  Stat.  (1892),  §  2154  et  2190  et  seq. 

seq.  Nevada.  —  Gen.  Stat.  (1885),  §  822  et 

Georgia.  —  2  Code  (1895),  §  1879  et  seq.  seq. 

785  Volumes. 


Petition. 


6460.  CORPORATIONS.  6460. 

a.  Petition.' 

Form  No.  6460.^ 

Court  of  Common  Pleas,  for  the  City  and  County  of  New  York. 
In  the  matter  of  the  application  of  the  trustees  ^ 

of  the  corporation  called 

Importers  and  Grocers'  Exchange  of  New  York 

for  a  Voluntary  Dissolution. 

To  the  Court  of  Common  Pleas  for  the  City  and  County  of  New 
York'. 

The  petition  of  Henry  F.  Hitch,  Ira  Pursley,  Moses  G.  Wanzor, 
Thomas  T.  Parr,  Levis  W.  Minford,  James  C.  Russell,  Henry  Hentz, 
Osgood  Welsh,  Penjamin  C.  Arnold,  as  trustees  of  the  Importers  and 
Grocers'  Exchange  of  New  York,  respectfully  shows: 

First.  That  the  said  Importers  and  Grocers'  Exchange  of  New  York 
is  a  corporation  created  by  and  under  the  laws  of  the  state  of  New 
York,  having  been  incorporated  under  the  provisions  of  the  act 
entitled  "  An  Act  to  provide  for  the  incorporation  of  Exchanges  or 
Boards  of  Trade,"  passed  May  3, 1877,  and  its  principal  office  is  located 
at  No.  101  Water  street,  in  the  city  of  New  York,  in  the  county  of 
New  York. 

Second.  That  your  petitioners  are  a  majority  of  all  the  trustees 
having  the  management  of  the  concerns  of  said  corporation,  and  hold 
and  own  most  of  the  capital  stock  thereof.  That  the  said  Henry  F. 
Hitch  is  president  and  Samuel  C.  Purdick  is  treasurer  of  the  Exchange. 
That  the  full  board  of  said  trustees  consists  of  fifteen  members. 
That  the   names  and  residences  of  all  such  trustees  who  do  not  unite 


New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  147,  §  10. 

New  Mexico.  — Comp.  L.  (1884),  §  211. 

Nezv  York.  —  Birds.  Rev.  Stat.  (1896), 
p.  678,  §  97  et  seq. 

North  Carolina.  —  Code  (1883),  §  694. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  2912. 

Ohio. —  Bates'  Anno.  Stat.  (1897),  § 
5651  et  seq. 

Oklahoma.  —  Stat.  (1893),  §  968  et  seq. 

Oregon.  —  Hill's  Anno.   Laws  (1892), 

§  3235- 

Pennsylvania.  —  Bright.  Pur.  Dig. 
(1894),  p.  426,  ^  115  et  seq. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §  2938  et  seq. 

Utah.  —  Rev.  Stat.  (1898),  §  3661  et 
seq. 

Vermont.  —  Stat.  (1894),  §  3735,  et 
seq. 

Washington.  —  Ballinger's  Anno. 
Codes  &  Stat.  (1897),  §  4275. 

West  Virginia. — Code  (1891),  p.  510, 

§56. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  1788,  et  seq. 


See  also  list  of  statutes  cited  supra, 
note  I,  p.  527. 

1.  For  formal  parts  of  petitions  of  this 
character  consult  the  title  Petitions. 

2.  This  petition  is  copied  from  the 
record  in  Matter  of  Importers,  etc., 
Exch.,  132  N.  Y.  212,  which  was  in 
special  proceeding  to  dissolve  a  corpora- 
tion under  the  New  York  Code  of  Civil 
Procedure,  S§  2419-32.  The  court  of 
appeals  affirmed  an  order  of  the  general 
term  of  the  supreme  court  reversing  an 
order  of  the  court  of  common  pleas  of 
New  York  city  denying  the  application, 
holding  that  a  corporation  organized 
under  the  act  of  1887  (N.  Y.  Laws  (1887), 
c.  228),  providing  for  the  organization 
of  exchanges  or  boards  of  trade,  may 
be  dissolved  by  the  court  upon  the  peti- 
tion and  consent  of  a  large  majority  of 
its  trustees  and  members,  when  it  ap- 
pears that  the  corporation  is  doing  no 
business  because  of  the  diverse  interests 
of  its  members,  notwithstanding  the 
fact  that  the  corporation  is  solvent  and 
a  minority  of  the  trustees  and  members 
oppose  the  dissolution. 


786 


Volume  5. 


6460.  CORPORA  TIONS.  6460. 

in  this  petition  are  as  follows  {names  and  residences  of  trustees)} 

Third.  That  the  nature  of  the  business  and  the  objects  for  which 
said  corporation  was  formed  are  {nature  and  objects  of  corporation)!^ 

Fourth.  That  the  said  Exchange  has  already  outlived  its  usefulness; 
that  as  early  in  its  existence  as  the  year  1 855,  and"  after  two  years 
of  business,  a  petition  was  presented  to  the  trustees  by  the  mem- 
bers of  said  Exchange  asking  them  to  wind  up  the  corporation  and 
procure  its  dissolution  for  the  reason  that  it  was  of  no  real  benefit  to 
its  members.  That  such  petition  was  signed  by  one  hundred  and  ninety 
out  of  a  total  membership  of  about  two  hundred  and  twenty.  That  at 
that  time  the  trustees  deemed  it  best  to  continue  business  for  some 
time  longer,  in  the  hope  that  by  amendment  of  rules  and  regulations 
then  suggested  by  nonpetitioning  members  the  Exchange  might 
still  be  made  to  serve  the  purpose  of  its  creation;  but  it  has  been 
found  that,  aside  from  making  an  unreliable  daily  quotation  of  the 
price  of  tea,  and  giving  the  number  of  tons  of  the  receipts  and  stock 
of  tea  and  sugar,  it  furnishes  no  information  of  any  value.  The  daily 
circular  was  omitted  for  eighteen  months  and  has  only  recently  been 
revived  by  a  few  personally  interested. 

That  the  Exchange  room  is  not  attended  from  day  to  day  by  more 
than  two  or  three  members.  That  a  young  man  is  kept  in  attendance, 
who,  at  the  instance  of  a  few  men  engaged  in  the  tea  trade,  writes  up 
a  few  figures  on  the  blackboard  and  sends  out  a  daily  circular  of 
prices  based  thereon.  This  was  also  omitted  for  eighteen  months, 
but  has  been  revived  as  above  stated.  That  the  trust  fund  of  the 
Exchange  has  continued  to  increase  from  annual  interest  but  no  new 
membership  tickets  are  sold.  That  the  price  or  value  of  seats  or 
privileges  of  the  floor  has  receded  from  seven  hundred  and  fifty  dioWdiTS 
to  two  hundred  dollars  each.  That  aside  from  a  very  few,  no  interest 
is  manifested  by  members  in  the  affairs  of  the  Exchange.  That  the 
meeting  or  Exchange  room  has  been  removed  from  time  to  time  to 
smaller  quarters  until  at  present  one  small  room  at  No.  107  Water 
street,  located  on  the  third  floor  of  the  building,  divided  by  a  panel 
partition  is  found  to  be  more  than  ample  accommodation  for  the  few 
who  ever  go  there,  and  the  rental  of  said  room  is  the  sum  of  three 
hundred  dollars  per  annum, 

1.  The    names    and   residences  of   the  "To   foster    trade    and    commerce  in 

tnifltees  not  uniting  in  the  petition  were  groceries  and  East  Indian   and   South 

as  follows:   "  Charles  G.  Boardman,  re-  American    products;    to    protect    such 

siding  at  to2  East  Fifty-seventh  street,  trade  from   unjust  or  unlawful   exac- 

N^ew  York  City;  Henry  E.  Hawley,  re-  tions;  to  reform  abuses  in  such  trade; 

siding  at  i6   West  Thirty-third  street,  to  diffuse  accurate  information  and  to 

N'e7u    York   City;   Fred.    A.   Mead,  Jr.,  produce    uniformity    and    certainty    in 

residing  at   /   West  Fifty-sixth   street;  the  customs  and  usages  of  the  trade  in 

Charles  W.  Beebe,  residence  not  known,  said  merchandise;  to  settle  differences 

but  doing  business  at  ijo  Water  street,  between  the  members  of  said  corpora- 

Neiv    York  City;   Joachim  J.    Francke,  tion  arising  out  of   the    trade  in   said 

residing  in  Havana,  Cuba,  and  Everett  merchandise   and   to   promote  a  more 

Frazar,     residing     at    New    Brighton,  friendly  intercourse  between  merchants 

Staten  Island."  engaged  in  said  trade;  and  generally 

S.  The  nature  of  the  hnsiness  and  oh-  to  increase  the  facilities  for  conducting 

jects   for   which    the    corporation   was  the  trade  in  groceries  and  East  Indian 

formed,  as  referred  to  in  the  text,  were  and  South  American  products." 

5  E.  of  F.  P.  —47-                         737  Volume  5. 


6461.  CORPORATIONS.  6461. 

That  the  members  of  said  Exchange  number  about  two  hundred  and 
fifteen^  and  the  sale  of  membership  tickets  or  certificates  from 
time  to  time  has  accumulated  a  trust  fund  now  amounting  to 
upwards  of  sixty  thousand  doWars,  in  the  distribution  of  which  all  mem- 
bers and  stockholders  are  interested. 

That  the  great  majority  of  all  the  members  are  still  desirous  of 
having  the  corporation  dissolved,  and  to  further  their  wishes,  your 
petitioners,  being  a  majority  of  the  trustees,  favoring  such  action,  and 
believing  it  beneficial  to  the  interest  of  the  stockholders  and  mem- 
bers, therefore  file  this  their  petition  accordingly,  to  procure  a  volun- 
tary dissolution  of  said  corporation  and  the  suitable  distribution  of 
its  trust  fund  to  those  entitled  thereto. 

Fifth.  That  the  schedule  hereto  annexed  states,  so  far  as  your 
petitioners  know,  or  have  the  means  of  knowing  (^substance  of 
schedule)} 

Sixth.   There  is  no  stock  remaining  unissued  or  unpaid. 

Seventh.  That  no  other  application  has  been  made  for  the  order 
herewith  applied  for. 

Wherefore,  your  petitioners  pray  for  a  final  order  dissolving  said 
corporation  and  appointing  a  receiver  of  its  property,  to  wind  up  its 
affairs  and  distribute  its  assets  to  those  entitled  thereto  and  for 
such  other  relief  as  may  be  just. 

Dated  New  York,  May  2,  i887. 

(^Signatures  of  Petitioners^ 
Hascall,  Clarke  6-"  Vander  Poel, 
Attorneys  for  Petitioners,  71  Broadway,  N.  Y.  City. 

(Schedule  annexed.) 

(  Verification.  )2 

Form  No.  6461 .' 

In  the  Superior  Court  of  the  City  and  County  of  San  Francisco, 
State  of  California. 

1.  Schedule  referred  to  in  the  text  made  of  all  the  property  of  the  corporation, 

statements  showing  the  following:  and   of   all    the    books,    vouchers   and 

"  1st.  A  full  and  true  account  of  all  securities  relating  thereto, 

the  creditors  of  the  corporation,  and  of  6th.  A    statement    of    each    incum- 

all    unsatisfied    engagements    entered  brance  upon  the  property  of  the  corpo- 

into  by  and  subsisting  against  the  cor-  ration  by  mortgage,  judgment,  pledge 

poration.  or  otherwise. 

cd.  A   statement   of   the   name   and  7th.  A  full,  just  and  true  account  of 

place  of  residence  of  each  creditor,  and  the   capital   stock    of   the   corporation, 

of  each  person  with  whom  such  an  en-  specifying    the    name   of    each    stock- 

gagement  was  made,  and  to  whom  it  holder;  his  residence,  if  it  is  known,  or 

is  to  be   performed,   if   known;   or,   if  if  it  is  not  known,  stating  that  fact; 

either   is   not   known,   a  statement   of  the   number   of    shares    belonging    to 

that  fact.  him;    the   amount    paid    in   upon   his 

3d.  A  statement  of  the  sum  owing  to  share;  and  the  amount  still  due  there- 
each  creditor,  or  other  person  specified  upon.  Also,  the  names  and  residence 
in  the  last  subdivision,  and  the  nature  of  of  all  members,  if  known;  or  if  it  is 
each  debt,  demand  or  other  engagement,  not  known,  stating  that  fact." 

4th.  A  statement  of   the  true  cause  2.  Consult  the  title  Verifications. 

and  consideration  of  the  indebtedness  3,  California. — Code  Civ.    Proc,  §§ 

to  each  creditor.  1228-1230.     Seealsolistof  statutes  cited 

5th.  A  full,  just  and  true  inventory  supra,  note  i,  p.  735. 

788  Volume  5. 


6462.  CORPORATIONS.  6462. 

In  the  matter  of  the  application  of  the    i 

Stabot  Carriage  Company,  >  Petition  for  Dissolution, 

a  corporation,  for  Voluntary  Dissolution.  ) 

To  the  Honorable  Superior  Court  of  the  City  and  County  of  San 
Francisco,  in  the  State  of  California. 
The  petition  of  the  Stabot  Carriage  Company,  corporation  aforesaid, 
represents  and  states: 

I.  (^Like  first  paragraph  in  Form  No.  6^60.) 

II.  That  at  a  meeting  of  the  stockholders  and  members  of  the  said 
corporation,  the  said  Stabot  Carriage  Company,  called  for  that  pur- 
pose, the  dissolution  of  the  corporation  was  resolved  upon  by  a  two- 
thirds  vote  of  the  stockholders  of  said  corporation. 

III.  That  all  claims  and  demands  against  the  said  corporation,  the 
said  Stabot  Carriage  Company,  have  been  satisfied  and  discharged. 

IV.  That  the  total  number  of  shares  of  the  capital  stock  of  said 
corporation  \s  five  thousand  (5,000).  That /our  thousand  five  hundred 
and  fifty  shares  of  the  said  capital  stock  of  said  corporation  was  duly 
represented  at  said  meeting  called  as  aforesaid,  at  the  office  of  said 
company,  in  said  city  and  county,  for  the  purpose  of  the  dissolution 
of  said  corporation,  on  \.\i^  first  day  of  May,  i897,  and  that  the  vote 
of  all  the  stockholders  at  said  meeting  was  as  follows:  Four  thousand 
five  hundred  and  fifty  shares  represented  by  stockholders  as  aforesaid, 
were  for  dissolution. 

V.  That  the  board  of  directors  or  trustees  of  said  corporation  con- 
sist of  five,  all  stockholders  thereof,  and  residents  of  said  city  and 
county  of  San  Francisco,  and  their  names  are  as  follows:  Z.  F.  Stan- 
ford, Marcus  Heit,  Fisher  Marsh,  D.  B.  Field  and  J.  M.  Putner,  and 
that  said  persons  so  named  as  trustees  aforesaid,  have  had  the  sole 
management  of  the  affairs  of  said  corporation  for  one  year  next  pre- 
ceding this  application,  and  are  now  such  managers. 

Wherefore,  your  petitioners  pray  that  your  honor  will  order  this 
petition  to  be  filed  with  the  clerk  of  this  court,  and  that  the  clerk 
give  notice  of  the  nature  of  this  application,  not  less  than  thirty  nor 
more  than^f/'/y  days,  and  of  the  time  and  place  of  hearing  the  same, 
by  publication  in  some  newspaper  published  in  the  city  and  county 
of  San  Francisco.  That  after  the  time  of  publication  has  expired 
your  honor  may,  upon  five  days'  notice  to  any  persons  who  have  filed 
objections  within  the  time  prescribed  by  section  1231  of  the  Code  of 
Civil  Procedure,  or  without  notice  if  no  objections  have  been  filed, 
proceed  to  hear  and  determine  this  application,  and  after  hearing, 
adjudge  and  declare  said  corporation  dissolved  in  accordance  with 
the  law  in  such  cases  made  and  provided. 

(Signatures  of  the  majority  of  the  board  of  trustees,  directors,  or  officers 
having  the  management  of  the  affairs  of  corporation. ) 

(  Verification,  y- 

b.  Order  to  Show  Cause. 

Form  No.  6462.^ 

1.  Consult  the  title  Verifications.  For  the  formal  parts  of  orders  to  show 

2.  New    York.  —  Birds.     Rev.    Stat,  cause,  generally,  consult  the  title  Or- 
(1896),  p.  678,  §  97  et  seq.     See  also  list  of  ders  AND  RuLES  TO  Show  Cause, 
statutes  cited  supra,  note  i,  p.  735. 

739  Volume  5. 


6463.  CORPORATIONS.  6463. 

(7/V/(f  of  court  as  in  Form  No.  6427.) 
(  Tif/e  of  cause  as  in  Form  No.  6Jf60. ) 

On  reading  and  filing  the  petition  of  Henry  F.  Hitch  and  (naming 
other  trustees),  of  the  Importers  and  Grocers'  Exchange  of  New  York,  a 
corporation  created  under  the  laws  of  the  state  of  New  York,  whose 
principal  office  and  place  of  business  is  located  at  107  Water  street 
in  the  city  of  New  York,  in  the  county  of  New  York,  state  of  New 
York,  and  also  the  schedule  to  said  petition  annexed,  which  said  peti- 
tion and  schedule  were  duly  verified  by  the  petitioners  on  the  second 
day  oiMay,  iS87,  and  Messrs.  Hascall,  Clarke  and  Vafider  Poel,  attor- 
neys for  petitioners,  having  appeared  herein  on  motion  of  said  counsel, 
it  is 

Ordered,  That  all  persons  interested  in  the  said  corporation,  the 
said  Importers  and  Grocers'  Exchange  of  Neiv  York,  be  and  appear 
before  this  court  at  the  county  court-house  in  the  city  of  New  York,  in 
the  said  county  oi  New  York,  on  \.\\t.  fifth  day  of  March,  i887,  to  show 
cause  why  the  said  corporation,  the  said  Importers  and  Grocers'  Ex- 
change of  Neiv  York,  should  not  be  dissolved. 

And  it  is  further  ordered  that  a  copy  of  this  order  be  published  at 
least  once  in  each  week  of  three  weeks  preceding  the  said  fifth 
day  of  March,  iS87,  in  the  New  York  Journal  and  Advertiser  and  the 
New  York  Times,  newspapers  published  in  the  city  of  New  York,  in 
the  county  of  New  York,  in  the  state  oi  New  York,  wherein  this  order 
is  entered. 

Edward  W.  Hatch,  Justice  Supre?ne  Court. 

e.  Order  Fixing  Time  and  Place  of  Hearing  Petition. 

Form  No.  6463.' 

(Title  of  court  and  cause  )  Order  for  notice  of  Application  for  Volun- 
as  in  Form  No.  6461.)  \      tary  Dissolution. 

On  reading  the  petition  for  voluntary  dissolution,  heretofore  filed 
in  this  court,  of  the  Stabot  Carriage  Company,  a  corporation,  which 
said  petition  prayed  among  other  things  for  the  fixing  of  a  time  and 
place  by  this  court  for  the  hearing  of  said  petition  and  for  a  direc- 
tion to  the  clerk  of  the  Superior  Court  ordering  him  to  publish  a  notice 
thereof  and  of  the  nature  of  said  application,  and  Oliver  Ellsworth, 
attorney  for  said  corporation,  the  Stabot  Carriage  Company,  having 
appeared  in  behalf  of  the  petitioners,  it  is  now  ordered  that  the  said 
petition  be  filed  with  the  clerk  of  the  Superior  Court  of  the  city  and 
county  of  San  Francisco,  and  that  on  Friday,  the  twelfth  day  of 
November,  iS97,  at  ten  o'clock  in  the y"(?r(?noon  of  that  day,  or  as  soon 
thereafter  as  counsel  can  be  heard,  at  the  court-room  of  this  court 
in  the  new  City  Hall  in  the  city  and  county  of  San  Francisco,  state  of 
California,  the  said  petition  shall  be  heard,  and  that  the  said  clerk  of  the 
said  Superior  Court  of  the  city  and  oownly  of  San  Francisco  be  and  he  is 
hereby  ordered  to  publish  a  notice  of  said  petition  and  of  the  general 

1.  California  Code  Civ.  Proc,  §  1230.        For  the  formal  parts  of  orders,  gener- 
See  also  list  of  statutes   cited  supra,     ally,  consult  the  title  Orders. 
note  I,  p.  735. 

740  Volumes. 


6464.  CORPORATIONS.  6465. 

nature  of  said  application-  not  less  than  thirty  nor  more  than  fifty 
days  preceding  the  said  twelfth  day  of  November,  iS97,  in  the  San 
Francisco  Examiner,  a  daily  newspaper  published  daily  in  the  said 
city  and  county  of  San  Francisco. 

Charles  W.  Slack,  Judge. 
Dated  at  San  Francisco,  \ht  fifteenth  day  of  September,  iS97. 

d.  Clerk's  Notice  of  Time  and  Place  of  Hearing  Petition. 

Form  No.  6464.' 

{Title  of  court  and  cause )  Notice  of  Application  for  Voluntary  Dis- 
as  in  Form  No.  6461.)    )  solution. 

Please  take  notice  that  the  said  corporation,  the  Stabot  Carriage 
Company,  formed  under  and  by  virtue  of  the  laws  of  the  state  of 
California,  did  on  the  first  day  of  September,  iS97,  persent  to  the 
Honorable  Superior  Court  of  the  city  and  county  of  San  Francisco 
its  petition  wherein  it  prayed  for  a  voluntary  dissolution  and 
that  the  said  Superior  Court  of  the  city  and  county  of  San  Fran- 
cisco has  fixed  Friday,  the  twelfth  day  of  Noi>ember,  iS97,  at  ten  o'clock 
in  the /(3r(f noon,  or  as  soon  thereafter  as  counsel  can  be  heard,  and 
the  court-room  of  the  said  Superior  Court  in  the  new  City  Hall  in  the 
city  and  county  of  San  Francisco  as  the  time  and  place  when  and 
where  the  said  application  will  be  heard.  In  witness  whereof,  I  have 
hereunto  set  my  hand  and  affixed  my  seal  of  the  said  Superior  Court 
this  eleventh  day  of  November,  \W7. 

(seal)  Calvin  Clark,  Clerk. 

Oliver  Ellsworth^  Attorney  for  Petitioners. 

e.  Objections  by  Creditor. 

Form  No.  6465.' 

(^Title  of  court  and  cause  )    Objections  to  Application  for  Voluntary 
as  in  Form  No.  6^61.    )  Dissolution. 

Now  comes  Philip  Albrecht,  a  creditor  of  the  said  corporation,  the 
said  Stabot  Carriage  Company,  and  files  his  objection  to  the  applica- 
tion of  the  said  company  heretofore  filed  herein  asking  for  a  volun- 
tary dissolution,  because  he  says  that  all  the  claims  and  demands 
against  the  said  corporation,  the  said  Stabot  Carriage  Company,  have 
not  been  satisfied  and  discharged,  and  particularly  a  claim  of  him  the 
said  creditor,  the  said  Philip  Albrecht,  against  the  said  corporation 
for  the  purchase  price  of  certain  goods  sold  and  delivered  by  him  the 
s,3.\d  Philip  Albrecht  to  the  said  corporation,  which  has  not  been  satis- 
fied and  discharged,  which  said  claim  is  for  certain  goods,  to  wit, 
five  thousand  wheels  of  the  value  of  five  thousand  dollars,  which  said 
sum  the  said  corporation  agreed  to  pay  the  said  Albrecht  as  purchase 

1.  California.  —  Code  Civ.  Proc,  §  2.  California. — Code  Civ.  Proc.,  § 
1230.  See  also  list  of  statutes  cited  1231.  See  also  list  of  statutes  cited 
supra,  note  i,  p.  735.  supra,  note  I,  p.  735. 

For  the  formal  parts  of  notices,  gener- 
ally, consult  the  title  Notices. 

741  Volume  5. 


6466.  CORPORATIONS.  6466. 

price  of  said  wheels  and  which  said  sum  is  now  due  and  unpaid. 
Wherefore  the  said  Philip  Albrecht  respectfully  prays  that  the  said 
application  for  a  voluntary  dissolution  of  the  said  corporation  may 
be  by  the  court  denied. 

Philip  Albrecht, 

By  his  attorney,  Daniel  Webster. 
Dated  at  San  Francisco^  tht  fourth  day  of  October,  iS97. 
(  Verification,  y- 

f.  Petition  of  Minority  Stockholders  and  Creditors  to  Dismiss 
Application. 

Form  No.  6466.* 

Supreme  Court  —  Cortland  County. 
In  the  matter  of  the  application  for  the^ 
Voluntary  Dissolution  of  V 

The  Hitchcock  Manufacturing  Co.        J 
To  the  Supreme  Court  of  the  State  oi New  York: 

The  petition  of  William  Martin  and  Duane  E.  Call,  The  Second 
National  Bank  of  Cortland,  German  American  Bank  of  Buffalo,  New 
York,  and  C.  Coles  Dusenbury,  William  C.  Bond  and  Louis  Dusenbury, 
respectfully  shows  and  alleges  that  said  Hitchcock  Manufacturing 
Company  is  a  domestic  corporation,  created  and  organized  under  the 
laws  of  the  state  of  New  York,  and  doing  business  therein  other 
than  an  insurance  and  moneyed  corporation.  That  the  name  of  said 
corporation  is  as  aforesaid,  Hitchcock  Manufacturing  Company,  and 
that  said  corporation  had  prior  to  the  thirteenth  day  oi  July,\2>95, 
been  located  arfd  doing  business  as  such  in  the  village  of  Cortland, 
county  of  Cortlajid  and  state  of  New  York. 

That  on  the  thirteenth  day  oi  July,  i895,  upon  the  petition  of  Caleb 
B.  Hitchcock,  Carroll  C  Hitchcockzxv^  Fred S.  Bennett,  all  of  the  direc- 
tors of  said  Hitchcock  Manufacturing  Company,  verified  on  the  twelfth 
day  oi  July,  i895,  and  upon  the  schedule  and  affidavit  attached  thereto 
verified  on  the  same  day,  and  upon  notice  to  the  attorney-general, 
an  order  to  show  cause  why  said  corporation,  the  Hitchcock  Manufac- 
turing Company,  should  not  be  dissolved,  returnable  at  Norwich  on  the 
tenth  day  oi  December,  iS95,  was  made  by  Hon.  Gerrit  A.  Forbes,  jus- 
tice of  the  Supreme  Court,  and  entered  in  Cortland  county  clerk's 
office  in  Cortland,  New  York,  on  \hQ  fifteenth  day  of  July,  \W5. 

That  on  said  thirteenth  day  oi  July,  iS95,  upon  the  same  petition, 
affidavit,  schedule  and  notice,  an  order  was  also  made  by  Hon.  Gerrit 
A.  Forbes,  justice. of  the  Supreme  Court,  restraining  and  enjoining  the 

1.  Consult  the  title  Verifications.  ray  Hill  Bank,  g  N.  Y.  App.  Div.  546. 

2.  This  i>etition  is  copied  fxma.  the  rec-  Petition  most  show  that  the  dissolu- 
ordin  Matter  of  Hitchcock  Mfg.  Co.,  i  tion  will  benefit  the  stockholders.  Mat- 
N.  Y.  App.  Div.  164.  For  the  formal  ter  of  Pyrolusite  Manganese  Co.,  29 
parts  of  petitions  of  this  character,  gen-  Hun  (N.  Y.)  429. 

erally,  see  the  title  Petitions.  The  statute  must  be  fally  complied  with 

Fetitionforvoluntary  dissolution  will  be     in  all  the  particulars  of  various  defects 
entertained  on  due  notice,  even  though     pointed    out.     Matter    of    Dubois,    15 
a  bank  is  in  the  possession  of  the  super-     How.  Pr.  (N.  Y.  Supreme  Ct.)  7. 
intendent  of  banking.     Matter  of  Mur- 

742  Volume  5: 


6466.  CORPORATIONS.  6466. 

Hitchcock  Manufacturing  Company  from  exercising  its  corporate  func- 
tions, and  restraining  and  enjoining  the  creditors  of  said  Hitchcock 
Manufacturing  Company  from  bringing  any  action  against  said  Hitch- 
cock Manufacturing  Company  ox  taking  any  further  proceedings  in  any 
action  theretofore  begun,  and  appointing ydtw<fi  Devine  oi  Syracuse, 
New  York,  and  Caleb  B.  Hitchcock  of  Cortland,  Ne^v  York,  temporary 
receivers  of  all  the  property,  goods,  chattels  and  effects  of  said 
corporation,  which  said  order  was  also  entered  in  Cortland  county 
clerk's  office  on  Xht  fifteenth  day  oi  July,  i895. 

That  said  temporary  receivers  immediately  thereafter  qualified  as 
such,  and  entered  upon  the  discharge  of  their  duties,  and  are  now 
acting  as  such  temporary  receivers  of  said  Hitchcock  Manufacturing 
Company. 

That  on  the  third  day  oi  July,  iS95,  an  action  was  begun  in  the 
Supreme  Court  by  service  of  a  summons  and  complaint  upon  said 
Hitchcock  Manufacturing  Company  by  your  petitioners  William 
Martin  and  Duane  E.  Call,  upon  four  promissory  notes  made  by  said 
Hitchcock  Manufacturing  Company,  in  all  to  the  amount  of  eight  hun- 
dred and  eighty-five  dollars  and  fifty-six  cents.  That  your  petitioners 
William  Martin  and  Duane  E.  Call  were  copartners,  doing  business 
as  such,  under  the  firm  name  and  style  of  Martin  cr*  Call,  and  having 
their  office  and  principal  place  of  business  as  such  copartners  in  the 
village  of  Cortland,  county  of  Cortland  and  State  of  New  York. 

That  your  petitioner  The  Second  National  Bank  of  Cortland  is  a 
domestic  corporation,  to  wit:  "A  national  bank,  duly  chartered  and 
organized  according  to  law,  and  under  and  by  virtue  of  the  laws  of 
the  United  States,  and  under  and  by  virtue  of  an  act  of  congress 
approved  February  25,  1865,  and  an  act  of  congress  approved  June 
3,  1864,  under  the  name  and  style  of  The  Second  National  Bank  of 
Cortland,"  and  that  said  petitioner  is  doing  business  as  such  bank 
under  said  name  at  Cortland  village,  Ne-iv  York. 

That  on  the  twelfth  day  ol  July,  i2>95,  an  action  was  begun  in  the 
Supreme  Court  by  service  of  summons  and  complaint  upon  said 
Hitchcock  Manufacturing  Company  by  said  The  Second  National  Bank 
of  Cortland,  upon  several  promissory  notes  of  the  said  Hitchcock 
Manufacturing  Company,  amounting  in  all  to  seven  thousand  two  hun- 
dred and  twenty-nine  dollars  and  ninety-six  cents. 

That  your  petitioner  the  German  American  Bank  of  Buffalo,  New 
York  is  a  domestic  corporation,  to  wit:  "  A  state  bank  duly  chartered 
and  organized  according  to  law,  and  under  and  by  virtue  of  the  laws 
of  the  state  of  New  York,  under  the  name  and  style  of  The  German 
American  Bank  of  Buffalo,  New  York,"  and  that  said  petitioners  are 
doing  business  as  such  bank,  under  said  name,  at  the  city  of  Buffalo, 
county  of  Erie,  New  York.  That  on  the  twelfth  day  oi  June,  iS9S, 
two  actions  were  begun  in  the  Supreme  Court  by  service  of  summons 
and  complaint  upon  said  Hitchcock  Manufacturing  Company  by  said 
German  American  Bank  of  Buffalo,  New  York,  upon  two  promissory 
notes,  amounting  in  all  to  six  hundred  dollars.  That  on  or  about  the 
first  day  oi  July,  iS95,  a  stipulation  was  given  said  Hitchcock  Manu- 
facturing Company,  the  defendant  in  said  actions,  extending  their 
time  to  answer  twenty  days. 

748  Volume  5. 


6467.  CORPORATIONS,  6467. 

That  your  petitioners,  C.  Coles  Dusenbury,  William  M.  Bond  and 
Louis  Dusenbury  are  copartners,  doing  business  as  such  under  the 
firm  name  and  style  of  Dusenbury  c?'  Bond,  at  No.  S3  Leonard  street 
in  the  city  oi  New  York.  That  on  the  third  day  oi  July,  i895,  an 
action  was  begun  in  the  Supreme  Court  by  service  of  summons  and 
complaint  upon  said  Hitchcock  Manufacturing  Company  by  said  peti- 
tioners, C.  Coles  Dusenbury,  William  M.  Bond  and  Louis  Dusenbury, 
upon  an  account  for  goods,  wares  and  merchandise  sold  and  delivered 
to  said  Hitchcock  Manufacturing  Company  and  upon  several  promissory 
notes  made  by  said  Hitchcock  Manufacturing  Company,  amounting  in 
all  to  seiien  hundred  and  sixty-two  dollars  and  sixteen  cents. 

Your  petitioners  further  allege  that  no  other  steps  or  proceedings 
have  been  taken  in  any  of  said  actions  other  than  as  aforesaid  and 
that  there  is  justly  due  and  owing  from  ssad  Hitchcock  Manufacturing 
Company  to  each  of  said  petitioners  the  several  amounts  hereinbefore 
set  forth,  and  that  there  are  no  counter-claims  or  offsets  to  them, 
and  that  said  Hitchcock  Manufacturing  Company  has  no  defense  to 
either  of  said  actions. 

Wherefore,  your  petitioners  ask  and  pray  for  a  rule  or  order  of  this 
court  vacating  and  setting  aside  the  order  made  herein  on  the 
thirteenth  day  oi  July,  1 895,  and  entered  in  Cortland  county  clerk's 
office  on  the  fifteenth  day  of  July,  iS95,  appointing  James  Devine  and 
Caleb  B.  Hitchcock  temporary  receivers  of  said  Hitchcock  Manufac- 
turing Company,  and  enjoining  and  restraining  the  creditors  of  said 
Hitchcock  Manufacturing  Company  from  beginning  any  action  against 
said  company  or  taking  any  further  proceedings  in  actions  theretofore 
begun,  and  for  such  other  or  further  order  or  relief  as  shall  be  just, 
with  costs  of  this  motion. 

Dated  Cortland,  New  York,  the  eighth  day  of  November,  i89S. 

Wm.  Martin, 
German  American  Bank  of  Buffalo, 
per  James  Dougherty. 
Dusenbury  6^  Bond, 

per  James  Dougherty. 
Hector  Cowan, 

President  Second  National  Bank. 

( Verification^ 

g.  Decree.' 
Form  No.  6467.' 


In  the  matter  of  the  application ' 
of  the  His  dale  Dry  Goods  Com- 
pany for  the  Dissolution  of  its 
Charter. 


In  the  Court  of  Common  Pleas, 
No.  1,  of  the  County  of  Alle- 
gheny, of  the  December  Term, 
1 897.     No.  102. 


And  now,  to  wit,  on  this  eighth  day  of  December,  a,  d.  \W7,  it  ap- 
pearing that,  according  to  the  order  of  this  court,    notice  of  the 

1.  Consult  the  title  Verifications.  3.  Pennsylvania. —  Bright.   Pur.  Dig. 

2.  For  the  formal    parts  of    decrees,     (1894),  p.  426,  §  115,  et  seq.     See  also 
generally,  consult  the  title  Decrees.  list  of    statutes  cited    supra,    note    i, 

P-  735. 
744  Volume  5. 


6468.  CORPORATIONS.  6468. 

application  by  petition  of  the  Hisdale  Dry  Goods  Company  for  disso- 
lution, and  that  said  application  would  be  granted  on  the  fifth  day 
of  November,  i897,  unless  exceptions  thereto  should  be  filed  on  or 
before  that  day,  was  published  once  a  week  for  three  weeks,  accord- 
ing to  law,  and  the  rules  of  court,  as  appears  by  affidavits  filed  and 
the  certificates  of  the  auditor-general,  state  treasurer,  and  the 
attorney-general  having  been  filed  in  this  case,  showing  that  all  taxes 
due  the  commonwealth  of  Pennsylvanix  have  been  paid  into  the  state 
treasury  by  said  corporation,  it  is  now  ordered  and  decreed  that  the 
accounts  of  the  directors  of  said  corporation,  filed  with  the  petition 
aforesaid,  be  approved  and  confirmed  absolutely,  and  that  said  cor- 
poration be  and  it  is  hereby  dissolved,  and  all  and  singular  its  powers, 
franchises,  privileges  and  faculties  are  hereby  extinguished  and  de- 
termined forever.  Provided,  that  this  decree  shall  not  go  into  effect 
until  a  certified  copy  thereof  be  filed  and  recorded  in  the  office  of 
the  secretary  of  commonwealth. 


3.  Proceedings  After  Dissolution. 

a.  By  or  on  Behalf  of  Corporation.' 

(1)  By  Receiver. 

complaint  of  receiver  to  obtain  property  of  insolvent 
corporation. 

Form  No.  6468.* 

Supreme  Court —  Washington  County. 

Frederick  I.  Baker,  as  receiver  ^ 
of  the  Fort  Ann  Woolen  Com- 
pany, plaintiff,  \^ 
against 

Louis   Emerson    and  James   A. 
Emerson,  defendants. 
The  above  named  plaintiff,   suing  as  receiver  of  the   Fort  Ann 

Woolen  Company,   by  leave  of  the  court   respectfully    shows,  upon 

information  and  belief, 

I.  That  on  or  about  the  twelfth  day  of  September,  iS93,  in  an  action 

1.  Proceedings  by  and  aigainst  corpora-  shown  that  the  corporation  was  insol- 
tions,  generally,  see  supra,  note  i,  vent  and  could  not  pay  its  debts  in  due 
p.  527.  course  of  its  business,  and  that  the  de- 

2.  This  complaint  is  copied  from  the  fendants  had  received  an  advantage 
record  in  the  case  of  Baker  v.  Emerson,  and  that  the  company  had  meant  that 
4  N.  Y.  App.  Div.  348.  The  proceed-  they  should  receive  an  advantage,  which 
ing  was  by  a  receiver  to  obtain  property  constituted  an  intent  to  make  an  undue 
of  an  insolvent  corporation.  The  ap-  preference  by  the  corporation  in  favor 
pellate  division  reversed  the  judgment  of  a  creditor. 

of  the  supreme  court  in  favor  of  the  For  formal  pcurts  of  complaints,  gener- 
defendant,  dismissing  plaintiff's  com-  ally,  consult  the  title  Complaints,  vol. 
plaint,  the  court   holding   that  it  was     4,  p.  1019. 

745  Volume  5. 


6468.  CORPORATIONS.  6468. 

of  sequestration  pending  in  the  Supreme  Court  of  the  state  of  New 
York.,  wherein  the  Merchants'  National  Bank  of  Whitehall  was  the 
plaintiff,  and  the  above  named  the  Fort  Ann  Woolen  Company.,  a 
domestic  corporation  of  the  state  of  New  York,  was  the  defendant, 
this  plaintiff  was,  in  and  by  final  judgment,  duly  made  and  en- 
tered in  the  said  action,  appointed  a  permanent  receiver  of  the  said  the 
Fort  Ann  Woolen  Company,  and  thereupon  duly  qualified  and  entered 
upon  the  discharge  of  his  duties  as  such  receiver. 

II.  That,  on  or  about  the  twenty-ninth  day  olMay,  iS93,  and  for 
some  time  prior  thereto,  the  above  named  the  Fort  Ann  Woolen  Com- 
pany was  insolvent,  and  unable  to  meet  its  liabilities  as  the  same 
became  due  and  payable;  that  at  the  date  aforesaid  the  assets  of  said 
company  according  to  prices  at  sales  thereof  did  not  exceed  in  value 
and  amount  the  sum  of  seventeen  thousand  dollars,  or  thereabouts, 
while  the  liabilities  of  the  said  company  then  amounted  to  the  sum  of 
fifty  thousand  dollars  and  upwards. 

III.  That  at  the  date  last  above  mentioned  and  for  several  years 
prior  thereto,  the  said  company  was  engaged  in  the  manufacture  of 
woolen  goods,  its  general  office  and  place  of  business  being  located  at 
Fort  Ann,  Washington  county,  New  York,  and  that  among  the  cus- 
tomers of  said  company  was  the  firm  of  Hull  d^  Co.,  of  Poughkeepsie, 
New  York,  of  which  firm  the  defendants  are  said  to   be   partners. 

That  during  the  months  oi  April  and  May,  i893,  said  company  sold 
and  delivered  to  said  firm  of  Hull  dr  Co.,  at  Poughkeepsie,  New  York, 
goods  amounting  to  eight  thousand  nine  hundred  and  seventy-seven  do\- 
lars  and  seventy-one  cents,  or  thereabouts,  and  that  on  the  twenty-ninth 
day  of  May,  iS93,  the  said  firm  oi  Hull  &=  Co.  was  indebted  to  said 
Fort  Ann  Woolen  Company,  upon  account  thereof,  in  the  sum  of  four 
thousand  nine  hundred  and  fifty-seven  dollars  and  seventy-one  cents,  or 
thereabouts. 

IV.  That  at  the  date  last  above  mentioned  and  prior  thereto  vari- 
ous creditors  of  said  Fort  Ann  Woolen  Company,  comprising  banks  and 
individuals,  held  and  owned  promissory  notes  of  said  company 
amounting  in  the  aggregate  to  fifty  thousand  dollars  or  thereabouts, 
and  upon  said  last  mentioned  date  certain  of  said  promissory  notes 
amounting  in  the  aggregate  to  twelve  thousand  dollars  and  upwards, 
past  due,  unpaid  and  lying  under  protest,  were  held  and  owned  by 
the  First  National  Bank  of  Glens  Falls,  the  Central  National  Bank  of 
Troy,  and  other  creditors. 

V.  That  on  or  about  the  date  last  above  mentioned,  JohnM.  Barnett 
was  the  president  and  treasurer  of  said  Woolen  Company  and  Volney  A. 
Richmond  was  its  secretary.  That  at  or  prior  to  the  said  date,  said 
banks  above  mentioned  declined  and  refused  to  renew  said  notes,  or 
extend  the  time  for  the  payment  thereof,  and  threatened  legal  proceed- 
ings against  said  company,  unless  the  same  were  promptly  paid.  That 
said  firm  of  Hull  6^  Co.  and  these  defendants  were  informed  thereof 
and  had  notice  and  knowledge  of  the  financial  condition  of  said  com- 
pany at  said  date.     That  on  the  second  d^d^y  oi  June,  1 855;  attachments 

.  were  issued  against  said  company,  and  on  the.  fifth  day  oi  June,  iS93, 
the  same  were  levied  and  said  company  suspended  business. 

VI.  That  the  defendants  Louis  Emerson  and  /atnes  Emerson  are  now, 

746  Volume  5. 


6468.  CORPORATIONS.  6468. 

and  were  during  several  years  last  past,  copartners  doing  business 
under  their  firm  name  oi  Efnerson  <^  Co.,  private  bankers  at  War- 
rensburgh,  Warren  county.  New  York.  That  on  or  about  the  second 
di3.y  oi  February,  1 895,  the  defendants  discounted  for  said  ^(>r/ ^«« 
Woo/en  Company  its  promissory  note,  dated  that  day,Jor  the  sum  of 
three  thousand  dollars,  payable /(Wr  months  from  date;  that  said  note 
matured  on  X.\\&  fifth  day  oi  June,  \Z93. 

VII.  That  on  or  about  said  twenty-ninth  day  of  May,  i893,  said 
John  M.  Barnett  and  Volney  A.  Richmond,  the  president  and  secretary 
of  )Said  Fort  Ann  Woolen  Company,  for  and  in  behalf  of  said  corpora- 
tion, made  the  draft  or  bill  of  exchange  of  said  company  in  writing, 
dated  on  that  day,  directed  to  the  said  firm  oi  Hull  cr  Co.,  requiring 
them  to  pay  to  the  order  of  the  defendants  three  thousand  and  seventy- 
five  dollars  on  \.\i&  first  day  oi  November,  iS93,  and  delivered  the  same  to 
defendants  and  thereupon  credit  said  firm  of  J/ulldr  Co.,  upon  account 
of  goods  theretofore  sold  and  delivered  as  hereinbefore  mentioned, 
with  the  sum  of  three  thousand  and  seventy-five  dollars;  that  the  interest 
upon  said  draft  or  bill  of  exchange,  from  the  date  it  was  drawn  until 
the  date  of  maturity,  November  1,  thereafter,  amounted  to  seventy-five 
dollars.  That,  thereupon,  said  draft  or  bill  of  exchange  was  duly 
presented  to  said  Hull  cr"  Co.  for  acceptance,  and  was  accepted,  and 
said  Fort  Ann  Woolen  Company  debited  the  amount  thereof  to  said 
Hull  &"  Co.  upon  their  account  with  said  Fort  Ann  Woolen  Co.,  for 
goods  sold  and  delivered  as  hereinbefore  set  forth. 

VIII.  That  said  draft  or  bill  of  exchange,  or  the  proceeds  thereof, 
was  received  and  accepted  by  the  said  defendants  in  payment  and 
satisfaction  of  said  promissory  note  of  three  thousand  dollars,  matur- 
ing on  the  fifth  day  oi  June  thereafter,  and  thereupon  said  note  was 
canceled;  that  said  draft  or  bill  of  exchange  was  paid  at  maturity  by 
said  firm  of  Hull  &>  Co. 

IX.  That  the  above  mentioned  transactions  of  the  twenty-ninth  day 
of  May,  iS93,  or  thereabouts,  were  had,  and  that  said  draft  or  bill  of 
exchange  was  made  and  accepted,  and  the  same,  or  the  proceeds 
thereof,  transferred  to  said  defendants,  and  said  note  paid  in  con- 
templation of  the  insolvency  of  said  Fort  Ann  Woolen  Company,  and 
in  violation  of  the  statute  in  such  case  made  and  provided;  and  that 
the  transactions  above  mentioned  and  described  constituted  an 
unlawful  transfer  or  assignment,  in  contemplation  of  the  insolvency 
of  said  corporation,  to  the  defendants,  and  that  such  transfer  or 
assignment  was  void. 

X.  That  prior  to  this  action  plaintiff,  as  receiver  aforesaid, 
demanded  payment  from  the  defendants  of  said  sum  of  three  thou- 
sand dollars,  and  that  the  same  be  refunded  and  restored  to  the  plain- 
tiff as  assets  of  said  corporation  for  the  benefit  of  its  creditors,  but 
that  the  defendants  have  neglected  to  comply  with  such  demand. 

Wherefore  plaintiff  demands  judgment  against  the  defendants  for 
the  sum  of  three  thousand  dollars,  besides  interest  thereon  from  the 
twenty-ninth  day  oi  May,  i89<?,  besides  the  costs  of  this  action;  and 
for  such  other  or  different  relief  as  may  be  right. 

Potter  (St*  Lillie,  Plaintiff's  Attorneys. 
747  Volume  5. 


6469.  CORPORATIONS.  6470. 

(2)  For  Mandamus.^ 

Form  No.  6469.* 

To  the  Honorable  the  Judges  of  the  Supreme  Court  of  the  Common- 
wealth of  Pennsylvania^  Middle  District: 

The  Commonwealth  of  Pennsylvania  on  relation  of  The  Alliance  Pe- 
troleum and  Coal  Company,  a  corporation,  respectfully  represents: 

That  on  the  twenty-eighth  day  of  February,  iS65,  J.  J.  Allen  and 
four  others  associated  themselves  to  form  a  corporation  under  the 
act  oi  July  18,  i863,  for  incorporating  mechanical  manufacturing,  min- 
ing and  quarrying  companies,  and  by  their  agreement  it  was  provided 
that  their  principal  office  should  be  in  Philadelphia;  that  having  com- 
plied with  the  provisions  of  the  law,  the  governor  incorporated  them 
by  letters  patent  on  the  twenty-third  day  of  March,  i86-5,  by  the  name 
of  The  Alliance  Petroleum  and  Coal  Compatiy ;  that  on  the  twenty- seventh 
day  of  February,  1S66,  they  applied  to  the  Court  0/  Common  Pleas  of 
Philadelphia  to  be  dissolved,  and  that  court  decreed,  on  the  ninth  day 
oi  April,  1S66,  that  the  corporation  "be  hereby  dissolved."  That  the 
said  Alliance  Petroleum  and  Coal  Company  further  set  forth  that  they 
had  transmitted  to  Eli  Slifer,  secretary  of  the  commonwealth,  a  cer- 
tified copy  of  said  decree  with  the  request  that  it  be  filed  in  his  office 
according  to  the  provisions  of  the  act  of  assembly,  and  that  he  refused 
to  permit  the  same  to  be  filed. 

The  petitioner  showing  the  premises,  and  that  he  is  without  further 
adequate  and  specific  remedy  at  law,  therefore  prays  that  an  alterna- 
tive writ  of  mandamus  may  be  issued  directed  to  the  said  Eli  Slifer, 
the  said  secretary  of  the  said  commonwealth,  requiring  him  the  said 
secretary  to  receive  and  file  the  decree  above  set  forth  or  that  a  rule 
on  the  said  secretary  may  be  granted  requiring  him  to  show  cause 
why  the  mandamus  should  not  be  issued  against  him  for  the  purposes 
aforesaid,  and  your  petitioner  will  ever  pray,  etc. 

Daniel  Webster,  Attorney-General, 

Attorney  for  Petitioner. 

(  Verification,  y 

(3)  To  Revive  Suit  against  Debtor.* 

Form  No.  6470.* 

1.  For  forms  relating  to  mandamus  6.  This  petition  is  based  on  the  facts  in 
proceedings,  generally,  consult  the  title  McCoy  v.  Farmer,  65  Mo.  244,  in  which 
Mandamus.  case  it  was  held  that  the  supreme  court 

2.  This  petition  was  based  on  the  facts  in  would  not  review  the  action  of  the  trial 
Com.  V.  Slifer,  53  Pa.  St.  71.  Peremp-  court  in  overruling  a  motion  to  dismiss 
tory  mandamus  was  awarded  directed  on  the  ground  that  the  charter  of  the 
to  the  secretary  of  the  commonwealth,  plaintiff  corporation   had  expired    and 

For  the  formal  parts  of  petitions  of  this  in  permitting  a  substitution  of  parties 

character  consult  the  title  Petitio.ns.  and  a  revival  of  the  suit,  unless  these 

3.  Consult  the  title  Verifications.  were  assigned  as  errors  in  a  motion  for 

4.  For  Forms  relating  to  reviving  of  a  new  trial  and  that  the  debts  due  a 
suits,  generally,  consult  the  title  Re-  moneyed  corporation  had  not  become 
vivoR  and  Abatement.  extinct  upon  its  dissolution, 

748  Volume  5. 


6471.  CORPORATIONS.  6471. 

John  P.  McCoy  and  {tiames  of  other s),^\z:\Xims^  ^Vf^^c27''co^nt'^^ 

William  Farmer  and  (names  of  others),  I  o^     ^u      «^      -r 

defendants.  ^  ^o  the  May   Term, 

Plaintiffs  state  that  hitherto,  to  wit,  on  the  first  ddij  ol  May,  1^71, 
suit  was  commenced  in  this  Circuit  Court  by  the  Independence  Fire  and 
Marine  Mutual  Insurance  Company,  a  corporation  organized  under  the 
laws  of  the  state  of  Missouri,  on  a  note  executed  to  it  by  the  defend- 
ants due  four  months  after  date,  and  dated  January  1,  iS61,  for  ninety- 
six  dollars  and  seventy-three  cents.  That  defendants  appeared  to  the 
action  and  filed  their  answer,  subsequently  to  which  time,  November, 
1 875,  the  charter  of  the  said  company,  by  the  terms  of  the  act  creating 
it,  expired,  at  which  time  the  present  plaintiffs  were  elected  directors 
of  said  corporation  at  the  last  meeting  held  for  that  purpose  by  the 
said  company,  and  that  no  other  directors  were  elected  at  any  time 
subsequently. 

Wherefore,  plaintiffs  pray  that  they,  being  the  last  board  of  di- 
rectors, should  be  permitted  to  prosecute  the  same  as  trustees  for  the 
benefit  of  all  persons  interested. 

Oliver  Ellsworth, 

Attorney  for  Plaintiflfs. 

(Verification.Y 

(4)  For  Writ  of  Prohibition.  2 
Form  No.  6  4  7  i .» 

In  the  Supreme  Court  of  the  State  of  California. 

Theodore  Havemeyer  and  (naming  the  others), " 

petitioners, 

against 

The  Superior  Court  for  the  City  and  County 

of    San    Francisco,    Department    No.   6, 

William  T.  Wallace,  Judge. 

To  the  Honorable  the  Judges  of  the  Supreme  Court  of  the  state  of 

California: 

I.  Your  petitioners  respectfully  represent,  that  in  the  month  of 

November,  \Z88,  the  people  of  the  state  of  California,  on  the  relation 

of  the  attorney-general,  commenced  an  action  in  the  Superior  Court 

of   the   city   and  county    of    San    Francisco   against    the   American 

Sugar  Refinery  Company,  a  corporation    organized  under  the    laws 

of  the  state  of  California.     That   the  object  of  such  action  was  to 

have  declared  forfeited  the  charter  of  said  company.     That  said  cor- 

1.  Consult  the  title  Verifications.  emptorj' writof  prohibition  was  issued, 

2.  For  forms  relating  to  writ  of  pro-  the  court  holding  that  when  a  trading 
hibition,  generally,  consult  the  title  corporation  ceased  to  exist,  its  property 
Prohibition,  Writ  of.  should  be  used  to  pay  its  debts  and 

3.  This  petition  for  a  writ  of  prohibi-  that  only  a  creditor  or  stockholder  can 
tion  was  based  on  the  facts  in  Have-  ask  for  the  appointment  of  a  receiver  to 
meyer    v.    Superior   Ct.,  84    Cal.    327,  take  charge  of  the  corporate  property. 


Petition  for  Writ  of 
Prohibition. 


in   which   case   an   absolute   and   per- 


749  '  Volume  5. 


6471.  CORPORATIONS.  6471. 

poration  appeared  and  answered  to  the  complaint,  and  after  trial  had, 
the  judgment  of  said  Superior  Court  was  pronounced  declaring  the 
forfeiture  and  imposing  upon  the  corporation  defendant  a  fine  oi  five 
^/lousand do\\a.rs,  and  costs  of  suit.  That  said  judgment  was  rendered 
on  the  eighth  day  oi  January,  i890,  and  on  the  same  day,  at  the 
instance  of  the  attorneys  representing  the  state,  a  rule  was  issued 
and  served  requiring  the  said  corporation  and  its  attorneys  to  show 
cause,  on  the  fe/ith  day  of  January,  why  a  receiver  should  not  be 
appointed  to  take  charge  of  the  estate  and  effects  of  the  said  defend- 
ant corporation,  and  to  distribute  the  same  according  to  law,  or  to 
preserve  the  same  pending  an  appeal  herein,  if  such  appeal  be  taken 
herein,  on  the  ground  that  said  defendant  corporation  has  been  dis- 
solved and  has  forfeited  its  corporate  rights.  That  on  said  eighth 
day  oi  January,  the  corporation  duly  appeared  and  the  hearing 
was  continued  until  the  twentieth  day  oi  January  of  the  same  year. 
That  in  the  meantime,  on  the  eighteenth  day  oi  January,  iS90,  the 
corporation  duly  served  and  filed  its  notice  of  appeal  to  this  court 
from  the  judgment  against  it,  and  at  the  same  time  filed  in  due  form 
a  bond  in  the  penal  sum  of  twelve  thousand  dollars  to  stay  proceed- 
ings on  said  judgment.  That  the  motion  for  a  receiver  came  on  to 
be  heard,  and  the  judge  of  the  said  Superior  Court  held  the  matter 
under  advisement  until  the  seventeenth  day  of  February,  i890,  on 
which  day  he  made  an  order  appointing  a  receiver,  in  which,  among 
other  things,  the  receiver  was  directed  to  take  charge  of  all  the  prop- 
erty, real,  personal  and  mixed,  of  the  said  defendant,  to  hold  the 
same,  and  to  dispose  of  it  under  the  direction  of  the  court,  upon 
the  filing  of  a  bond,  which  was  to  be  approved  by  the  said  judge. 
That,  later  in  the  same  day,  the  said  receiver  presented  his  bond  for 
approval,  and  it  was  duly  approved. 

2.  That  ever  since  the  twenty-first  day  of  March,  iS89,  your  peti- 
tioners have  been  the  owners  in  fee  simple  in  their  own  right  of  the 
several  tracts  and  parcels  of  land  in  San  Francisco  (^Here  was  set 
Jorth  specific  description  of  the  land  and  buildings^',  that  ever  since  said 
date  they  have  been  carrying  on  in  said  buildings  the  business  of 
refining  sugars  for  sale  in  the  markets  of  California  and  elsewhere; 
and  they,  also,  have  offices,  furniture,  books,  and  other  personal 
property  used  by  them  in  and  about  said  business;  that  they  do  not 
use,  hold  or  possess  said  property,  or  any  part  thereof,  in  trust,  for 
the  use  or  benefit  of  the  American  Sugar  Refitiery  Coiftpany,  the 
defendant  in  the  action  referred  to,  or  any  of  its  directors,  trustees, 
creditors  or  stockholders,  but  solely  for  themselves,  and  for  their 
own  exclusive  use  and  benefit,  and  have  ever  since  said  thirty-first 
day  oi  March,  iSS9,  been  in  the  quiet  and  peaceable  possession  of 
the  same,  claiming  title  thereto  and  the  exclusive  ownership  thereof; 
that  since  September,  iS89,  Henry  C.  Mott  has  been  the  general  agent 
and  attorney  in  fact  of  the  petitioners,  in  actual  charge  and  custody 
of  all  of  said  property,  and  duly  authorized  to  conduct  said  business. 

3.  That  the  said  receiver  appointed  by  the  said  Superior  Court 
made  various  attempts  to  take  possession  of  the  property  and 
premises  of  your  petitioners,  but  that  he  has  in  fact  failed  to  so 
obtain  possession,  and  never  did  have,  and  has  not  now,  possession 

750  Volume  5. 


647 1 .  CORPORA  TIONS.  647 1 . 

of  the  property,  or  any  part  thereof,  heretofore  belonging  to  the 
American  Sugar  Refinery  Company,  and  which  is  now  claimed  by  the 
petitioners  to  belong  to  them.  But  that  the  said  receiver,  notwith- 
standing these  repeated  failures  to  obtain  possession  of  the  said 
property,  and  your  petitioners'  constant  refusal  of  and  resistance  to 
his  demands,  is  threatening  to  cause  the  arrest  of  such  employees  of 
your  petitioners  as  have  charge  of  the  premises,  that  is  to  say,  the 
agent  and  the  superintendent  of  the  works,  for  contempt  of  the  said 
Superior  Court  in  resisting  his  demand.  That  great  damage  would 
result  from  the  possession  of  said  property  by  the  receiver  and  the 
consequent  stoppage  of  the  works. 

4.  Your  petitioners  further  represent  that  they  have  through  their 
agent,  Henry  C.  Mott,  presented  the  foregoing  facts  to  the  Superior 
Court,  and  called  its  attention  to  the  excess  of  jurisdiction  by  it 
committed  in  making  said  order,  and  in  directing  the  said  receiver 
to  enter  upon  and  take  possession  and  control  of  their  said  property, 
and  that  they  have  requested  said  court  to  modify  its  said  order  so 
as  to  direct  him  to  bring  a  proper  action  for  the  recovery  of  said 
property  instead  of  taking  possession  without  action,  which  request 
said  Superior  Court  has  denied. 

5.  Your  petitioners  further  represent  that  the  said  order,  so  far  as 
it  authorizes  the  receiver  to  take  the  property  now  in  their  posses- 
sion and  claimed  by  them,  exceeds  the  power  and  jurisdiction  of  the 
said  Superior  Court  and  is  in  violation  of  their  rights;  that  they  are 
not  parties  to  said  action  of  the  people  against  said  American  Sugar 
Refinery  Company,  nor  did  they  make  any  appearance  or  participate 
in  any  respect  in  said  action. 

6.  Your  petitioners  further  represent  that  after  said  judgment 
against  the  said  American  Sugar  Refinery  Company  was  entered,  said 
company,  on  the  eighteenth  day  of  January,  i890,  took  and  perfected 
an  appeal  therefrom  to  this  court  and  duly  filed  an  undertaking 
sufficient  to  stay  execution  thereof. 

7.  Your  petitioners  further  represent,  that  they  have  no  plain, 
speedy  or  adequate  remedy  against  the  said  proceedings  of  the  said 
Superior  Court  in  ordinary  course  of  law. 

Wherefore  plaintiffs  ask  that  a  writ  of  prohibition  herein  may  be 
issued  to  said  Superior  Court  in  the  city  and  county  of  San  Francisco, 
department  No.  6,  and  the  judge  thereof,  commanding  and  directing 
said  court,  and  said  judge,  and  also  its  said  receiver,  Patrick  Reddy, 
to  desist  and  refrain  from  further  proceedings  upon  the  order  afore- 
said appointing  its  said  receiver,  and  from  exercising  any  of  the 
powers  in  said  order  granted  with  regard  to  any  property  in  the 
possession  of  said  Havemeyer  cr*  Elder  through  their  agents  or 
employees,  and  especially  with  said  sugar  refinery,  and  from  interfer- 
ing with  or  disturbing  the  possession  and  control  of  the  said  Have- 
meyer ^  Elder  of  the  said  sugar  refinery,  or  any  other  property  by 
them  possessed  and  claimed  in  their  own  right. 

(^Signatures  of  Petitioners.') 

Oliver  Ellsworth  Attorney  for  Petitioners. 

{Verification.^- 

1.  Consult  the  title  Verifications. 

751  Volume  5. 


6472.  CORPORATIONS.  6472. 

(5)  Answer!  Alleging  Dissolution. 

supplemental  answer  of  debtor  alleging  expiration  of 
corporation. 

Form  No.  6472. 

(Precedent  in  Conwell  v.  Pattison,  28  Ind.  511.)' 

[State  of  Indiana^  )  In  the  Marion  Common  Pleas  Court,  February 

Marion  County.    \  Term,  i867. 

Abraham  B.  Conwell.,  President  of  the  ^ 

Bank  of  Connersville.  I  o        1  ^  1  -  a 

■'  '  >  Supplemental  Answer. 

T.  T.  N.  Pattison.  J 

Now  comes  the  defendant,  and  by  leave  of  court  files  his  supple- 
mental answer  to  the  complaint  of  plaintiff  herein,  and  for  answer 
thereto  says]^  that  s^ad  Bank  of  Connersville  \vdiS,  organized  under  the 
general  Banking  law  of  the  state  of  Indiana,  approved  May  28th,  1852; 
that  said  bank,  about  the  1st  oi  January,  i855,  failed  to  redeem  its 
notes  in  circulation,  and  went  into  liquidation,  and  that  in  May,  iS55, 
the  bonds  and  securities  deposited  with  the  Auditor  of  State  were 
sold  by  said  Auditor,  under  the  law,  in  JVew  York,  to  redeem  the 
circulation  of  said  bank,  and  said  bank  wholly  ceased  to  do  a  bank- 
ing business,  and  failed  and  refused  to  comply  with  the  requirements 
of  the  act  of  the  general  assembly  of  the  State  of  Indiana,  approved 
March  3d,  1855,  and  thereby  forfeited  its  corporate  power  to  do  a 
general  banking  business,  and  that  the  time  fixed  by  law  for  such 
banks  to  wind  up  their  business  expired  on  the  1st  oi  March,  i857,  at 

1.  For  formal  parts  of  answers,  gen-  poration  had  been  dissolved  and  ceased 
erally,  consult  the  title  Answers  in  to  exist  since  the  execution  of  the  note. 
Code  Pleading.  may  be  pleaded  in  abatement  but  not 

2.  Expiration  of  Charter.  —  Although  in  bar.  Hartsville  University  v.  Ham- 
the  Indiana  statute  allowed  a  corpora-  ilton,  34  Ind.  506.  In  that  case  de- 
tion  to  continue  for  three  years  after  fendant's  answer  contained  three  para- 
the  expiration  of  its  charter  in  order  to  graphs,  which  are  set  out  in  full  in  the 
collect  debts  due  it,  where  no  receiver  reported  case,  all  of  which  were  held  to 
had  been  appointed  and  no  extension  be  defective  on  demurrer  for  the  rea- 
of  time  for  collecting  such  debts  had  sons  stated  in  the  opinion.  The  first 
been  obtained,  they  are,  at  the  expira-  paragraph  of  the  answer  was  good, 
tion  of  said  three  years,  totally  extin-  with  the  exception  that  it  should  have 
guished.  Conwell  v.  Pattison,  28  Ind.  stated  that  the  corporation  came  to  an 
509.  In  this  action,  plaintiff,  as  presi-  end  by  some  legal  process.  The  third 
dent  of  a  bank,  brought  suit  against  paragraph  was  defective  for  failure  to 
the  defendant  as  indorser  of  tw^o  bills  properly  set  up  false  representations, 
of  exchange.  Demurrer  to  the  com-  False  representations  upon  which  fraud 
plaint  was  overruled  and  defendant  can  be  predicated  must  show  existing 
filed  his  answer  consisting  of  three  facts  or  facts  alleged  to  have  existed  at 
paragraphs.  The  court  held  that  the  the  times,  and  not  the  promises  to  be 
fourth  paragraph  of  the  answer  was  performed  in  the  future.  The  answer 
well  pleaded  and  contained  a  valid  might  be  readily  corrected  in  accord- 
defense,  and  therefore  judgment  for  ance  with  the  decision  and  used  as  a 
the  defendant  was  proper.  good  pleading. 

An  answer  in  a  suit  on  a  promissory  3.  The  words  in  [  ]  are  not  found  in 
note  executed  to  a  corporation,  brought  the  reported  case,  but  have  been  added 
by  the  payee  setting  up  that  the  cor-    to  make  the  form  complete. 

758  Volume  5. 


6473.  CORPORA  TIONS.  6473. 

which  time  said  bank  ceased,  to  exist  for  any  purpose  whatever,  and 
had  no  legal  capacity  thenceforward  to  sue  or  be  sued,  or  to  transact 
any  business  whatever,  having  forfeited  its  charter  and  all  powers 
under  it. 

And  the  defendant  says  that  AdraAam  B.  Conwell,'^s  president  of 
said  bank,  has  no  legal  capacity  whatever  to  maintain  this  suit,  in 
behalf  of,  or  for  the  use  of  said  bank,  for  the  reason  that,  at  the  time 
of  the  commencement  of  said  suit,  said  bank  had  no  legal  existence. 
Wherefore,  they  claim  judgment  for  costs. 

[Jeremiah  Mason^  Defendant's  Attorney. 

{yerification.y-\  ^ 

b.  Against  Corporation.^ 

(1)  Complaint.* 

by  lessor  against  dissolved  insolvent  corporation. 

Form  No.  6473.* 

State  of  Minnesota, )  District  Court, 

Hennepin  County,     j  Fourth  Judicial  District. 

Robert  C.  Kalkhoff  and  \^John  Doe\  plaintiffs, 

against 

B.  F.  Nelson,  as  receiver  'of  Thomas  H. 

Bishop  cr*  Co.,  defendant. 
The   plaintiffs   above   named   complain  of   the   defendant  above 
named  and  say: 

1.  That  t\\Q  fames  If.  Bishop  (Sr*  Company  was  on  the  first  day  of 
May,  iS91,  and  ever  since  has  been  a  corporation  organized  under 
the  laws  of  this  state.  • 

2.  That  on  that  day  it  and  the  plaintiff  duly  made  and  delivered^ 
each  to  the  other  a  lease  of  the  premises  described  in  the  complaint' 
in  this  action,  then  and  now  owned  by  the  plaintiff,  whereby  they 
leased  the  premises  to  the  corporation  for  the  term  of  ten  years,  for 
the  reserved  rent  of  six  thousand  dollars  for  each  year,  payable  five 
hundred  dollars  monthly  in  advance,  on  the  first  day  of  each  and  every 
month,  which  rent  the  corporation  covenanted  so  to  pay  to  them, 
and  to  surrender  up  the  premises  at  the  end  of  the  term  in  good 
repair.  That  said  corporation  went  into  possession  of  the  premises 
under  the  lease,  and  paid  the  monthly  instalments  of  rent  up  to  and 
including  the  first  day  oi  January,  iS94^,  but  the  fve  hundred  dolla.rs 

1.  Consult  the  title  Verifications.  5.  Liability  for  Bent.  —  By  the  disso- 
8.  The  words  in  [  ]  are  not  found  in  lution   the  corporation  became  unable 
the  reported  case,  but  have  been  added  to  pay  the  sums  due  on  a  lease  extend- 
to  make  the  form  complete.  ing  beyond  its  dissolution,  and  by  such 

3.  Proceedings  by  and  against  corpora-  breach  a  cause  of  action  immediately 
tions,  generally,  see  supra,  note  i,  accrued  to  the  lessors  for  the  recovery 
p.527.  of  all   damages,  present  and  prospec- 

4.  For  formal  parts  of  complaints,  tive.  Kalkhoff  v.  Nelson,  60  Minn, 
generally,  consult  the  title  Complaints,  284. 

vol.  4,  p.  1019.  • 

5  E.  of  F.  P.— 48.  753  Volume  5. 


6474.  CORPORATIONS.  6474. 

rent  due  and  payable  on  the  first  day  of  February^  i894,  has  never 
been  paid.  That  on  the  seventh  day  of  February^  \W\,  upon  the 
petition  of  stockholders,  the  corporation,  which  was  then  insolvent, 
was  dissolved  by  the  District  Court  of  Hennepin  county,  and  the 
respondent  appointed  receiver,  pursuant  to  the  provisions  of  Gen. 
Stat.  (1878),  c.  34,  tit.  8  (Gen.  Stat.  1894),  §§  3391-3436. 

3.  That  the  receiver  occupied  the  premises  from  said  date  until 
the  fifth  day  oi  June,  i8P4)  for  the  purpose  of  taking  possession  and 
disposing  of  the  merchandise  of  the  corporation  in  the  building 
thereon,  when  he  vacated  the  premises,  and  attempted  to  surrender 
them  to  the  plaintiffs,  who  refused  to  accept  the  attempted  sur- 
render, and  they  notified  the  receiver  that  they  would  not  do  so, 
but  that  if  he  insisted  on  abandoning  the  said  premises  they  would 
rent  them  for  the  best  prices  obtainable,  at  the  risk  of  the  lessee; 
and  that  if  such  prices  would  not  equal  what  they  were  entitled  to 
from  him  as  receiver  of  the  said  company  they  would  charge  the 
same  to  him  as  receiver  of  the  said  company.  That  the  plaintiffs 
were  in  fact  unable  to  rent  the  said  premises,  and  they  thereafter 
demanded  from  the  said  receiver  the  damages  sustained  by  reason 
of  the  breach  of  the  covenant  of  the  lessee  to  pay  rent  at  the  stipu- 
lated rate  for  the  full  term  of  the  lease;  for  damages  for  the  breach 
of  the  covenant  to  keep  the  premises  in  repair;  and  for  the  sum  of 
five  hundred  dollars,  being  rent  due  for  February,  iWJ^..  But  said 
receiver  and  defendant  herein  then  refuged  and  still  refuses  to  allow 
said  claims. 

Wherefore  plaintiff  asks  judgment  against  the  defendant: 

(i)  For  damages  sustained  by  reason  of  the  breach  of  the  covenant 
of  the  lessee  to  pay  rent  at  the  stipulated  rate  for  the  full  term  of 
the  lease; 

(2)  For  damages  for  a  breach  of  the  covenant  to  keep  the  premises 
in  repair; 

»  (3)  Y or  five  hundred  doWdiVs  rent  due  on  the  first  day  of  February^ 
i2>94,  and  for  their  costs. 

Oliver  Ellsworth,  Plaintiff's  Attorney. 

{Verification^^ 

(2)  Petition^  of  Creditors. ^ 
{a)  To  Declare  Trust  on  Corporate  Property. 

Form  No.  6474.* 

State  of  Kansas,      ) 
Wyandotte  County.  \ 
In  the  District  Court  in  and  for  the  county  and  state  aforesaid: 

1.  Consult  the  title  Verifications.  4.  This  petition  is  based  on  the  facts  in 

2.  For  the  formal  parts  of  petitions  or  Chicago,  etc.,  Bridge  Co.  v.  Fowler,  55 
complaints,  generally,  consult  the  title  Kan.  17,  in  which  case  the  court  held 
Complaints,  vol.  4,  p.  1019.  that  the  plaintiff  was  entitled  to  the  re- 

3.  Creditors'  suits,  for  forms  relating  to,  lief  prayed  for. 
generally,  consult  the  title  Creditors' 

Suits,  post,  p.  874. 

754  Volume  5. 


6474.  CORPORATIONS.  6474. 

The  Chicago  and  Atchison  Bridge  Company  ^  plaintiff,' 

against 
The  Anglo-American  Packing  and  Provision  Com-  >  Petition. 
pany,  George  Fowler^  Alexander  Muir  and  Arthur 
Booth,  defendants.  j    - 

The  plaintiff  states  that,  on  the  twenty-fifth  day  of  June,  iS85,  it 
obtained  a  judgment  against  the  defendant,  the  Anglo-American 
Packing  and  Provision  Company,  in  the  United  States  Circuit  Court,  for 
three  thousand  four  hundred  and  four  dollars  ^.wdi  seventy-four  ct.x\Xs\ 
that  an  execution  was  issued  upon  the  judgment  and  placed  in  the 
hands  of  the  United  States  marshal,  who,  on  the  sixth  Adiy  oi  December, 
i887,  levied  upon  certain  real  estate  in  Wyandotte  county  as  the 
property  of  the  said  Anglo-American  Company.  {Here  follows  a 
description  of  said  property^  That  said  Anglo-American  Packing  and 
Provision  Company  was  organized  on  the  nineteenth  day  of  November, 
iS7S,  with  a  capital  stock  of  one  hundred  and  fifty  thousand  6ol\a.rs,  of 
which  George  Fowler  was  appointed  the  general  manager,  which  posi- 
tion he  continued  to  occupy  until  shortly  before  the  rendition  of  the 
judgment  in  favor  of  plaintiff  herein  on  the  twenty-fifth  day  oi  June, 
I&85,  and  that,  as  such  manager,  he  had  knowledge  of  the  indebted- 
ness of  the  Anglo-American  Company  to  the  plaintiff  herein,  and  was 
fully  aware  that  the  latter  had  not  been  paid.  That,  on  the  thirtieth 
day  of  May,  iS85,  the  sdid  Anglo-American  Packing  and  Provision 
Company,  by  its  ofificers,  made  a  deed  of  conveyance  pretending  to 
convey  all  of  the  real  estate  in  question,  and  above  referred  to,  to 
Geo-ge  Foivler,  for  a  pretended  consideration  of  five  hundred  and 
eighty  thousand  doWdiVs;  that  the  conveyance  was  made  for  the  pur- 
pose of  defrauding  the  creditors  of  the  said  Anglo-American  Company, 
and  especially  the  plaintiff  herein.  That  there  was  no  consideration 
for  the  said  transfer,  and  that  the  pretended  indebtedness  of  the 
Anglo-American  Company  to  the  said  Fowler,  claimed  to  be  a  con- 
sideration, was  fraudulent  and  fictitious.  That,  at  the  time  of  the 
transfer,  the  Anglo-American  Company  had  no  other  property  or 
assets,  except  that  included  in  the  transfer,  and  that  the  said  George 
Fowler,  defendant  herein,  accepted  the  conveyance  for  the  purpose 
of  carrying  out  the  fraudulent  intent  and  purpose  of  placing  the 
property  beyond  the  reach  of  the  plaintiff  and  other  creditors.  That, 
shortly  after  the  deed  above  referred  was  made,  the  said  George 
Fowler  conveyed  the  property  in  question  to  Alexander  Muir  and 
Arthur  Booth,  defendants  herein,  which  conveyance  was  placed  on 
record  without  any  consideration  whatever  passing  from  the  said 
Muir  and  Booth  to  either  Fowler  or  the  said  Anglo-American  Company. 
That  the  plaintiff  herein  did  not  discover  the  above  fraudulent  trans- 
action until  within  twelve  months  before  the  bringing  of  this  action. 
That  the  said  Anglo-American  Company  is  insolvent,  and  that,  since 
the  transfer  of  its  property  and  assets,  as  is  above  set  forth,  it  has 
ceased  to  do  business,  and  has  practically  abandoned  its  corporate 
rights  and  privileges.  That  said  judgment  now  amounts  to,  inclu- 
ding interest  and  costs,  the  sum  oi  three  thousand  seven  hundred  and 
sixty-eight  dollars  and  sixty-four  cents. 

VVherefore  plaintiff  prays  judgment  that  the  property  should  be 

Too  Volume  5. 


6475.  CORPORATIONS.  6475. 

adjudged  to  be  that  of  the  Anglo-American  Packing  and  Provision 
Company^  and  that  George  Fowler,  defendant  herein,  be  held  to  have 
received  and  held  the  property  in  trust  for  the  benefit  of  the  cred- 
itors of  the  said  Anglo-American  Company,  and  that  the  same  shall  be 
subject  to  the  payment  of  said  judgment. 

And  plaintiff  further  prays  that,  in  case  the  property  cannot  be 
subjected  to  the  payment  of  said  judgment,  the  said  George  Fowler 
shall  be  required  to  account  for  the  full  value  of  the  property  up  to 
the  amount  necessary  to  pay  the  judgment,  and  that  the  plaintiff 
herein  have  judgment  against  him  for  the  sum  of  three  thousand  seven 
hundred  and  sixty-eight  dollars  and  sixty-four  cents,  and  for  its  costs. 

Oliver  Ellsworth,  Attorney  for  Plaintiff. 

{Verification.y- 

(Ji)  To  have  Sole  Remaining  Officer  Act  as  Trustee  for  Creditors. 


Form  No.  6475.' 

In  the  Circuit  Court  of  Missis- 
sippi County,  State  of  Mis- 
souri. 

To  the  October  Term,  i87(9. 


John  C.  Moore  and  (naming  others'), " 

plaintiffs, 

against 

George  W.  Whitcomb,  defendant 

The  plaintiffs  state  that,  by  an  act  of  the  legislature  of  the  state  of 
Missouri,  approved  February  19,  1866,  entitled  "An  Act  to  provide 
for  the  sale  of  certain  railroads  and  property  by  the  governor,  to 
foreclose  the  State's  lien  thereon,  and  to  secure  the  early  completion 
of  the  Southwest  Branch  Pacific,  the  Platte  Country,  the  St.  Louis  & 
Iron  Mountain,  and  the  Cairo  &  Fulton  railroads  of  Missouri,"  the 
charter  of  said  corporation  was  repealed,  and  the  government  of  the 
state  of  Missouri,  by  which  the  same  was  granted,  reclaimed,  seized 
and  took  possession  of  the  franchises  of  said  corporation,  and  to- 
gether with  the  road,  rolling  stock  and  other  property  of  said  cor- 
poration, on  the  first  day  of  October,  1S66,  sold  said  franchises, 
whereby  said  corporation,  on  the  day  and  year  aforesaid,  became  and 
is  dissolved. 

Plaintiffs  further  state  that  said  corporation  failed  to  complete  its 
railroad;  that  the  same  is  in  an  unfinished  condition  and  abandoned; 
that  the  same  has  become  dilapidated  and  gone  to  waste,  and  that 
the  corporation  has  not  kept  up  or  maintained  its  corporate  exist- 
ence, or  had  or  held  a  legal  election  for  officers  thereof  since  the 
election  held  in  iS^i;  and  that  the  present  defendant  is  the  only 
surviving  of  the  officers  of  said  dissolved  corporation  qualified  under 
the  constitution  and  laws  of  this  state  to  act  as  a  trustee  of  the 
property  thereof. 

Wherefore  plaintiffs  pray  that  the  defendant  may  be  directed  to 
act  as  a  trustee  of  the  property  of  said  company  for  all  persons  inter- 
ested in  the  distribution  of  the  assets  of  said  company. 

Oliver  Ellsworth,  Attorney  for  Plaintiffs. 

1.  Consult  the  title  Verifications.         suit  the  statute  relating  to  trustees  of 

2.  Tlus  petition  is  based  on  the  facts  in  dissolved  corporations,  Mo.  Rev.  Stat. 
Moore  v.  Whitcomb,  48  Mo.  543.     Con-    (1889),  §  2513. 

756  Volume  5. 


COSTS. 

By  W.  R.  Buckminster. 

I.  SECURITY  FOR  COSTS,  759.  ; 

1.    The  Affidavit,  759.  •      j 

a.  In  Support  of  Motion,    759.  » 

{i)  In  General,  759. 

(a)  Plaintiff  a  Nonresident,  759. 
aa.   Generally,  759. 
bb.    Where  Plaintiff  Removes  After  Com- 

mencement  of  Suit,  762. 
cc.   Foreign  Corporation,  762. 
(F)  Plaintiff  an  Administrator,  763. 
(<:)  Plaintiff  a  Trustee  of  an  Express  Trust,  764, 
(</)  Plaintiff  Unable  to  Pay  Costs,  765. 

(2)  Where  there  has  been  Delay  in  Applying  for  Se- 

curity, 766. 

(3)  For  Additional  Security,  767. 

b.  In  Opposition  to  Motion,  768. 

(i)  By  an  Administrator,  768, 

(2)  By  a  Poor  Plaintiff,  768. 
».    The  Motion,  769. 

a.  Notice  of  Motion,  769. 

^.   Order  to  Show  Cause,  770. 

c.  Motion,  770. 
8.    T'-^*?  Order,  771. 

a.    Generally,  771, 

^.  T^^r  6'/a>'  ^  Proceedings  Unless  Security  is  Filed,  772. 
c.    To  File  Security  or  Show  Cause,  ii^. 
4.   The  Bond,  Undertaking,  or  Recognizance,  11^. 

a.  In  Civil  Cases,  773. 

(i)  Generally,  773. 

{a)  In  Courts  of  Record,  773. 

(J>)  In  Justice' s  Court,  783. 
(2)  In  Election  Contest,  784. 

b.  In  Criminal  Cases,  785. 
8.  Notice  of  Security  Filed,  786. 

6,  Dismissal  for  Failure  to  Give  Security,  786. 

a.  Affidavit  in  Support  of  Motion,  786. 

b.  Notice  of  Motion,  787. 

c.  Motion,  787. 

d.  The  Order,  787. 

(i)  Dismissing  Suit,  788. 
{a)  Order  Nisi,  788. 
(J>)  Absolute  Order,  788. 

757  Volume  5. 


COSTS. 

(2)  Denying  Motion   Where   Security  is  Filed   After 
Expiration  of  Time,  789. 
II.  SUITS  IN  FORMA  PAUPERIS,  790. 

1.  Application  for  Leave  to  Sue,  790. 

a.  In  General,  790. 

b.  Where  Application  is  First  Made  on  Appeal^  795. 

c.  Upon  Claim  for  Tax  Seizure,  795. 
».   Order,  796. 

a.  Of  Reference,  796. 

b.  Granting  Leave  to  Sue,  796. 

c.  Denying  Leave  to  Sue,  797. 

d.  Annulling  Leave  to  Sue,  798. 

III.  TAXATION,  798. 

1.  In  General,  798. 

a.  Notice  of  Taxation,  798. 

b.  Proof  of  Right  to  Tax,  800. 

(i)  Certificate  of  Judge,  800. 
(2)  Affidavits,  800. 

(d)  By  Attorney,  of  Costs  and  Disbursements,  800. 

(l>)  By  Referee,  for  Reference  Fees,  803. 

(c)  By  Witness,  for  Travel  Fees,  803. 

c.  Objection  to  Items,  804. 

(i)  Notice  to  Clerk,  804. 
(2)  Certificate  of  Clerk,  805. 
8.  Relaxation,  805. 

a.  Where  Costs  have  been  Taxed  Without  Notice,  806. 

(i)  Notice,  806. 

(2)  Affidavit  for  Order  to  Show  Cause,  806. 

(3)  Order  to  Show  Cause,  807. 

b.  Where  Items  have  been  Allowed  or  Refused,  807. 

(i)  Affidavit,  807. 

(2)  Notice  of  Motion,  807. 

(3)  Motion,  808. 

{a)  In  General,  808. 

(p)  For  Relaxation  and  Forfeiture  of  Clerk^s 
Fees,  809. 

(4)  Order,  809. 

c.  Where  Items  have  been  Omitted,  810. 

(i)  Motion,  810, 
(2)  Order,  811. 

IV.  ADDITIONAL  ALLOWANCE,  811. 

1.  Notice  of  Motion,  8n. 

2.  Certificate  of  Referee,  812. 

3.  Affidavits,  813. 

a.  In  Support  of  Motion,  813. 

b.  In  Opposition  to  Motion,  813. 

4.  Order,  814. 

V.  Award  of  costs,  814. 

1.  Against  Parties,  814,  ' 

a.  Plaintiff,  814. 

b.  Defendant,  815. 

758  Volume  5. 


6476.  COSTS.  6476. 

•.  Against  Persons  not  Parties,  815. 

a.  Attorney,  815. 

(i)  For  Nonresident  Plaintiff,  815, 
(2)   Where    Scandalous    and    Impertinent    Matter   is 
Stricken  Out,  816. 

b.  Against  Executor,  Assignee  or  Trustee,  817. 

(i)  Certificate  of  Judge,  817. 
(2)  Order,  817. 

c.  Against  Person  Beneficially  Interested,  818. 

(i)  Affidavit  in  Support  of  Motion,  818. 

(2)  Notice  of  Motion,  819. 

(3)  Order,  819. 

d.  Motion  against  Security  for  Costs  of  Intervenors,  820. 

e.  Against  Prosecutor  in  Criminal  Action,  821. 

VI.  ACTION  TO  RECOVER  COSTS  AGAINST  PARTY  DISCONTINUING 

ACTION,  822. 
VII.  NOTICE  TO  RECOVER  ILLEGALLY  EXACTED  COSTS,  823. 

CROSS-REFERENCES. 

For  Forms  of  Bonds  and  Undertakings  for  Costs  on  Appeal,  see  the  title 
BONDS  AND  UNDERTAKINGS  ON  APPEAL  AND 
ERROR,  vol.  3,  p.  833. 

For  Forms  of  Bonds  for  Costs  upon  Removal  of  Actions  from  One  Court 
to  Another,  see  the  title  REMOVAL  OF  CAUSES. 

For  Forms  of  Executions  for  Costs,  see  the  title  EXECUTIONS. 

For  Forms  of  Orders  allowing  Amendment  upon  Payment  of  Costs,  see  the 
title  AMENDMENTS,  vol.  i,  pp.  751,  752. 

For  Forms  of  Stipulations  for  Costs  in  Admiralty,  see  the  title  ADMI- 
RALTY, vol.  1,  pp.  463-465. 

See  also  the  GENERAL  INDEX  to  this  work. 

For  matters  of  Substantive  Law  connected  with  the  subject  of  Costs,  see  the 
title  COSTS,  4  American  and  English  ENcvcLOPiEDiA  of 
Law  (2d  ed.),  p.  313. 

For  matters  of  Pleading  and  Practice  connected  with  the  subject  of  Costs, 
see  the  titles  COSTS,  5  Encvclop/Edia  of  Pleading  and 
Practice,  p.   100;  ADDITIONAL  ALLOWANCE,   i  En-' 

CVCLOPiEDIA  OF  PLEADING  AND  PRACTICE,  p.    211. 

I.  SECURITY  FOR  COSTS. 

1.  The  Affldavit.i 

a.  In  Support  of  Motion. 

(i)  In  General. 

(a)  Plaintiff  a  Nonresident. 

aa.  Generally. 

1.  For  forms  of  affidavits,  generally,  consult  the  title  Affidavits,  vol.  I,  p,  548. 

759  Volume  5. 


6476. 


COSTS. 


6476. 


Form  No.  6476.' 
Supreme  Court,  City  and  Connty  of  New  York. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 
City  and  County  of  New  York,  ss. 
Joseph  Story,  being  duly  sworn,  deposes  and  says: 

I.  That  he  is  the  attorney^  for  the  defendant  in  the  above  entitled 
action. 

II.  That  said  action  was  begun  on  the  fourth  day  of  May,  i897, 
by  the  service  of  a  summons  and  complaint  on  the  defendant  herein,  f 


1.  This  affidavit  is  drawn  under  N. 
Y.  Code  Civ.  Proc,  §  3268  (Birds.  Rev. 
Stat.  (1896),  p.  717,  g  63),  but  with 
change  of  caption  will  answer  for  the 
following  states,  to  wit: 

Alabama.  — Ci\.  Code  (1886),  §  2858. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§781. 

Arizona.  — Rev.  Stat.  (1887),  §  906. 

California.  —  Code  Civ.  Proc.  (1897), 
§  1036. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 

§675. 

Idaho.  — Key.  Stat.  (1887),  §  4915. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  1064,  par.  I. 

Indiana.  —  Horner's    Stat.    (1896),    § 

589- 

Kentucky.  —  Bullitt's  Civ.  Code  (1895), 
§616. 

Maryland.  —  Pub.  Gen.  Laws  (1888), 
art.  24,  §  9. 

Minnesota. — Stat.  (1894),  §  5518. 

Missouri.  —  Rev.  Stat.  (1889),  § 
2915. 

Montana.  —  Code  Civ.  Proc.  (1895),  § 
1871. 

Nebraska.  —  Comp.  Stat.  (1897),  § 
6208. 

7V>w(/rt.  — Gen.  Stat.  (1885),  §  3510. 

Newfersey.  —  Gen.  Stat.  (1895),  p. 
2593,  par.  348. 

New  Mexico.  —  Comp.  Laws  (1884),  § 

1843. 

North  Dakota.  —  Rev.   Codes  (1895), 

§  5597. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
6701. 

Oklahoma.  —  Stat.  (1893),  §  4833. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§  2062. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
247,  §  3. 

South  Carolina.  —  Rules  of  Practice 
for  Circuit  Courts,  Rule  X. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §  5207. 


Tennessee. — Code  (1896),  §§  4926, 
4927. 

Texas.  —  Rev.  Stat.  (1895),  art.  1440. 

Utah.  — Rev.    Stat.    (1898),  §§    3354, 

3355. 

Washington.  —  2  Hill's  Anno.  Stat. 
(1891),  §  844. 

Wisconsin,  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  2943. 

Wyoming.  —  Rev.  Stat.  (1887),  §  2688. 

In  all  states  except  New  York  it  is 
advisable  to  add  a  clause  to  the  affidavit 
which  shall  state  that  the  defendant 
has  a  good  defense  to  the  action,  specify 
it,  and  suggest  that  it  is  probable  that 
a  judgment  for  costs  will  be  recorded 
against  the  plaintiff  in  favor  of  the  de- 
fendant. This  should  certainly  be 
done  whenever  the  appeal  is  to  the 
discretion  of  the  court. 

Security  is  also  required  in  the  follow- 
ing states  before  the  clerk  will  issue 
process  in  favor  of  a  nonresident,  to 
wit: 

Connecticut.  —  Gen.  Stat.  (1888),  §  896. 

District  of  Columbia  —  Comp.  Stat. 
(1894),  p.  310,  §  12,  p.  446,  §  30. 

Kansas.  —  Gen.  Stat.  (1889),  §4682. 

Maine.  — Rev.  Stat.  (1883),  c.  81,  §  6. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
161,  §  24. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§  7296. 

Mississippi.  —  Anno.  Code  (1892),  § 
861. 

New  JIamps hire,  —  Pub.  Stat.  (1891), 
c.  218,  §  8. 

North  Carolina.  —  Code  Civ.  Proc. 
(1891),  §  209. 

Pennsylvania.  —  Bright.  Pur.  Dig. 
(1894),  p.  I131,  §  53. 

Vermont.  —  Stat.  (1894),  §§  920-925, 
1066.  These  sections  apply  to  residents 
as  well  as  nonresidents. 

2.  Who  may  Make.—  The  affidavit 
may  be  made  by  any  one  familiar  with 
the  facts.     2  Wait's  Prac.  573. 


760 


Volume  5. 


6477.  COSTS.  6477. 

That  no  answer  has  been  served  and  that  the  time  to  answer  has  not 
yet  expired.* 

III.  That  the  plaintiff  is  not,^  and  at  the  time  of  the  beginning  of 
this  action  was  not,  a  resident  of  the  state  of  JVew  York,  but  resides, 
and  then  resided,  in  the  state  oi  New  Jersey. 

IV.  That  no  previous  application  for  an  order  requiring  the  plain- 
tiff to  file  security  for  the  costs,  or  for  an  order  to  show  cause  why 
he  should  not  be  compelled  to  file  such  security,  has  been  made  in 
this  action. 

V.  That  the  reason  why  an  order  to  show  cause  why  the  plaintiff 
should  not  be  compelled  to  file  security  for  the  costs,  and  why  the 
defendant  should  not  have  such  other  further  relief  as  may  be 
necessary,  is  sought,  is  because  (^Here  state  the  reason  why  the  motion 
cannot  be  regularly  noticed  for  the  motion  day.^ 

Joseph  Story. 
Sworn  to  before  me  this  tenth  day  o{  May,  i897. 

Abraham  Kent, 
Notary  Public,  New  York  County. 

Form  No.  6477.* 

In  the  District  Court  in  and  iox  Folk  County,  Iowa. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

State  of  Iowa,  , 

'  ^  ss. 


} 


Polk  County. 

I,  Richard  Roe,  being  first  duly  sworn,  say  that  I  am  the  defendant 

in  this  action ;  that  I  have  a  good  defense  to  the  whole  of  this  action 

1.  Section  3268  of  the  New  York  an  order  to  show  cause,  paragraph  IV 
Code  (Birds.  Rev.  Stat.  (1896),  p.  717,  is  required  by  Hun's  Ct.  Rules  (1896), 
§  63)  requires  merely  that  the  plaintiff  No.  25,  and  paragraph  V  by  Hun's  Ct. 
should  have  been  a  nonresident  at  the  Rules  (1896),  No.  37.  These  para- 
commencement  of  the  action.  Ambler  graphs  of  the  form  are  drafted  to  meet 
V.  Ambler,  8  Abb.  Pr.  (N.  Y.  Supreme  the  New  York  rules  of  court.  They 
Ct.)  340.  But  it  is  usual  to  add  a  state-  are  not  necessary  except  in  states 
ment  as  to  present  residence.  where  the  court  rules  specially  require 

Security  for  costs  on  the  ground  of  such  clauses  in  affidavits   for  ex  parte 

nonresidence  is  not  required  unless  all  motions  and  applications  for  orders  to 

the  plaintiffs  are  nonresidents.     N.  Y.  show  cause. 

Code  Civ.  Proc.,  §  3270  (Birds.  Rev.  8.  /^7//a. —  Code  (1897),  §  3847.  The 
Stat.  (1896),  p.  718,  §  65);  Sims  v.  Bon-  affidavit  need  not  set  out  the  facts  Con- 
ner, 60  N.  Y.  Super.  Ct.  63.  stituting  the  defense,  but  only  that  the 

In  an  action   brought  by  a  nominal  party  filing  it  has  a  good  defense.     D. 

party  for  the  use  of  another  the  affidavit  M.  V.  Live  Stock  Ins.  Co.  v.  Hender- 

supporting  a  motion  for  security  must  son,  38  Iowa  446. 

deny  the  solvency  of  \.\\t.  cestui  qui  use  Delaware.  —  The    provisions    of    the 

and  his  residence   within  the  jurisdic-  Delaware  statute  are  substantially  the 

tion.     O'Connell  v.  Rea.  51  111.  306.  same,  save  that  the  affidavit  must  state 

2.  If  an  absolute  order  is  sought  by  that  the  defense  is  to  the  whole  action, 
notice  for  the  regular  motion  day,  an  and  must  state  the  nature  and  character 
order  to  show  cause  becomes  unneces-  of  the  defense.  Del.  Rev.  Stat.  (1893), 
sary  and  paragraphs  IV  and  V  maybe  p.  791,  §  8. 

omitted.     As  an  ex  parte  application  for 

761  Volume  5. 


6478.  .  COSTS.  6480. 

{or  to  a  certain  part  of  the  action,  stating  what  par t\  and  that  the  plain- 
tiff is  a  nonresident  of  this  state. 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  this_/?rj/ day  oi  July,  iS96. 

Abraham  Kent, 
Notary  Public,  Polk  County. 

Form  No.  6478.' 

State  of  Mississippi,  \  In  Chancery  Court, 
DeSoto  County.         \  October  Term,  a.  d.  i8P7. 
John  Doe     ) 

against       V  No.  SIS. 
Richard  Roe.  ) 

Personally  appeared  before  me,  the  undersigned,  a  justice  of  the 
peace  of  said  county,  John  Hancock,  clerk  of  the  Chancery  Court  of 
the  county  aforesaid,  who,  on  oath,  says:*  That  the  complainant  in 
the  above  styled  case  is  a  nonresident  of  the  state  of  Mississippi,  and 
has  not,  as  he  believes,  sufficient  property  in  said  state  out  of  which 
the  costs  can  be  made  if  adjudged  against  him.  • 

John  Hancock,  Clerk. 

Sworn  to  and  subscribed  before  me  this  the  sixth  day  of  October, 
A.  D,  iS^T*.  Abraham  Kent,  J.  P. 

bb.  Where  Plaintiff  Removes  After  Commencement  of  Suit. 

Form  No.  6479.* 

(Commencing  as  in  Form  No.  6J^76,  and  continuing  down  to  *.) 

III.  That  since  the  beginning  of  this  action  and  about  the  month 
of  March  last,  the  plaintiff  in  this  action  removed^  from  this  state  to 
the  state  of  JVew  Jersey,  with  the  intention  of  there  permanently 
residing.  That  he  has  ceased  to  be  a  resident  of  this  state  and  that 
he  is  not  within  the  jurisdiction  of  this  court,  but  resides  at  Newark 
in  the  state  of  New  Jersey. 

IV.  (Concluding  as  in  Form  No.  6^.76.^ 

cc.  Foreign  Corporation. 

Form  No.  6480.* 

(Commencing  as  in  Form  No.  6Jf.76,  and  continuing  down  to  *.) 

X.Mississippi.  —  Anno.    Code  (1892),  Iowa.  —  Code  (1897),  §  3849. 

%  862.  Massachusetts.  —  Pub.  Stat.   (1882),  c. 

2.  New  York.  —  ZoAe.  Civ.  Proc,    §  167,  §  30. 

3269  (Birds.  Rev.  Stat.  (1896),   p.    718,  Missouri.  —  Rev.      Stat.      (1889),     § 

§  64).  2916. 

Similar  provisions  exist  in  nearly  all  3.  Actual,  not   intended   removal  is 

the  states.     See  the  list  of  statutes  cited  meant.     Morton  v.  Domestic  Tel.  Co., 

supra,  note    i,    p..   760,   and    also    the  i  Abb.    N.  Cas.  (N.  Y.    Supreme   Ct.) 

statutes  following,  to  wit:  290. 

Alabama.  —  Civ.  Code  (1886),  §  2861.  4.  See   statutes  cited  supra,  note    i, 

Illinois. — Starr    &    C.    Anno.    Stat.  p.  760. 
(1896),  p.  1067,  par.  4. 

762  Volume  5. 


6481.  COSTS.  6481. 

III.  That  the  plaintiff  herein  is  a  foreign  corporation  incorporated 
under  the  laws  of  the  state  of  New  Jersey. 

IV.  (Concluding  as  in  Form  No.  6j^76.) 

(d)  Plaintiff  an  Administrator. 

Form  No.  6481.' 
Supreme  Court,  City  and  County  of  Ne7v  York. 
John  Doe,  as  administrator  of  the  estate ' 
of  Richard  Styles,  deceased,  plaintiff, 
against 
Richard  Roe,  defendant. 
City  and  County  of  New  York,  ss. 
Joseph  Story,  being  duly  sworn,  says: 

I.  That  he  is  the  attorney  for  the  defendant  in  this  action. 

II.  That  the  plaintiff  is  the  duly  appointed  administrator  of  the 
goods,  chattels  and  choses  in  action  of  Richard  Styles,  deceased, 
being  appointed  by  the  surrogate  of  Albany  county  on  the  third  day 
oi January,  xWJf.. 

III.  (Here  state  the  cause  of  action  and  the  present  condition  of  the 
same.') 

IV.  (^Here  state  costs  already  accrued  and  likely  to  accrue.) 

V.  Upon  information  and  belief  that  plaintiff's  intestate  left  no 
estate  and  that  said  letters  of  administration  were  taken  out  only  to 
prosecute  a  claim  for  damages  in  causing  his  death. 

VI.  That  the  complaint  herein,  a  copy  of  which  is  hereto  annexed 
and  made  a  part  of  this  affidavit,  is  made  only  on  information  and 
belief,  of  which  information  the  sources  are  not  given. 

VII.  Upon  information  and  belief  that  intestate's  death  was  caused 
by  his  own  negligence  and  that  the  sources  of  information  and 
belief  are  the  affidavits  of  Samuel  Short,  verified  on  the  third  day  of 
April,  \WJt,  and  of  William  West,  verified  on  the  fifth  day  ol  April, 
1894,  which  affidavits  are  herewith  submitted. ^ 

1,  New  York.  —  Code  Civ.  Proc,  §  cient  statements.  The  merits  of  the 
3271  (Birds.  Rev,  Stat.  (1896),  p.  718,  §  action  as  shown  in  the  complaint  are 
66).  alwaj's  to  be  considered  in  like  manner 

The    order    for   security    for    costs  as  if  the  plaintiff  had  applied  to  sue  in 

against   an    executor     must  be     upon  forma  pauperis,  and     if   a  prima  facie 

notice  or  by  order  to  show  cause.     An  cause  of  action  appears   in    the   com- 

^jr/ar/^ order  if  granted  will  be  vacated,  plaint   the  court  will   refuse  security. 

Swift  V.  Wheeler,  46   Hun  (N.  Y.)  580.  Rutherford  v.  Madrid,  77  Hun  (N.  Y.) 

The   same   rule    applies   to    an   order  545.     And  a  sworn  complaint  present- 

against  plaintiff  as  receiver.     Ridgway  \n^  prima  facie  a  good  cause  of  action  is 

V.  Symons,  25   Civ.  Proc.    Rep.  (N.  Y.  reason     for    refusing    application    for 

Supreme  Ct.)  23.  security.     Schmidt  v.  Eiseman,6  Misc. 

2.  Paragraphs  V,  VI  and  VII  are  Rep.  (N.  Y.  Brooklyn  City  Ct.)  264; 
adapted  from  the  facts  in  Caccavo  v.  Fessenden  v.  Blanchard,  14  Civ.  Proc. 
Rome,  etc.  R.  Co..  59  N.  Y.  Super.  Ct.  Rep.  (N.  Y.  Supreme  Ct.)  277,  48  Hun 
129,  in  which  it  was  held  a  proper  case  (N.  Y.)  350. 

was  made  out  for  the  exercise  of   the        A  statement  that  the  estate  has   no 
court's  discretion.  assets  except  the  claim  in  litigation  is 

But  personal  irresponsibility  and  in-  not  a  cause  requiring  security.  Ryan 
solvency  of  estate  alone  are  not  suf5-    v.  Potter,  2  McCarty  (N.  Y.)  33. 

763  Volume  5. 


6482.  COSTS.  6482. 

VIII.  Upon  information  and  belief  that  defendant,  in  case  he  is 
successful  in  this  action,  will  not  be  able  to  collect  out  of  decedent's 
estate  the  costs  herein.  That  the  sources  of  deponent's  information 
and  belief  are  {naming  theni). 

IX.  That  said  deponent  is  informed  and  verily  belives  that  this 
action  is  not  commenced  in  good  faith  by  said  plaintiff,  but  is  in  bad 
faith  and  improperly  begun  and  continued. i 

X.  That  said  deponent  is  informed  and  verily  believes  the  plain- 
tiff is  irresponsible  and  insolvent,  and  that  if  successful  in  this  action 
deponent  will  not  be  able  to  collect  from  the  plaintiff  the  costs  herein, 
and  that  the  sources  of  his  information  and  belief  are  (naming  them). 

(Signature  and  Jurat  as  in  Form  No.  61^16, ) 

{/)  Plaintiff  a  Trustee  of  an  Express  Trust. 

Form  No.  6482.' 
Supreme  Court,  C/Zy  and  County  of  New  York. 
John  Doe,  as  trustee  for  Jacob  Wirth 
and  Alfred  Case.,  plaintiff, 

against 
Richard  Roe,  defendant. 
City  and  County  of  New  York,  ss. 

Joseph  Story,  being  duly  sworn,  deposes  and  says: 

I.  That  he  is  the  attorney  for  the  defendant  in  this  action. 

II.  That  prior  to  the  commencement  of  this  action,  one  Lewis 
Case,  who  is  not  now  within  the  state,  claimed  to  have  a  cause  of 
action  to  recover  damages  against  the  defendant  for  a  tort  alleged 

1.  Where  security  is  required  under  Mason,  86  Hun  (N.  Y.)  500,  it  was  held 

section  3271  pf  the  New  York  Code  of  that  in  an  action  brought  by  a  receiver, 

Civil  Procedure  it  will  be  granted  only  administrator,    etc.,  the    plaintiff    will 

in  the  discretion  of  the  court.     Under  not  be  required  to  give  security  for  costs 

the  old  code,   in  Wilbur  v.  White,  56  unless  it  is  shown,  "in  addition  to  the 

How.   Pr.   (N.    Y.    Supreme    Ct.)  321,  fact  of  insolvency,"  that  the  action  was 

where  the  allegation  in  the  affidavit  was  brought  in  bad  faith  or  heedlessly  or 

"  that  there  are  not  funds  belonging  to  that    the   plaintiff   will    not    probably 

the  bankrupt's   estate   represented   by  succeed. 

him  sufficient  to  pay  said  costs  if  de-  2.  This  form  is  drawn  under  N.  Y. 
fendant  succeeded  in  the  action,"  it  Code  Civ.  Proc  ,  §  3271  (Birds.  Rev. 
was  held  that  the  allegation  was  not  Stat.  (1896),  p.  718),  §  66,  and  is  based 
sufficient  without  a  further  allegation  on  the  facts  in  Fish  v.  Wing,  i  Civ. 
of  bad  faith  or  mismanagement  in  the.  Proc.  Rep.  (N.  Y.  Supreme  Ct.)  231,  in 
•prosecution  of  the  action.  Under  the  which  case  it  was  held  that  a  plaintiff 
new  code,  however,  in  Tolman  v.  Syra-  suing  as  a  trustee  of  an  express  trust 
cuse,  etc.,  R.  Co.,  92  N.  Y.  353,  it  was  will  be  required  to  file  security  for  costs 
held  that  the  court  had  power  in  its  when  one  of  the  beneficiaries  is  a  non- 
discretion  to  require  security  from  an  resident  of  the  state,  and  the  other  is 
administratrix  although  the  affidavit  an  infant  whose  guardian  ad  litem  has 
contained  no  allegation  of  mismanage-  not  filed  such  security,  and  that  the 
ment  or  bad  faith.  But  if  the  allega-  former  rule  under  section  317  of  the 
tion  is  not  made,  other  reasons  must  be  Code  of  Procedure,  requiring  proof  of 
shown  for  the  exercise  of  the  discretion  bad  management  or  bad  faith  before 
of  the  court.  The  court  will  not  act  such  trustee  will  be  required  to  file 
merely  because  the  estate  is  insolvent,  security,  has  not  been  retained  in  the 
Fagan  v.  Strong,  19  Civ.  Proc.  Rep.  present  revision.  See  also  Swift  v. 
(N.  Y.  Supreme  Ct.)  88.     So  in  Hale  v.  Collins,  i  Den.  (N.  Y.)  659. 

764  Volume  5. 


6483.  COSTS.  6483. 

{Here  specify).  That  the  said  Lewis  Case,  still  prior  to  the  commence- 
ment of  this  action,  trahsferred  and  assigned  said  cause  of  action  to 
John  Doe,  the  plaintiff  herein,  in  trust,  however,  to  collect  it  and 
to  pay  over  the  sum  collected  to  one  Jacob  Wirth,  a  nonresident,  and 
to  Alfred  Case,  the  minor  son  of  said  Leivis  Case,  iai  certain  specified 
proportions. 

III.  That  by  virtue  of  said  assignment  ^z\6.  John  Doe  hxxngi,  this 
action  as  express  trustee  for  the  persons  above  mentioned. 

IV.  Upon  information  and  belief  that  the  plaintiff  is  insolvent  and 
that  if  the  defendant  shall  succeed  in  this  action  he  will  be  unable  to 
secure  payment  of  his  costs  from  said  plaintiff. 

V.  That  the  source  of  deponent's  information  as  to  those  portions 
of  this  affidavit  which  are  stated  to  be  made  on  information  and  belief 
is  investigation  which  deponent  has  personally  made  in  execution  of 
his  duties  as  attorney  for  the  defendant  in  this  cause. 

{Signature  and  jurat  as  in  Form  No.  6J!f.76. ) 

{d)  Plaintiff  Unable  to  Fay  Costs. 

Form  No.  6  4  8|3  . 

(Precedent  in  Hamilton  v.  Dunn,  22  111,  259.)* 
[In  the  Cook  County  Circuit  Court.^ 
James  Hamilton 

ats. 
Fatrick  Dunn. 
State  of  Illinois,  \        3 
County  of  Cook,  j      '-' 
Jafnes  Hamilton  personally  appears,  and  being  first  duly  sworn 

1.  Illinois.  —  Starr  &  C.  Anno.  Stat,  claimed  by  them  as  heirs,  «nd  where  it 
(1896),  p.  1067,  par.  4.  The  affidavit  in  appeared  from  the  report  of  the  referee 
this  case,  however,  was  defeated .  by  that  the  estate  was  amply  sufficient  to 
the  counter  affidavit  to  be  found  infra,  meet  all  charges,  it  was  held  error  for 
Form  No.  6488,  the  court  saying,  "  The  the  circuit  court  to  dismiss  the  case  on 
rule  upon  the  plaintiff  to  show  cause  motion  for  want  of  security  for  costs 
why  he  should  not  give  security  for  and  upon  proof  merely  that  the  plain- 
costs  was  properly  discharged  by  the  tiffs  possessed  no  other  property  sub- 
court  on  the  counter  affidavit  of  the  ject  to  execution.  The  proof  should 
plaintiff;  that  should  have  as  much  have  been  made  that  the  plaintiffs  were 
weight  with  the  court  as  the  defend-  likely  to  become  ultimately  liable  for 
ant's  affidavit.  Such  motions  in  such  costs.  Whitsett  z'.  Blumenthal,63  Mo. 
cases  are  not  regarded  in  a  very  favor-  479.  See  Knight  v.  Fisher,  15  Colo, 
able  light  by  courts,  the  object  being  177,  holding  that  the  affidavit  must  pre- 
most  generally  procrastination  and  de-  sent  a  case  which  appeals  to  the  dis- 
lay.  Slight  evidence  has  been  usually  cretion  of  the  court,  and  Starr  &  C. 
held  sufficient  to  discharge  such  rule."  Anno.  Stat.  111.  (1896),  p.   1067,  par.  4; 

Where   security  for  costs  is  sought  Mo.  Rev.  Stat.  (1889),  §  2916. 

because  the  plaintiff  would  be  unable  2.  The  proceedings  in  this  case  were 

to  pay  them  if  awarded  against  him,  actually  had  in  the  Cook  county  court 

the  rule  should  not  be  granted  unless  of  common  pleas. 

it  appears  that  there  is  probability  that  3.  The  words  enclosed  by  [  ]  will  not 

costs  will  be  so  awarded  against  the  be    found   in    the    reported    case,    but 

plaintiff.      Where   the    plaintiffs    were  have   been  added  to  render  the  form 

suing   to   recover  a  valuable  tract   of  complete, 
land  with  rents  and  profits,  which  was 

765  '    Volume  5. 


6484.  COSTS.  6485. 

deposes  and  says  that  he  is  the  defendant  in  the  above  entitled  suit; 
that  he  is  well  acquainted  with,  and  has,  for  some  months  past,  well 
known  the  said  Patrick  Dunn,  the  plaintiff  in  said  suit,  personally 
and  by  reputation.  That  the  said  Patrick  Dunn,  according  to  his 
own  statements  and  admissions  made  to  this  affiant  on  or  about  the 
first  day  of  December  last  past,  was,  and  according  to  the  best  of  his, 
this  affiant's,  knowledge,  information  and  belief,  still  is,  utterly  insol- 
vent, and  has  no  goods,  estate  or  effects  liable  to  execution,  wherefrom 
such  costs  or  any  part  thereof,  as  the  said  Patrick  Dunn  may  be  decreed 
or  adjudged  to  pay  in  the  above  entitled  cause,  can  be  made,  levied 
or  satisfied.  This  affiant  further  says  that  he  has,  or  he  is  informed 
by  his  counsel  and  verily  believes,  a  good,  full  and  sufficient  defense 
to  the  above  entitled  suit  on  the  merits  thereof,  and  that  his  pro- 
ceedings in  this  behalf  are  not  in  any  manner  interposed  or  intended 
to  delay  or  retard  the  trial  of  the  same.  This  affiant  therefore  prays 
that  a  rule  may  be  entered  in  the  above  entitled  cause,  requiring  the 
said  Patrick  Dunn,  within  such  time  as  the  court,  in  its  discretion, 
shall  see  fit,  to  file  good  and  sufficient  security  for  such  costs  as  may 
accrue  therein,  and  in  default  thereof,  that  said  suit  may  be  dis- 
missedj  according  to  the  form,  force  and  effect  of  the  statute  in  such 
case  made  and  provided. 

\(^Sig  nature  and  Jurat  as  in  Form  No.  6^76.^^^ 

Form  No.  6484.' 

{Commencing  as  in  Form  No.  6Jf78,  and  continuing  do7vn  to  *.)  That 
he  has  good  reason  to  believe,  and  does  believe,  that  the  complainant 
in  the  above  styled  case,  though  a  resident  of  said  state,  cannot  be 
made  to  pay  the  costs  of  the  said  suit  in  case  the  same  shall  be 
adjudged  against  him. 

{Signature  and  Jurat  as  in  Form  No.  GJIflS.') 

(2)  Where  there  has  been  Delay  in  Applying  for  Security. 

Form  No.  6485.' 

(  Title  of  court  and  cause,  and  venue  as  in  Form  No.  6Ji.76.') 
Richard  Roe,  being  duly  sworn,  deposes  and  says: 

I.  That  he  is  the  defendant  in  this  action. 

II.  That  he  is  not  personally  acquainted  with  the  plaintiff  and  had 

1.  The  matter  to  be  supplied  within  169;  Teal  v.  Yost,  16  Civ.  Proc.  Rep. 
[  ]  will  not  be  found  in  the  reported  (N.  Y.  Super.  Ct.)  367;  Schwartz  v. 
case.  Scott,  25  Civ.   Proc.    Rep.    (N.  Y.    Su- 

2.  Mississippi.  —  Anno.    Code  (1892),  preme  Ct.)  53. 

§862.  Indiana.  —  A  rule  of  court  provides 

3.  Security  for  costs  under  section  that  "motions  to  require  security  for 
3268  of  the  New  York  Code  (Birds.  Rev.  costs  must  be  made  at  the  first  calling 
Slat.  (1896),  p.  717,  5^  63)  can  be  required  of  the  docket,  unless  the  affidavit  upon 
only  if  there  is  due  diligence  in  applica-  which  the  motion  is  based  shows  that 
tion  therefor.  Such  application  should  the  plaintiff's  nonresidence  was  not 
be  made  before  answer,  and  any  subse-  known  to  the  defendant  or  his  attorney, 
quent  delay  must  be  excused  by  facts  and  that  it  is  made  as  soon  as  the  fact 
stated  in  the  affidavit.  Stevenson  v.  of  such  nonresidence  comes  to  his 
Nevv  York,  etc.,  R.  Co.,  49  Hun  (N.  Y.)  knowledge.     When  the  motion  is  sus- 

766  Volume  5. 


6486.  COSTS.  6486. 

no  knowledge  or  belief  that  said  plaintiff  was  a  nonresident  until  the 
snienteenth  day  of  May,'i2>97,  when  the  fact  that  at  the  commence- 
ment of  this  action  said  plaintiff  was  and  now  is  a  nonresident  was 
discovered  (or  became  knowft)  to  the  defendant. 

III.  That  (^Here  state  hmv  the  fact  became  known4o  him,  so  confirming 
his  previous  lack  of  knowledge. )  » 

(^Signature  and  Jurat  as  in  Form  No.  6J^76.') 

(3)  For  Additional  Security. 

Form  No.  6486.' 

(^Commencing  as  in  Form  No.  6^76,  and  continuing  down  to  f)  that 
{Here  state  what  has  happened  in  the  case  and  itemize  as  far  as  possible  the 
expenses  which  have  been  and  will  be  ificurred\  and  that  said  costs  and 
disbursements  will  greatly  exceed  the  sum  of  two  hundred  and  fifty 
dollars. 

III.  That  the  plaintiff  is  and  always  has  been  a  nonresident  of  the 
state  of  Neiu  York,  residing,  as  deponent  is  informed  and  believes,  in 
Jersey  City,  New  Jersey. 

IV.  That  on  iht  fourth  day  of  May,  iS97,  complying  with  the  de- 
mands of  the  defendant's  attorney  (^or  an  order  of  the  court  specifying 
//),  the  plaintiff's  attorney  filed  an  undertaking  for  the  defendant's 
costs  in  the  sum  of  two  hundred  and  fifty  dollars.  That  after  the 
costs  in  the  action  had  greatly  increased  and  threatened  still  further 
greatly  to  increase,  deponent  often  requested  said  attorney  for  the 
plaintiff  to  file  additional  security  for  costs  in  this  action,  but  this, 
said  attorney  has  neglected  and  refused  to  do. 

tained,  the  plaintiff  will  be  required  to  Illinois. — Starr  &  C.  Anno.  Stat, 
file  the  undertaking  for  costs  on  the  (1896),  p.  1067,  par.  4.  The  court  can- 
following  day."  Pancoast  z*.  Travelers'  not  require  additional  security  unless 
Ins.  Co.,  79  Ind.  174.  some  change  in   the  circumstances  of 

1.  Additional  security  for  costs  may  the  plaintiff  or  his  security  is  shown, 

be  required  "  at  any  time  after  the  al-  Ball  v.  Bruce,  27  111.  332. 

lowance  of  an  undertaking  for  costs"  ■    Iowa.  —  Code  (1897).  ^3850. 

upon  proof  "that  the  sum  specified  in  Kansas.  —  Gen.  Stat.  (1889),  §  4685. 

the  undertaking  is  insufficient."     N.  Y.  Kentucky. —  Bullitt's  Civ.  Code(i895), 

Code   Civ.    Proc,  J5  3276  (Birds.   Rev.  §  620. 

Stat.  (1896),  p.  719,  §  71).    The  language  Michigan.  —  How.  Anno.  Stat.  (1882), 

of  the  code,  however,  does  not  give  the  §  7299. 

right    to    require    additional    security  Minnesota.  —  Stat.  (1894),  §5518. 

where  the  plaintiff  has  paid  money  into  Missouri.  — Rev.  Stat.  (1889),  §  2915. 

court  instead  of  filing  an  undertaking.  Montana.  —  Code   Civ.    Proc.  (1895), 

Newhall  v.  Appleton,  57  N.  Y.  Super.  §  1871. 

Ct.  154.  Nebraska. —  Comp.  Stat.(l897),  §6211. 

Additional  security  for  costs  is  pro-  Nevada. — Gen.  Stat.  (1885),  §3510. 

vided  for  also  by  the  express  words  of  North  Dakota.  —  Rev.    Codes   (1895), 

the  statutes  in  the  following  states:  §  5601. 

Alabama.  —  Civ.  Code  (1886),  §2858;  (9-4/V.  —  Bates'   Anno.    Stat.  (1897),  § 

Peavey  v.  Burkett,  35  Ala.  141.  5343- 

Arkansas. — Sand.  &   H.  Dig.  (1894),  Tennessee. — Code  (1896),  §4927. 

§785-  Washington.  — 2,    Hill's  Anno.    Stat. 

California.  —  Code  Civ.   Proc.  (1897),  (1891),  §  844. 

§  1036.  Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 

Delaware.  —  Rev.  Stat.  (1893),  p.  792.  (1889),  §  2947. 

Idaho.  —  Rev.  Stat.  (1887),  S  49i5-  Wyoming.  —  Rev.  Stat.  (1887),  §  2690. 

767  Volume  5. 


6487.  COSTS.  6488. 

V.  That  Jlere  state  the  present  condition  of  the  action.) 

VI.  That  no  previous  application  for  an  order  requiring  plaintiff  to 
file  additional  security  has  been  made  in  this  action. 

(^Signature  and  Jurat  as  in  Form  No.  6476.) 

b.  In  Opposition  to  Motion. 

(1)  By  AN  Administrator. 

Form  No.  6487.' 

(  Tit/e  of  court  and  cause  as  in  Form  No.  648 1.) 
Jeremiah  Mason.,  being  duly  sworn,  deposes  and  says: 

I.  That  he  is  the  attorney  for  the  plaintiff  in  this  action. 

II.  That  on  tht  fourth  day  of  May,  iS97,  the  plaintiff  began  this 
action  by  the  service  of  a  summons  and  verified  complaint,  a  copy 
of  which  is  hereto  annexed  and  made  a  part  of  this  affidavit. 

III.  That  said  action  is  brought  for  the  benefit  oi  John  Kilbnan 
and  James  Killman,  the  next  of  kin  to  the  decedent,  who  reside  in 
the  state  of  Maine. 

IV.  That  said  next  of  kin  are  infants  of  the  respective  ages 
of  eight  diXidi  fourteen  years.  That  the  decedent,  their  father,  left  no 
estate  except  a  few  articles  of  personal  apparel  and  furniture  of 
small  value. 

V.  That  said  infants  are  utterly  unable  to  pay  into  court  two  hun- 
dred and  fifty  dollars  or  to  give  security  for  the  costs  of  this  action, 
and  that  if  required  so  to  do  they  would  be  unable  to  comply,  and  the 
action  would  be  discontinued. 

(Signature  and  Jurat  as  in  Form  No.  6476.) 

(2)  By  a  Poor  Plaintiff. 

Form  No.  6488. 
(Precedent  in  Hamilton  v.  Dunn,  22  111.  259.)' 
[In  the  Cook  County  Circuit  Court.  ^ 
Patrick  Dunn     ) 
against  v 

James  Hamilton.  ) 
State  oi  Illinois,  \       -14 
County  of  Cook.  P^'J 

1.  The  averments  in  this  affidavit  estate  of  the  decedent  was  less  than 
are  taken  from  the  opposing  affidavit  twenty-five  dollars,  and  that  she  had 
in  Fessenden  v.  Blanchard,  14  Civ.  been  thereupon  duly  appointed  admin- 
Proc.  Rep.  (N.  Y.  Supreme  Ct.)  279,  istratrix,  and  gave  bond,  etc.  The 
where  the  motion  for  security  was  de-  affidavit  in  this  latter  case  set  out  the 
nied.  In  Lyons  v.  Cahill,  12  Civ.  Proc.  facts  which  gave  rise  to  the  cause  of 
Rep.  (N.  Y.  Super.  Ct.'>  72,  the  motion  action  with  great  fullness, 
for  security  was  also  denied  upon  the  2.  This  affidavit  was  sufficient  to  de- 
affidavit  made  by  the  administratrix,  feat  the  defendant's  affidavit  in  support 
which  alleged  that  she  had  applied  to  of  the  motion  set  out  supra.  Form  No. 
the  surrogate  of  New  York  county  for  6483. 

letters  of  administration  and  in  her  pe-  3.  See  supra,  note  2,  p.  765. 

tition  had  alleged  that  the    personal  4.  See  supra,  note  3,  p.  765, 

768  Volume  5. 


6489.  COSTS.  6489. 

Patrick  Dunn  of  said  county,  being  duly  sworn,  deposes  and  says, 
that  he  is  a  mason  by  trade,  and  that  fames  Hamilton,  the  defendant 
in  this  suit,  is  justly  indebted  to  this  deponent  in  a  large  sum  of 
money,  to  wit:  the  sum  of  about  two  hundred  dollars,  for  work, 
lat^r  and  services  done  and  performed  by  this,  deponent  for  said 
Hamilton,  and  that  said  suit  herein  was  commenced  against  said 
Hamilton  to  recover  said  sum  of  money;  that  this  deponent  is  not 
insolvent,  although  a  poor  man,  and  that  if  said  Hamilton  would  pay 
this  deponent  what  is  justly  his  due,  he  could  pay  all  the  debts  he 
owes  in  the  world.  This  deponent  further  says,  that  he  does  not 
know  what  the  costs  of  the  court  in  this  case  may  be,  but  that 
if  they  do  not  amount  to  a  large  sum  of  money,  he  will  be  able  to 
pay  them  without  difficulty,  especially  if  said  Hamilton  pays  him  what 
is  now  justly  his  due.  This  deponent  further  saith,  that  he  is  now 
and  has  been  for  about  a  year  a  resident  of  the  city  of  Chicago,  and 
that  he  has  no  other  residence  whatever.  And  further  this  deponent 
saith  not. 

[(^Signature  and  Jurat  as  in  Form  No.  6J!f76.y\^ 

2.  The  Motion.2 

a.  Notice  of  Motion. 

Form  No.  6489. 

{Title  of  court  and  cause  as  in  Form  No.  6^.76.) 

Please  take  notice  that  upon  the  affidavit  of  Richard  Roe,  verified 
the  fifteenth  day  of  February,  i897,  a  copy  of  which  is  hereunto 
annexed,  and  upon  the  defendant's  notice  of  appearance  which  is 
herewith  served  upon  you,  the  undersigned  will  apply  to  this  court,  at 
a  special  term  thereof  to  be  held  at  the  County  Hourt-house  in  the 
city  of  Ne7c  York  on  the  twenty-fourth  day  of  February,  iS97,  at  ten 
o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel  can  be 
heard,  for  an  order  that  the  plaintiff  pay  into  this  court  the  sum  of 
two  hundred  and  fifty  dollars,  said  sum  to  be  applied  to  the  payment 
of  any  costs  which  may  be  awarded  against  him  in  this  action,  or  if 
he  so  elects  that  he  file  with  the  clerk  of  this  court  an  undertaking 
as  prescribed  in  and  by  section  3273  of  the  Code  of  Civil  Procedure, 
and  that  he  serve  written  notice  thereof  upon  the  defendant's  attor- 
ney, and  that  all  other  proceedings  on  the  part  of  the  plaintiff  be 
stayed  until  such  payment  or  filing  of  notice  thereof,  and  if  the 
undertaking  be  given,  until  the  allowance  of  such  undertaking;  and 
further  that  the  time  for  the  defendant  to  answer  be  extended  until 
twenty  days  after  notice  of  such  payment  into  court,  or  after  the 
allowance  of  such  undertaking;  and  for  such  further  relief  as  may  be 
just,  together  with  the  costs  of  this  motion. 

February  15,  iS97.  Joseph  Story, 

Attorney  for  Defendant, 
111  Broadway,  New  York  City. 

To  Jeremiah  Mason,  Esq., 

Attorney  for  Plaintiff. 

1.  See  j«/ra.  note  i,  p.  766.  2.  For  forms  of  motion,  generally, 

consult  the  title  Motions. 
5  E.  of  F.  P.—  49-  769  Volume  5. 


6490.  COSTS.  6493. 

b.  Order  to  Show  Cause. 
Form  No.  6490. 

At  a  Spea'a/ Term  of  the  Supreme  Court,  held  in  and  for  the  County 
of  Suffolk^  at  the  Couiity  Court-house  in  Htverhead,  in  said  County,  on 
the  fourth  day  of  October,  iS96. 

Present:  Hon.  John  Marshall,  Justice. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

Upon  reading  and  filing  the  afifidavit  oi  Joseph  Story,  verified  the 
third  day  of  October,  i897,  it  is  ordered  that  the  defendant  show  cause 
before  me  (or  at  a  special  term  of  this  court  to  be  held^  at  the  County 
Court-house  in  Riverhead  on  the  seventh  day  of  October,  iS97,  at  ten 
o'clock  in  the  forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard, 
why  he  should  not  be  required  to  give  security  for  costs  according  to 
the  statute,  and  why,  if  he  fails  to  give  such  security,  his  proceed- 
ings should  not  be  stayed,  and  why  the  plaintiff  should  not  have 
such  other  or  further  relief  as  may  seem  just,  with  the  costs  of  this 
motion. 

Enter:     /.  M.,  J.  S.  C. 
e.  Motion. 
Form  No.  6491.' 
In  the  District  Court  in  and  for  Rolh  County,  Iowa. 
John  Doe,  plaintiff,       \ 

against  V  Motion  for  Security  for  Costs. 

Richard  Roe,  defendant,  j 

The  defendant  moves  the  court  to  require  the  plaintiff  herein  to 
give  security  for  the  costs  of  the  above  entitled  action,  upon  the 
grounds  set  out  in  the  annexed  affidavit.^ 

Joseph  Story,  Attorney  for  Defendant. 

Form  No.  6492.* 

State  of  Rhode  Island  and  Prozndence  Plantations. 
Providence,  Sc.  Common  Pleas  Division 

of  Supreme  Court. 
John  Doe    ^ 
against       \  No.  21^. 
Richard  Roe.  J 

The  defendant  in  the  above  entitled  case  hereby  moves  that  the 
plaintiff  be  required  to  furnish  surety  for  costs. 

By  his  Attorney,  Joseph  Story. 

Form  No.  6493.* 

The  State  of  Texas,  \  Suit  pending  in  the  District  Court  of  Freestone 
County  oi  Freestone.  \  Connty,  October  Term,  a.  d.  i8P7. 

1.  Iowa.  —  Code  (1897),  §3847.  8.  Rhode  Island.  —  Gen.   Laws  (1896), 

2,  For  the  form  of  affidavit  see  supra,     c.  247,  §  3. 

Form  No.  6477.  4.   Texas.  —  Rev.    Stat.    (1895),    art. 

1440. 
770  Volume  5. 


6494.  COSTS.  6495. 

John  Doe,  plaintiff,      ) 

against  '     >  No.  S12. 

Richard  Roe,  defendant.  ) 

And  now  comes  John  Hancock,  clerk  of  the  District  Court  in  and  for 
Freestone  county,  Texas,  and  moves  the  court  to  require  the  plaintiff 
Irerein  to  give  a  good  and  sufficient  bond  in  the  above  styled  and 
numbered  cause. 

John  Hancpck,  Clerk. 

Form  No.  6494.' 
John  Doe 
against 
Richard  Roe. 

Now  comes  the  defendant,  by  Joseph  Story,  his  attorney,  this  twenty- 
first  day  of  April,  a.  d.  i8P7,  and  suggests  to  the  honorable  court  that 
the  plaintiff  herein  is  a  nonresident  of  the  state  of  Virginia,  and 
requires  and  moves  that  this  suit  be  dismissed  unless  within  sixty 
days  from  the  entry  of  this  suggestion  the  plaintiff  shall  be  proved 
to  be  a  resident  of  this  state  or  shall  file  security  for  costs  according 
to  the  statute. 

Joseph  Story. 

3.  The  Opder.2 
a.  Generally. 

Form  No.  6495. 

{Title  of  court  and  cause  as  in  Form  No.  6490.) 

Upon  reading  and  filing  the  affidavit  o(  Joseph  Story,  verified  the 
third  daiy  of  April,  iS97,  and  the  order  to  show  cause  granted  herein 
on  the  fi/th  day  of  April,  i897,  and  after  hearing  Joseph  Story,  of  coun- 
sel for  the  defendant,  and  Jeremiah  Mason,  of  counsel  for  the  plaintiff 
(or  and  after  reading  and  filing  affidavit  or  admission  of  due  service  of  a  copy 
of  the  order  to  show  cause  above  mentioned  and  no  one  appearing  in 
opposition);  Ordered, 

I.  That  within  twenty  days  the  plaintiff  deposit  with  the  clerk  of 
this  court  the  sum  of  two  hundred  and  fifty  dollars,  said  sum  to  be 
applied  to  the  payment  of  any  costs  which  may  be  awarded  to  the 
defendant  in  this  action,  or  if  he  so  elects  that  he  file  an  under- 
taking, as  is  prescribed  by  section  3273  of  the  Code  of  Civil  Proced- 
ure, with  one  sufficient  surety  for  the  payment  of  any  costs  which 
may  be  so  awarded,  and  further  that  the  plaintiff  serve  notice  upon 
the  defendant's  attorney  of  such  payment  into  court,  or  the  filing  of 
such  undertaking,  also  within  said  twenty  days. 

II.  That  until  such  payment  into  court  and  notice  thereof,  or  until 
the  allowance  of  such  undertaking,  all  proceedings  on  the  part  of  the 
plaintiff,  except  to  review  or  to  vacate  this  order,  be  stayed. 

III.  That  the  time  of  the  defendant  to  answer  be  extended  to 

1.    Virginia.  —  Code  (1887),  §  3539.  2.  For    forms   of   orders,    generally. 

West  Virginia.  —  Code  (1891),  c.  138,     consult  the  title  Orders. 

771  Volume  5. 


6496.  COSTS.  6496. 

twenty  days  after  the  notice  of  such  payment  or  the  allowance  of  such 
undertaking.^ 

IV,  That  the  plaintiff  pay  to  the  defendant  ten  dollars  costs  of 
this  motion. 

Enter,:     /.M.,].S.C. 

b.  Fop  Stay  of  Proceedings  Unless  Security  is  Filed. 

Form  No.  6496. 

(Precedent  in  National  Exch.  Bank  v.  Silliman,  4  Abb.  N.  Cas.  (N.  Y.  Supreme 

Ct.)  227.) 

[(  Title  of  court  and  cause  as  in  Form  No.  SJfdO^^ 
On  reading  and  filing  the  motion  papers  in  the  cause,  consisting  on 
the  part  of  the  defendants  of  the  printed  case  in  this  action,  on  which 
the  appeal  was  argued  in  the  court  of  appeals,  the  affidavits  of 
Robert  F.  Silliman  made  on  the  ^^day  of  May^  i876,  and  on  the  18tA 
day  of  At/gust,  iS76,  copies  of  two  affidavits  annexed  to  last  men- 
tioned affidavits,  called  schedule  A,  and  made  by  Henry  W.  Mosher 
and  John  S.  Fake^  affidavits  made  by  F.  J.  Parmenter  on  2d  day  of 
May  and  19th  day  of  August.,  iS76,  a  certified  copy  of  the  certificate 
of  association  of  the  Exchange  Bank  of  Lansingburgh,  and  the  notices 
of  motion;  and  on  the  part  of  the  plaintiff  affidavits  made  by  Alfred 
W.  Murray  and  Levi  Smith,  by  which  among  other  things  it  appears 
that  the  above  named  plaintiff  when  this  action  was  commenced  was 
a  corporation  under  the  name  of  the  National  Exchange  Bank  of 
Lansingburgh,  and  that  the  same  was  afterwards  duly  dissolved  and 
this  action  continued  by  the  plaintiff  in  the  name  of  the  original 
plaintiff.  And  after  hearing  Mr.  F.  J.  Parme7iter  of  counsel  for  the 
defendants,  and  Mr.  E.  L.  Fursman  and  Mr.  Esek  Cowen  of  counsel 
for  the  plaintiff,  and  after  due  deliberation  had;  Ordered  that  all 
further  proceedings  in  this  action  on  the  part  of  the  plaintiff  be  and 
the  same  are  hereby  stayed  unless  the  plaintiff  shall  within  twenty 
days  after  the  service  of  a  copy  of  this  order  on  the  attorneys  of 
record  for  the  plaintiff,  give  and  file  an  undertaking  or  bond  with  at 
least  tivo  sufficient  sureties,  conditioned  for  the  payment  to  the 
defendants  herein  of  all  costs  and  disbursements  which  shall  be 
recovered  and  allowed  to  them  in  this  action,  which  said  sureties,  if 
accepted  to,  shall  justify  in  the  same  manner  as  prescribed  in  cases 
of  arrest  and  bail,  under  chapter  i,  of  title  7  of  the  Code  of  Pro- 
cedure. Upon  the  giving  of  such  security  for  costs,  this  action  may 
continue  in  the  name  of  the  above  entitled  plaintiff. 

[Enter:     /.  W.,  J.  S.  C] 

1.  A  stay  of  proceedings  in  an  order  by  an  ex  parte  order  and  by  the  same 

to  furnish  security  for  costs  does  not  order  which  requires  the  filing  of  securi- 

extend  the  defendant's  time  to  answer,  ty.     No  affidavit  of  merits  is  required. 

Sniffen  v.  Peck,  6  Civ.   Proc.  Rep.  (N.  Worthington    v.    Warner,    19  Abb.   N. 

Y.   City  Ct.)  188;  White   v.    Smith,    16  Cas.  (N.  Y.  City  Ct.)  266. 
Abb.  Pr.  (N.  Y.  Supreme  Ct.)  loq,  note;         2.  The  matter  to  be  supplied  within 

Hamilton   v.   Dunn,    22  111.   259.     But  [  ]  will  not  be  found   in   the  reported 

such  extension  of  time  may  be  granted  case. 

772  Volume  5. 


6497.  COSTS.  6498. 

e.  To  File  Security  or  Show  Cause. 
Form  No.  6497.' 

Supreme  Court,  City  and  County  of  New  York. 

John  Doe,  plaintiff, 
%  against 

Richard  Roe,  defendant. 

Upon  reading  the  annexed  affidavit  of  Joseph  Story,  verified  the 
fourteenth  day  of  May,  i897,  and  upon  motion  of  Joseph  Story,  attor- 
ney for  the  defendant,  it  is  ordered  that  the  plaintiff,  within  ten  days 
from  the  service  of  a  copy  of  this  order,  deposit  with  the  clerk  of  this 
court  two  hundred  and  fifty  dollars,  or  file  an  undertaking  with  one 
surety  in  the  sum  of  two  hundred  and  fifty  dollars  as  security  for 
costs  to  the  defendant,  and  serve  notice  thereof  on  said  attorney  for 
the  defendant  within  the  same  period,  or  that  he  show  cause  before 
me  at  the  County  Court-house  in  N'ew  York  City  on  the  eighteenth  day 
of  May,  1 897,  at  ten  o'clock  in  the/(?r^noon,  why  he  should  not  do  so; 
and  until  such  time,  or  until  such  payment  into  court  and  notice 
thereof,  or  until  the  allowance  of  such  undertaking,  that  all  the 
plaintiff's  proceedings  herein,  except  to  review  or  vacate  this  order, 
be  stayed. 

May  U,  1 897.  John  Marshall,  J.  ^.  C. 

4.  The  Bond,  Undertaking,  or  Recognizance.^ 

a.  In  Civil  Cases. 

(1)  Generally. 

(a)  In  Courts  of  Record, 

Form  No.  6498.  •?  ;• 

(Sand.  &  H.  Dig.  Ark.  (1894),  §  78i.)» 

1.  The  present  New  York  practice  is  to  absolute  order,  and  in  such  case  it  19 

move  by  notice  of  motion  requiring  se-  absolutely   necessary  to  bring   on   the 

curity,  or  by  short  order  to  show  cause  motion  by  notice  or  order  to  show  cause, 

why  security  should   not  be  required.  Wood  v.  Blodgett,  15  Civ.  Proc.  Rep. 

But  under  sections  3268  and  3269  of  the  (N.  Y.  Supreme  Ct)  114. 

Code  (Birds.  Rev.  Stat.  (1896),  p.   717,  2.  Indonement  on  Writ. —  In  the  fol- 

§§  63,  64).  the  notice  of  the  motion  or  an  lowing  states  the  surety's  obligation  is 

order  to  show  cause  is  not  necessary,  complete  by  indorsement  on  the  writ: 

and  an  ex  parte  absolute  order  to  file  Maine.  —  Rev.    Stat.    (1883),    c.    81^ 

security  is  proper,  although  it  is  pref-  ^  6. 

erable  to  follow  the  present  practice  as  Massachusetts.  —  Pub.  Stat.  (1882),  c^ 

above  stated.     Churchman  v.  Merritt,  161,  §  24. 

50  Hun  (N.  Y)  270;  Schwartz  v.  Scott,  25  Michigan.  —  How.  Anno.  Slat.  (1882), 

N.  Y.  Civ.  Proc.  Rep.  (N.  Y.  Supreme  Ct.)  fc^  7296. 

53;  Mitchell  V.  Dick,  8  Misc.  Rep.  (N.  Y.  New  Hampshire.  —  Pub.  Stat.  (1891), 

Super.  Ct.)  98.     But  where  security  is  c.  218,  t^  8. 

sought  for  costs  already  accrued  in  the  South  Dakota.  —  Dak.    Comp.    Laws 

action,  as  well  as  for  those  which  shall  (1887),  §  5207. 

hereafter  accrue,  the  language  of  the  3.  In    Munzesheimer   v.    Byrne,    56 

code   does   not  authorize   an   ex  parte  Ark.  117,  the  bond,  while  not  following 

773  Volume  5. 


6499.  COSTS.  6500. 

'    Pulaski  Circuit  Court. 
John  Doe     ) 

against       >■  Bond  for  Costs. 
Richard  Roe.  ) 

We  undertake  that  the  plaintiff,  JohnDoe^  shall  pay  to  the  defend- 
ant, Richard  Roe,  and  to  the  officers  of  the  court,  all  costs  that  may 
accrue  to  them  in  this  action,  either  in  the  Pulaski  Circuit  Court  or 
any  other  court  to  which  it  may  be  carried. 

Samuel  Short. 
William  West. 
Approved: 

Richard  Styles,  Clerk. 

Form  No.  6499.' 

In  the  Superior  Court  of  the  City  and  County  of  San  Francisco,  State 
of  California. 

John  Doe,  plaintiff,      ^ 

against  y  Undertaking  for  Costs. 

Richard  Roe,  defendant.  ) 

Whereas,  on  the  fourteenth  day  oi  January,  i8P7,  an  order  was 
made  in  the  above  entitled  action  requiring  the  plaintiff  above 
named  to  file  security  for  all  costs  and  charges  that  may  be  awarded 
against  him  the  said  plaintiff  by  judgment  or  in  the  progress  of 
the  action,  not  exceeding  the  sum  of  three  hundred  dollars.  Now 
therefore  we,  Samuel  Short  and  William  West,  both  of  the  said  city 
and  county  of  San  Francisco,  jointly  and  severally  do  undertake  that 
we  will  pay  such  costs  and  charges  as  may  be  awarded  against  the 
plaintiff  by  judgment  or  in  the  progress  of  this  action,  not  exceed- 
ing the  sum  of  three  hundred  dollars. 

In  testimony  whereof  we  have  hereunto  set  our  hands  this  fifteenth 
day  oi  January,  a.  d.  iZ97. 

•  Samuel  Short. 

William  West. 
(^Justification  of  sureties.)^ 

Form  No.  6500. 
(Conn.  Gen.  Stat.  (1888),  |5  896.) 
You,  John  Doe,  as  principal,  and  Samuel  Short,  as  surety,  acknowl- 

the  statute,  was  said  to  be  good  as  a  Eagle  Phenix  Mfg.  Co. 

common-law    bond.       It    was    in    the  "By  Samuel  P.  Mendeg,  Agi. 

words  following,  to  wit:  L.  A.  Byrne. 

•  ^' Eagle  Phenix  Manufacturing^  E.  F.  Friedell." 

Co.,  Plaintiff,                  I  1.  California.  —  Code      Civ.      Proc. 

V.                           [  (1897),  §  1036.     See  also  the  following 

Munzesheimer  dr"  Klein,        j  statutes,  to  wit: 

Defendants.                  J  Idaho.  —  Rev.  Stat.  (1887),  §  4915. 

We  undertake  that  the  plaintiff,  The  Montana. — Code  Civ.    Proc.    (1895), 

Eagle  Phenix  Manufacturing   Company,  §  1871. 

shall   pay   to   the   defendants,  il/awzd-j-  Nevada. — Gen.  Stat.  (1885),  §  3510. 

heimer  S'  Klein,  or  either  of  them,  all  Utah.  —  Rev.  Stat.  (1898),  §  3354. 

damages  which   they   may  sustain   by  Washington .  —  Ballinger's  Anno, 

reason  of  this  attachment,  if  the  order  Codes  &  Stat.  (1897),  §  5186. 

therefor  is   wrongfully  obtained,   and  2.   See    the    title    Justification    of 

the  costs  of  this  action.  Sureties. 

774  Volume  5. 


6501.  COSTS.  6503. 

edge  yourselves  as  jointly  and  severally  bound  (or  You  Samuel  Short 
acknowledge  yourself  bouttd^  to  Richard  Roe,  in  a  recognizance  of  otu 
hundred  dollars,  that  the  said  John  Doe  shall  prosecute  the  action 
which  he  has  now  commenced  against  the  said  Richard  Roe  at  the 
Superior  Court  to  be  holden  at  Hartford  in  and  £or  the  county  of 
Hartford  on  the  second  Tuesday  of  October,  a.  d.  i897,  to  full  effect, 
and  that  he  shall  pay  any  costs  for  which  judgment  shall  be  rendered 
against  him  thereon. 

Taken  and  acknowledged  at  Hartford,  on  the  eighth  day  of  Sep- 
tember, A.  D.  iW7,  before  me. 

John  Jay, 
Justice  of  the  Peace. 

Form  No.  6501. 

(Mills'  Anno.  Stat.  Colo.  (1891),  §  674.) 
John  Doe     ) 
against       >•  District  Court. 
Richard  Roe.  ) 

I  do  hereby  enter  myself    security  for  costs  in  this  case,   and 
acknowledge  myself  bound  to  pay,  or  cause  to  be  paid,  all  costs 
which  may  accrue  in  this  action,  either  to  the  opposite  party  or  to 
any  of  the  ofificers  of  this  court  pursuant  to  the  laws  of  this  state. 
Dated  this  sixteenth  day  of  April,  iS97. 

Richard  Styles. 
Approved : 

Abraham  Kent,  Clerk, 

Form  No.  6502.' 

In  the  Supreme  Court  of  the  District  of  Columbia,  the  seventh  day 
of  October,  iS97. 

John  Doe,  plaintiff,       )  ^     ^.^ 

against  ^  a t  *law  ' 

Richard  Roe,  defendant.  )  ^^  '^^• 

The  plaintiff,  and  Samuel  Short,  his  surety,  appear,  and,  submitting 
to  the  jurisdiction  of  the  court,  hereby  undertake  for  themselves 
and  each  of  them,  their  and  each  of  their  heirs,  executors,  and 
administrators,  to  make  good  all  costs  and  charges  that  the  defend- 
ant may  be  put  to  in  case  the  plaintiff  is  nonsuited,  or  judgment  be 
given  against  him;  and  they  further  agree  that  such  judgment 
against  the  plaintiff  may  be  rendered  against  all  the  parties  whose 
names  are  hereto  affixed. 

John  Doe. 
Samuel  Short. 
Form  No.  6503. 
(Starr  &  C.  Anno.  Stat.  111.  (1896),  p.  1064,  par.  i.) 

John  Doe     ) 

vs.  V  In  the  Cook  County  Circuit  Court. * 

Richard  Roe.  ) 

1.  District  of  Columbia.  —  Comp.  Stat.  2.  Need  not  State  Term. —  The  security 
(1894),  p.  446,  §  30.  need   not  state  the  term  in  which  the 

775  Volume  5. 


6504.  COSTS.  6505. 

I,  Richard  Styles,  do  enter  myself  security  for  all  costs  which  may 
accrue  in  the  above  cause. 

Dated  this  sixteenth  day  of  April,  i897. 

Richard  Styles?- 
Approved: 

Abraham  Kent,  Clerk  of  said  Court.^ 

Form  No.  6504.^ 

Know  all  men  by  these  presents,  that  we,  John  Doe,  principal,  and 
Samuel  Short  Q.nd  William  West,  sureties,  are  held  and  firmly  bound  unto 
Richard  Roe  in  the  sum  oi  five  hundred  dollars,  lawful  money  of  the 
United  States,  well  and  truly  to  be  paid  to  the  said  Richard  Roe,  his 
heirs,  executors  and  assigns. 

The  condition  of  the  above  obligation  is  such,  that  whereas,  on  the 
third  dsiy  of  October,  a.  d.  i2>97,  the  said  John  Doe  commenced  an 
action  in  the  District  Court  against  the  said  Richard  Roe,  and  whereas 
the  said  plaintiff  is  a  nonresident  of  the  state  of  Iowa,  and  the 
defendant  having  filed  his  affidavit  in  said  action  stating  that  he  has 
a  good  defense  thereto: 

Now  if  the  said  John  Doe  shall  well  and  truly  pay  the  costs  which 
may  accrue  in  said  action,  in  said  court  or  in  any  other  court  to 
which  the  same  may  be  carried,  either  to  the  said  defendant  or  the 
officers  of  the  court,  then  this  obligation  to  be  void,  otherwise  to 
remain  in  full  force  and  virtue. 

John  Doe,  Principal. 
Samuel  Short,  Surety. 
William  West,  Surety. 

(^Justification  of  sureties!)^ 

Approved:  John  Hancock, 

Clerk  Folk  County  District  Court. 

Form  No.  6505.* 

In  the  District  Court,  Laramie  County,  Kansas. 
John  Doe,  plaintiff,      ) 

against  >■  Bond  for  Costs. 

Richard  Roe,  defendant.  ) 

Whereas,  John  Doe,  as  plaintiff,  is  about  to  commence,  in  the  Dis- 

action  was  brought,  so  long  as  there  is  dell,  2  111.  593.  But  where  the  under- 
no  difficulty  in  identifying  the  cause  in  taking  was  entitled  "The  Same  vs. 
which  it  is  filed.  The  recital  even  of  The  Same,"  and  was  upon  a  separate 
the  wrong  term  does  not  necessarily  sheet,  with  nothing  to  refer  it  to  the 
vitiate  the  security.  Himes  v.  Blakes-  properly  entitled  cause,  it  was  held  in- 
lay, 21  111.  509.  sufficient.     Warnock  v.  Russell,  2  111. 

1.  Undertaking  valid:  Where  christian  383. 

name  of   surety  abbreviated,   King  v.  2.  Approval. —  The  undertaking  must 

Thompson,  4  111.  184;  where  signed  in  be  approved  by  the  clerk.     Starr  &  C. 

copartnership  name,  Linn  v.  Bucking-  Anno.  Stat.  111.  (1896),  p.  1066,  par,  2. 

ham,   2  III.   452;  where   the  form  was  3.  Iowa.  —  Code  (1897),   §  3847.     See 

written  on  the  back  of  the  declaration  also  Neb.  Comp.  Stat.  (1897),  §  6208. 

and  bore  no  title  of  the  court;  where  4.  See    the    title    Justification    of 

entitled  "  Same  v.  Same,"  written  below  Sureties. 

the  praecipe  for  summons,  and  signed  6.  Kansas. — Gen.  Stat.  (1889),  §  4682. 

in  partnership  name,  Kettelle  v.  War-  Under   the   provisions   of   this   statute 

776  Volume  5. 


6506.  COSTS.  6506. 

trict  Court  of  Laramie  county,  Kansas,  a  civil  action  against  Richard 
Roe,  as  defendant,  entitled  as  above:  Now,  therefore,  we  John  Doe^ 
as  principal,  and  Samuel  Short  ^.nd  William  West,  as  sureties,  do  hereby 
undertake  and  bind  ourselves  unto  the  said  defendant  in  said  action, 
and  to  each  and  every  other  person  who  may  have  a  right  to  such 
costs  or  to  any  part  thereof,  that  the  said  plaintiff  will  pay  all  costs 
that  may  accrue  in  said  action  in  case  he  shall  be  adjudged  to  pay 
them;  and  in  case  the  same  cannot  be  collected  from  the  defendant 
if  judgment  be  obtained  against  him,  or  any  or  either  of  them,  that 
the  said  plaintiff  will  pay  the  costs  made  by  said  plaintiff;  and  we 
hereby  acknowledge  ourselves  indebted  to  whomsoever  it  may  con- 
cern to  the  amount  of  said  costs,  which  it  is  above  agreed  the  said 
plaintiff  shall  pay.  To  the  faithful  performance  of  the  foregoing 
obligation  we  bind  ourselves  and  our  representatives  firmly  by  these 
presents. 

Witness  our  hands  Xhxs  fourth  day  of  October,  a.  d.  i857. 

John  Doe. 
Samuel  Short. 
William  West. 

The  above  bond  is  hereby  approved  by  me  this  fourth  day  of  October, 
A.  D.  1 897.  John  Hancock,  Clerk  of  the  District  Court. 

(justification  of  sureties.  )^ 

Form  No.  6506. 
(Bullitt's  Civ.  Code  Ky.  (1895),  p.  692.)* 

John  Doe,  plaintiff,      ) 

against  >  Bond  for  Costs. 

Richard  Roe,  defendant.  ) 

We  undertake  that  the  plaintiff,  John  Doe,  shall  pay  to  the  defen- 
dant, Richard  Roe,  and  to  the  officers  of  the  court,  all  costs  that  may 
accrue  t'o  them  in  this  action  either  in  the  Bourbon  Circuit  Court  or  in 
any  other  court  to  which  it  may  be  carried. 

every  plaintiff  must  file  such  a  bond  or  defendant  herein,  and  the  same  cannot 

deposit   with    the   clerk   such  sum    or  be  collected  from  the  defendant,  as  or- 

sums  as  in  the  opinion  of  the  clerk  will  dered  by  the  court  herein, 

cover  the  costs.  Given  under  my  hand  at  Leavenworth 

Precedent. —  In  Ryan  v.  Williams,  29  city,  Kansas,  this  twelfth  day  oi  Febru- 

Kan.  492,  the  bond  was  as  follows:  u^i^y,  ^^79- 

"'Henry  T.  Green,  as  Administrator  of  Matthew  Ryan." 

the  Estate  of  Theodore  fones.   Deceased,  It  was  held  that  this  bond  bound  the 

Plaintiff,   v.  fames  E.  tvilliams,  as  Ad-  obligor  to  pay  only  such  judgment  as 

ministrator  of  the  Estate  of  facob  Mc-  might   be   rendered    for   costs   against 

Murtry,  Deceased,  Defendant.  Green  as  administrator,    and   did   not 

I,  Matthew  Ryan,  a  resident  of  Leaven-  bind  him  to  pay  any  judgment  for  costs 

worth  county,  in  Kansas,  hereby  bind  that   might   be   rendered   against   any 

and  obligate  myself  that  the   plaintiff  other  or  subsequent  administrator, 

above  named  shall  pay  all  costs  that  1.  The  plaintiff  himself  need  not  exe- 

may  accrue  in  the  above   entitled  ac-  cute  the  bond.     Kan.  Gen.  Stat.  (1889), 

tion,  in  case  he  shall  be  adjudged   to  §  4682. 

pay  the  same;  and  I  further  bind  and  2.  See  the  title  JUSTIFICATION  OF  SuRE- 

obligate   myself   that   he   will    pay  all  ties. 

costs  made   by  him  in  said  action,  in  3.  Kentucky.  —  Bullitt's     Civ.     Code 

case  judgment  be  obtained  against  the  (1895),  §§29,  616,  621. 

777  Volume  5. 


6507.  COSTS.  6508. 

Witness  our  hands  this  thirteenth  day  of  May,  iS97. 

John  Doe.  ^ 
Samuel  Short. 

(^Justification  of  sureties.  )2 

Form  No.  6507.' 

State  of  Minnesota,  )  District  Court, 

County  oi  Ramsey,  j      '     6>^^«^ Judicial  District. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

Know  all  men  by  these  presents,  that  we,  Samuel  Short  2sA  William 
West,  of  the  city  of  St.  Paul,  in  said  county  and  state,  are  held  and 
firmly  bound  unto  the  clerk  of  this  court  in  the  sum  of  seventy-five 
dollars,  lawful  money  of  the  United  States,  to  be  paid  to  the  said 
clerk,  for  which  payment,  well  and  truly  to  be  made,  we  bind  our- 
selves, our  heirs,  executors  and  administrators  firmly  by  these 
presents. 

Sealed  with  our  seals,  and  dated  XhQ  fourth  day  of  October,  a.  d. 
i8P7. 

The  condition  of  the  above  obligation  is  such,  that  if  the  plaintiff 
in  this  action  shall  well  and  truly  pay,  or  cause  to  be  paid,  to  the  said 
clerk,  for  the  benefit  of  the  party  who  may  become  entitled  thereto, 
all  disbursements  and  costs  that  may  be  adjudged  against  said  plain- 
tiff in  this  action,  then  this  obligation  shall  be  void,  otherwise  of  force. 

Samuel  Short,     (seal) 
William  West,    (seal) 

Signed,  sealed  and  delivered  in  presence  of  Leonard  A.  Ford. 

Charles  Mainjoy. 
State  of  Minnesota.  ) 

L  CO 

County  of  Ramsey.  \      ' 

On  th\%  fourth  day  of  October,  a.  d.  i8P7,  before  me  personally 
appeared  Samuel  Short  and  William  West,  to  me  known  to  be  the 
same  persons  described  in  and  who  executed  the  foregoing  bond,  and 
each  for  himself  acknowledged  the  same  to  be  his  own  free  act  and 
deed.*  Abraham  Ketii,  Justice  of  the  Peace. 

(^Justification  of  sureties. ^ 

Form  No.  6508.* 

State  of  Mississippi,  De  Soto  County. 

We,  John  Doe,  complainant,  as  principal,  and  Samuel  Short  and 

1.  The  plaintiff's  signature  to  the  sometimes  required  to  be  acknowledged 
bond  is  not  necessary.  Bullitt's  Civ.  by  rule  of  court  or  even  by  statute,  as 
Code  Ky.  (1895),  p.  692.  in   New  York   Code   Civ.  Proc,  §  810. 

2.  See  the  title  Justification  of  But  it  seems  that  a  judge  may  excuse 
Sureties,  and  Bullitt's  Civ.  Code  Ky.  compliance  with  a  rule  requiring  a  bond 
(1895),  §§  683,  684.  to  be  acknowledged  by  sureties.     Gale 

3.  Minnesota.  —  Stat.    (1894),  §  5518.  v.  Seifert,  39  Minn.  171. 

As   to  the  use  of  an   undertaking  in  6.  See    the    title    Justification    of 

olace    of    the    bond,   see  Stat.   (1894),  Sureties. 

§7989.  6.  Mississippi. —  Anno.  Code  (1892), 

4.  Acknowledgment.  —  A  bond   is  not  §§  86 r,  863. 

ordinarily  ,  acknowledged,    but     it    is        After  Suit  Commenced.  —  Where   the 

778  Volume  5. 


6509.  COSTS.  6510. 

William  West,  sureties,  agree  to  pay,  as  may  be  required  by  law,  all 
costs  that  may  accrue  in  an  action  for  (^Here  describe  the  action)  to  be  filed 
in  the  Chancery  Court  of  the  county  of  De  Soto  in  said  state,  by  said 
complainant  against  Richard  Roe. 

Signed  with  our  hands  and  delivered  this  the /<wr//i^  day  oi  October ^ 
A.  D.  i8S7. 

John  Doe. 
Samuel  Short. 
William  West. 
I  approve  the  above  security  this  ih&  fourth  day  oi  October,  a.  d. 
i857.  John  Hancock^  Chancery  Clerk. 

Form  No.  6509. 
(Mo.  Rev«Sut.  (1889),  p.  2240,  No.  50.)' 

•^     ^       '  •     f  '    /      In   the  circuit   court    of  Barton  county, 

r^^^'"f  f     A     ^  \        Nai'ember  term,  \890. 
John  Jones,  defendant.  )  ' 

I,  Jasper  James,  a  resident  of  the  state  of  Missouri,  do  hereby 
acknowledge  myself  bound  to  pay  all  the  costs  which  may  accrue  in 
the  above  entitled  cause. 

Witness  my  signature,  this/<wrM  day  of  October,  iS97. 

Jasper  James. 

Form  No.  6510.' 

Supreme  Court,  City  and  County  of  New  York. 

John  Doe,  plaintiff,     ) 

against  y  Security  for  Costs.  —  Nonresident  Plaintiflf. 

Richard  Roe,  defendant.  ) 

Whereas,  John  Doe,  the  above  named  plaintiff,  has  commenced  an 
action  in  the  above  named  court  against  Richard  Roe^  the  above 
named  defendant, 

Now,  therefore,  we,  Samuel  Short  of  No.  23  W.  2Sd  street,  in  JVew 

security  for  costs  is  required  after  suit  After  Suit  Begun.  —  Security  after  suit 

commenced    under  Miss.  Anno.  Code  begun  is  provided  for  in  Mo.  Rev.  Stat. 

(^892),  §  862,  the  following  form  may  (1889),  ^  2qi6.     The  form  of  the  under- 

be  used:  taking  is  given  in  Mo.  Rev.  Stat.  (1889), 


" State ot Mississippi,],    ^.f.  p.  2240,  No.  51,  as  follows: 

De  Soto  County.  \  mcnancery^ouTt.         ^^  I  ^  Jasper  James,  &   resident   of  the 


John  Doe,  plaintiff,        )  state  of  Missouri,  do  hereby  acknowl- 

against                 >■  edge  myself  bound  to  pay  all  the  costs 

Jiichard  Roe,  defendant.  )  which  have  accrued,  or  may  accrue,  in 

The    plaintiff    in   the    above    styled  the  above  entitled  cause,"  the  caption 

case  having  been  duly  required  by  said  and  conclusion  being  the  same  as  those 

court   to   give   security  for   costs,    we,  in  the  text. 

John  Doe,  as   principal,     and    Samuel  2.  New  York. — Code  Civ.    Proc,   § 

Short  and  William  West,  sureties,  agree  3273  (Birds.  Rev.  Stat.  (1896),  p.  717,  § 

to  pay,  as  may  be  required  by  law,  all  63).     See  also  the  following  statutes: 

costs  accrued  or  to  accrue  in  said  suit.  Alabama.  —  Civ.     Code    (1886),     §§ 

Signed"  {concluding  as  in  Form   No.  2858,  2863. 

6508).  Indiana.  —  Horner's  Stat.   (1896),  § 

1.  Missouri.  —  Rev.    Stat.    (1889),    §  589. 
2915. 

779  Volume  5. 


6511.  COSTS.  6511. 

York  City,  and  Richard  Shannon  of  No.  172a  Clifton  place,  in  the  city 
oi  Brooklyn,  do  hereby,  pursuant  to  the  statute  in  such  case  made  and 
provided,  jointly  and  severally  undertake  that  we  will  pay,  upon 
demand,^  to  the  defendant  all  costs  which  may  be  awarded  to  him  in 
said  action,  not  exceeding  the  sum  oi  two  hundred  and  fifty  dollars. 
Dated  May  10,  iS97, 

Samuel  Short. 
Richard  Shannon. 
{Ackno7vledgment.  )2 
(^/ustificatiofi  of  sureties.)^ 

I  hereby  approve  the  foregoing  undertaking  both  as  to  form  and 
manner  of  execution  and  as  to  the  sureties  therein  mentioned.* 

John  Marshall,  J.  S.  C. 

Form  No.  6  5  1 1  .* 

I^ash  County  —  In  the  Superior  Court. 
John  Doe,  plaintiff,      ^ 

against  V  Undertaking  for  Costs. 

Richard  Roe,  defendant.  ) 

We,  John  Doe,  the  plaintiff,  and  Samuel  Short  Siwd.  William  West,  our 
executors  and  administrators,  are  bound  to  the  defendant,  Richard 
Roe,  in  the  above  entitled  action  in  the  sum  of  two  hundred  dollars. 
This  obligation  to  be  void  upon  the  condition  that  the  said  plaintiff, 
John  Doe,  shall  pay  to  the  defendant  all  such  costs  as  the  defendant 
may  recover  of  the  plaintiff  in  said  action.  Otherwise  to  remain  in 
full  force  and  effect. 

Witness  our  hands  th\s  fourth  day  of  October,  iS91. 

John  Doe. 
Samuel  Short. 
William  West. 

1.  The  bond  should  he  conditioned  however,  if  the  plaintifif  shall  pay  to  the 
for  payment  on  demand  of  the  obligors  defendant  all  such  costs  as  the  defend- 
and  not  on  demand  of  the  plaintiff,  ant  may  recover  of  the  plaintifif  in  this 
Montague  v.  Bassett,  18  Abb.   Pr.  (N.  action. 

Y.  Supreme  Ct.)  13.  Witness  our  hands  and  seals  this 

2.  See  supra,  note  4,  p.  778.  day  of ,  a.d.  i8<?-. 

3.  See   the    title    Justification  of  (seal) 

Sureties.  (seal) 

4.  This  approval  is  required  by  N.  f.  B.  Martin,  (seal)" 
Y.  Code  Civ.  Proc,  §  3275  (Birds.  Rev.         The  superior  court  having  held  this 
Stat.  (1886),  p.  719,  §  70).                               writing  not  a  substantial  or  any  com- 

6.  North    Carolina.  —  Code  (1883),    ^  pliance  with   the    statute   cited  above, 

20g.     A  money  deposit  in  lieu  of  an  the   plaintiff  excepted,  whereupon    the 

undertaking     is     authorized     by    this  supreme  court  held  that  while  the  bond 

section.  was   certainly    informal    and    in  some 

Precedent.  —  In  Holly  v.  Perry,  94  N.  respects  not  very  definite  and  certain, 

Car.  31,  the  instrument  was  written  on  yet  taken  in  connection  with  the  sum- 

the  back  of  the  summons,  and  was  as  mons,   its  purpose  as  indicated  by  its 

follows:  terms,  and  applying  it  as  contemplated 

"  We  acknowledge  ourselves  bound  by  the  statute,  it  ought  to  be  treated  as 

unto  the  defendant  in  this  action  in  the  in  effect  a  sufficient  undertaking, 
sum  of  two  Aundred  dollsLTs;  to  be  void, 

780  Volume  5. 


6512.  COSTS.  6614. 

Form  No.  6512. 
(S.  Car.  Circuit  Ct.  Rules  (1894),  No.  X.)* 

State  of  South  Carolina,  ) 
York  County,  \ 

John  Doe    ) 

vs.  >  Complaint  for . 

Richard  Roe.  ) 

I  acknowledge  myself  liable  for  the  costs  of  this  case,  and  consent 
that  if  the  plaintiff  fail  to  recover,  the  defendant  may  have  execution 
for  his  costs  against  me. 

Given  under  my  hand  this  twenty-fourth  day  oi  April,  a.  d.  i857. 

Samuel  Short. 
Witness:  Approved: 

Richard  Styles,  Richard  Styles, 

C.  C.  P  and  G.  S.  C.  C.  P.  and  G.  S. 

Form  No.  6513.* 

The  State  of  Texas,  \  Suit  pending  in  the  District  Court  of 

County  of  Freestone,  f  Freestone  County. 

John  Doe,  plaintiff,      ^ 

against  |-  No.  212. 

Richard  Roe,  defendant.  ) 

Know  all  men  by  these  presents,  that  we,  John  Doe,  as  principal,  and 
Samuel  Short  and  William  West,  as  sureties,  do  hereby  acknowledge 
ourselves  jointly  and  severally  bound  to  pay  to  the  officers  of  said 
court  all  costs  that  maybe  adjudged  against  the  plaintiff  in  the  above 
entitled  suit,  during  the  pendency  or  at  the  final  determination 
thereof,  and  judgment  for  the  said  costs  may  be  rendered  against  us. 
Witness  our  hands,  this  seventh  day  of  October,  a.  d.  iW7. 

John  Doe. 
Samuel  Short. 
William  West. 
Approved  this  seventh  day  of  October,  a.  d.  i8P7. 

John  Hancock,  Clerk, 
District  Court,  Freestone  Co. ,  Texas. 

Form  No.  6514.' 

Know  all  men  by  these  presents,  that  I,  Samuel  Short,  am  held  and 
firmly  bound  unto  the  commonwealth  of  Virginia,  in  the  sum  of  two 
hundred  and  fifty  dollars  to  be  paid  to  the  said  commonwealth,  for 
which  payment,  well  and  truly  to  be  made,  I  bind  myself,  my  heirs, 
executors  and  administrators,  firmly  by  these  presents.  And  I 
hereby  waive  the  benefit  of  my  homestead  exen\>.ion  as  to  this  obliga- 

1,  Under  this  rule  the  plaintiff  may  A  deposit  of  money  has  been  held  a 
deposit  a  sum  of  money  instead  of  giv-  sufficient  compliance  with  a  rule  for  a 
ing  the  above  undertaking;  the  amount  bond  for  costs.  Henderson  v.  Riley,  i 
thereof  to  be  fixed  by  the  clerk.  Tex.  App.  Civ.  Cas.,  §  483. 

2.  Texas.  —  Rev.    Stat.    (1895),    art.         3.    Virginia. — Code  (1887),  §  3539. 
1441.  West  Virginia.  —  Code  (1891),  c.  138, 

Arizona.  —  Rev.  Stat.  (1887),  §  907.         §  2. 

781  Volume  5. 


6515.  COSTS.  6515. 

tion,  and  any  claim  or  right  to  discharge  any  liability  to  the  com- 
monwealth arising  under  this  bond,  with  coupons  detached  from  the 
bonds  of  this  state.  Sealed  with  my  seal,  and  dated  X.h.\s  fourth  day 
of  October^  in  the  year  one  thousand  eight  hundred  and  ninety-seven. 

The  condition  of  the  above  obligation  is  such,  that  whereas  a  suit 
hath  been  instituted  in  the  Circuit  Court  of  the  County  of  Albermarle 
by  John  Doe  against  Richard  Roe  for  (Jlere  describe  the  cause  of 
action),  and  a  suggestion  was  entered  by  Richard  Roe,  the  said 
defendant,  that  the  said  plaintiff,  John  Doe,  is  not  a  resident  of  the 
state  of  Virginia,  and  that  security  was  required  of  him  for  the  pay- 
ment of  the  costs  and  damages^  which  may  be  awarded  to  the  said 
defendant  and  of  the  fees  due  or  to  become  due  in  the  said  suit  to 
the  officers  of  the  said  court.  Now  if  the  above  bound  Samuel  Short 
shall  well  and  truly  pay  all  such  fees  as  are  due  or  may  become  due 
from  the  said  John  Doe  to  the  officers  of  the  said  court  in  the  prose- 
cution of  the  said  suit,  and  moreover  shall  well  and  truly  pay  to  the 
said  defendant  all  such  costs  and  damages  as  may  be  awarded  to  him 
in  case  the  said  plaintiff  shall  be  cast  therein,  and  condemned  to 
pay  the  same,  then  this  obligation  is  to  be  void,  otherwise  to  remain 
in  full  force  and  virtue, 

Samuel  Short,     (seal) 

Executed,  acknowledged,  etc.,  in  the  presence  of 
Leonard  A.  Ford. 

Form  No.  6515.* 

Circuit  Court,  Dane  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

Whereas,  an  order  has  been  made  in  the  above  entitled  action, 
requiring  the  plaintiff  above  named  to  file  security  for  all  costs  that 
may  be  incurred  by  the  defendant  in  said  action,  in  the  sum  of  tivo 
hundred  and  fifty  dollars,  within  twenty  days  after  the  service  of  said 
order  upon  said  plaintiff,  and  staying  all  proceedings  on  the  part  of 
said  plaintiff  in  said  action  until  such  security  be  filed; 

Now,  therefore,  we,  Samuel  Short  and  William  West,  of  the  city  of 
Madison,  county  of  Dane,  and  state  of  Wisconsin,  do  undertake  that 
the  said  plaintiff  will  pay,  on  demand,  all  costs  that  may  be  awarded 
to  the  said  defendant  in  said  action,  in  any  court,  not  exceeding  the 
sum  of  two  hundred  and  fifty  dollars. 

In  testimony  whereof,  the  parties  above  named  have  hereunto  set 
their  hands  and  seals  t\i\?,  fourth  day  of  October,  a.  d.  i897. 

Samuel  Short.      (seal) 

In  presence  of  Leonard  A.  Ford.  William  West,     (seal) 

Charles  Mainjoy. 

{^Justification  of  sureties.')^ 

1.  In  West  Virginia  the  words  "  and  suit  to  the  officers  of  the  court."    W. 

damages  "  need  not  be  used,  the  stat-  Va.  Code  (1891),  c.  138,  §  2. 

ute  requiring   the   undertaking   to   be  2.    Wisconsin.  —  Sanb.    &   B.    Anno. 

"  for  payment  of  the  costs  which  may  Stat.  (1889),  §  2946. 

be  awarded  to  the  defendant,  and  of  3.  See    the    title    JUSTIFICATION    OF 

the  fees  due  or  to  become  due  in  such  Sureties. 

783  Volume  5. 


6616.  COSTS.  6518. 

(b)  In  Justice's  Court. 

Form  No.  6516. 

(Mills'  Anno.  Stat.  Colo.  111.  (1891),  §  2634,) 

State  of  Colorado,  ) 

V  ss 
Dolores  County.     ) 

John  Doe    ) 

vs.  y  Demand  $60. 

Richard  Roe.  ) 

I,  Samuel  Short,  do  enter  myself  security  for  all  costs  that  may 
accrue  in  the  above  case,  th\s,  fifth  day  of  March,  iS98. 

Samuel  Short,     (seal) 

Form  No.  6517. 

(Starr  &  C.  Anno.  Stat.  111.  (i8g6),  c.  79,  par.  177.) 
State  of  Illinois, 


District.  ^  ^^- 


^\ 


John  Doe    \^^iQ^^  j^hn  Marshall, 
R'  h^^d  R      \  Justice  of  the  Peace. 

I,  Richard  Styles,  do  enter  myself  security  for  all  costs  that  may 
accrue  in  the  above  cause. 

Dated  this  sixteenth  day  of  April,  i897. 


Richard  Styles. 


Form  No.  6518.' 


^'  I  ss. 


State  of  Kansas, 
Linn  County. 

Whereas,  y^^«  Z>^^  intends  to  commence  an  action  against  Rich- 
ard Roe  before  Abraham  Kent,  a  justice  of  the  peace  of  Potosie  town- 
ship in  said  county,  and  whereas  the  said  John  Doe  is  a  nonresident 
of  said  county;  now  we  the  undersigned,  residents  of  said  Linn 
county,  undertake  to  pay  the  said  Richard  Roe  all  costs  which  may 
accrue  in  said  action. 

Samuel  Short. 
William  West. 
Approved  by  me  this^M  day  of  March,  a.  d.  \W8. 

Abraham  Kent,  Justice  of  the  Peace. 

1.  Kansas.  —  Gen.  Stat.  (1889),  §  5042.  after  the  commencement  thereof  has 
Plaintiff  Removing  Pending  Suit. —  removed  from  the  said  county  of  Linn; 
Where  plaintiff  removes  after  the  ac-  now  we,  the  undersigned,  residents  of 
tion  is  commenced,  and  security  is  said  county,  bind  ourselves  to  the 
required  under  the  provisions  of  Kan.  above  named  defendant  for  the  pay- 
Gen.  Stat.  (1S89),  §  5043,  an  undertak-  ment  of  all  costs  which  may  have  ac- 
ing  should  be  entitled  in  the  cause  and  crued  or  which  may  accrue  "  (concluding 
recite  that  "  Whereas,  John  Doe,  the  aj  in  the  text). 
plaintiff  in  the  above  entitled  action, 

788  Volume  5. 


6519.  COSTS.  6521. 

Form  No.  6519. 

(Mo.  Rev.  Stat.  (1889),  §  6156.)! 

John  Doe,  plaintiff,      ) 

against  >  Obligation  for  Costs. 

Richard  Roe,  defendant.  ) 

We  bind  ourselves  to  pay  all  costs  that  have  accrued  or  may  here- 
after accrue  in  this  cause. 

John  Styles. 
Richard  Styles. 
Oliver  Elsworth. 
Approved  April  16,  i897. 
Abraham  Kent,  Justice  of  the  peace. 

Form  No.  6520.* 

Justice's  Court  for  the  Precinct  of  Central  Portland. 
State  of  Oregon,  ) 

County  of  Multnomah.  \ 
John  Doe,  plaintiff,      ) 

against  >•  Undertaking  for  Costs. 

Richard  Roe,  defendant.  ) 

We,  John  Doe,  plaintiff,  and  Samuel  Short,  surety,  undertake  to  pay 
Richard  Roe,  the  defendant  in  this  action,  all  costs  and  disburse- 
ments that  may  be  adjudged  to  him  in  this  action. 
Dated  at  Portland,  this  fifth  day  of  March,  i  %98. 

John  Doe,  Plaintiff, 
Samuel  Short,  Surety. 
{^Justification  of  surety. )' 


(2)  In  Election  Contest. 

Form  No.  6521. 

(Precedent  in  Hilliard  v.  Brown,  103  Ala.  319.)* 

The  State  of  Alabama,  \  Whereas,  T.  H.  Brown,  an  elector  of  the 
Pike  County.  f  county  of  Pike  in  said  State,  has  this  day 

filed  in  the  office  of  the  clerk  of  the  circuit  court  of  said  county,  his 
grounds  of  contest  of  the  election  of  W.  J.  Hilliard  to  the  office  of 
Judge  of  Probate  of  said  county,  at  an  election  held  on  the  1st  day 
of  August,  \W2\  Now,  therefore,  we,  the  undersigned,  hereby  ac- 
knowledge ourselves  to  be  bound  as  security  for  the  costs  of  said  con- 

1.  See  also  forms  in  Mo.  Rev.  Stat,  tification  is  necessary,  see  Holcomb  v. 
(1889),  p.  2264,  Nos.  159,  160.  Teal,  4  Oregon  352. 

2.  Oregon. — Hill's  Anno.  Laws  (.1892),  4.  This  bond  is  drawn  in  conformity 
§  2063.  to  the  requirements  of  Ala.  Civ.  Code 

3.  For  forms  connected  with  the  jus-  (1886),  §  428.    See  also  Sand.  &  H.  Dig. 
tification  of  sureties  see  the  title  Justifi-  Ark.  (1894),  §§  2702,  2704. 

CATION  OF  Sureties.     As  to  when  jus- 

784  Volume  5. 


6522.  COSTS.  6523. 

test.     In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals 
this  17th  day  of  August,  iS92. 

Approved  August  17th,  i892.  )  T.  H.  Brawn.  (seal) 

O.  Worthy,  Clerk.  f  W.  A.  McBryde.  (seal) 

O.  R.  Dykis.  (seal) 

L.  M.  Treadwell.  (seal) 

/.  P.  Wood.  (seal) 

O.  C.  Wiley.  (seal) 

b.  In  Criminal  Cases. 
Form  No.  6522. 

(Sand.  &  H.  Dig.  Ark.  (1894),  §  2323.) 
State  of  Arkansas 
against 
Richard  Roe. 

I,  Samuel  Short,  as  principal,  and  William  West,  as  security,  bind 
ourselves  to  pay  all  costs  in  this  cause. 
Signed  \.h\s  fourteenth  day  of  April,  A.  d.  i897. 

Samuel  Short. 
William  West. 
Form  No.  6533. > 
State  of  Michigan,    \ 
County  of  Lenawee.  \ 

Be  it  remembered,  that  on  th&  fifth  day  of  March,  a.  d.  \Z98,  be- 
fore me,  Abraham  Kent,  a  justice  of  the  peace  of  Adrian  township  in 
said  county,  personally  came  John  Doe,  Samuel  Short  and  William 
West,  all  of  the  township  of  Adrian  in  the  county  of  Lenawee  and  state 
of  Michigan,  and  severally  and  respectively  acknowledged  themselves 
to  be  indebted  to  the  people  of  the  state  of  Michigan  in  the  sum  of 
one  hundred  dollars  each,  to  be  levied  of  their  respective  goods  and 
chattels,  lands  and  tenements,  for  the  use  of  said  people,  if  default 
shall  be  made  in  the  conditions  following: 

Whereas,  the  above  bounden  fohn  Doe  has  this  day  made  complaint 
on  oath  before  me,  that  at  the  to^vnship  of  Adrian  in  the  said  county, 
on  the  third  ^a.y  of  March,  a.  d.  i2>98,  Richard  Roe  did  {Here  describe 
the  offense  charged). 

Now,  therefore,  the  condition  of  this  recognizance  is  such,  that  if 
the  said  fohn  Doe  shall  pay  all  costs  which  shall  accrue  to  the  court 
sheriff,  constable  and  jury  upon  the  proceedings  to  be  had  upon  said 
complaint,  if  he  does  not  establish  the  same  (and  unless  I,  or  the 
court  before  whom  the  trial  for  said  offense  shall  be  had,  shall  certify 
in  my  or  its  minutes  of  said  trial,  that  there  was  probable  cause  for 
the  making  of  said  complaint),  then  this  recognizance  shall  be  void, 
otherwise  in  force.  fohn  Doe. 

Samuel  Short. 
William  West. 
Taken,  subscribed  and  acknowledged  before  me  the  day  and  year 
first  above  written. 

Abraham  Kent,  Justice  of  the  Peace. 

1.  Michigan.  —  How.  Anno.  Stat.  (1882),  §  9063.  See  also  Wyoming  Laws 
(1893),  c.  30,  g  I. 

.    5  E.  of  F.  P.— 50.  785  Volume  5. 


6524.  COSTS.  6626. 

5.  Notice  of  Security  Filed. 

Form  No.  6524.* 

Circuit  Court,  Dane  County. 

John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 
'Yo  Richard  Roe,  defendant  above  named: 

Pursuant  to  the  order  heretofore  made  in  the  above  entitled 
action,  requiring  the  above  named  plaintiff  to  file  security  for  costs 
herein,  and  staying  proceedings  on  the  part  of  said  plaintiff  meanwhile, 

Take  notice,  that  the  said  plaintiff  *  has  filed  with  the  clerk  of  the 
Circuit  Court  of  Dane  county  an  undertaking  (of  which  a  copy  is 
herewith  served  upon  you)  with  two  sufficient  sureties,  to  the  effect 
that  said  plaintiff  will  pay  on  demand  all  costs  that  may  be  awarded 
to  said  defendant  in  such  action,  in  any  court,  not  exceeding  two 
hundred  and  fifty  dollars,  the  sum  mentioned  in  said  order,  and  that 
the  stay  of  proceedings  on  the  part  of  said  plaintiff  in  said  action, 
directed  by  said  order,  is  hereby  terminated. 

"DdXtd.  March  15,  a.  d.  i?>98. 

Yours,  etc., 

Jeremiah  Mason,  Plaintiff's  Attorney. 

6.  Dismissal  for  Failure  to  Give  Security, 
a.  Affidavit  in  Support  of  Motion.^ 

Form  No*  6525.' 

State  of  Ohio,       )    j^  ^^^  ^^^^^    r  q^^^^^  pi^^^^ 
Allen  County,  ss.  \  •' 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

Joseph  Story,  being  duly  sworn,  deposes  and  says: 

I.  That  he  is  the  attorney  for  the  defendant  in  this  action. 

II.  That  on  the  first  day  of  April,  iS97,  upon  motion  of  the 
defendant,  an  order  was  made  and  entered  herein  upon  due  notice  to 
the  plaintiff,  the  Honorable  John  Marshall,  presiding,  requiring  plain- 
tiff, as  a  nonresident,  to  file  security  for  costs  to  the  defendant  within 
ten  days  from  said  date,  and  that  said  order  was  duly  served  upon 
plaintiff's  attorney  on  the  second  day  of  April,  iS97. 

1.    Wisconsin.  —  Sanb.    &    B.    Anno,  paid  into  court  the  sum  of /w/^  ^««a^r^</ 

Stat.  (1889),  §  2946.  and  fifty  dollars,  to  be  applied  to  the 

New  York.  —  Birds.  Rev.  Stat.  (1896),  payment  of   any  costs  which    may  be 

p.  719,  §  67.  awarded  against  him  in  this  action. 

Money  Deposit.  —  Where,  in  place  of        Dated"  (conc/uding^  as  in  Form  No. 

filing  an  undertaking,  plaintiff  has  paid  6^24). 

money   into   court   as   under   the  pro-        2.  For  forms  of  affidavits,  generally, 

visions  of  Birds.  Rev.  Stat.  N,  Y.  (1896),  consult  the  title  Affidavits,  vol.  i,  p. 

p.   719,  §  67,  the  notice  should  be  as  548. 

follows:     {Commencing  as  in  Form  No.         3.  Ohio. — Bates'  Anno.  Stat.  (1897), 

6J24,   and  continuing  down   to*)  "  has  §  5341. 

786  Volume  5, 


6526.  COSTS.  6527. 

III.  That  said  period  of  ten  days  expired  on  the  twelfth  day  of 
April,  iS97,  but  that  plaintiff  failed  to  file  security  before  the  expira- 
tion of  said  time,  and  by  failure  so  to  do  he  has  not  complied  with 
the  requirements  of  the  order  oi  April  first,  iS07. 

IV.  That  thereafter  and  up  to  the  present  timt  the  plaintiff  has 
wholly  failed  and  neglected  to  file  security  for  costs  as  directed. ^ 

Wherefore  the  defendant  is  entitled  to  an  absolute  order  that  the 
complaint  herein  be  dismissed  with  costs  and  that  he   have  judg- 
ment accordingly.  Joseph  Story. 
Sworn  to  before  me  this  seventeenth  day  of  April,  iS97. 

Abrahatn  Kent, 
Notary  Public,  Allen  County,  State  of  Ohio. 

b.  Notice  of  Motion.* 

Form  No.  6  5  2  6 .» 

(  Title  of  court  and  cause  as  in  Form  No.  6525.) 
To  John  Doe,  plaintiff  above  named: 

You  are  hereby  notified  that  on  the  fifteenth  day  of  March,  iS98, 
defendant  will  apply  to  the  Hon.  John  Marshall,  one  of  the  judges  of 
said  court,  at  the  court-room,  for  an  order  dismissing  said  cause  for 
failure  of  plaintiff  to  comply  with  the  order  to  give  security  for  costs. 
Affidavits  will  be  used  in  support  of  said  motion. 

Dated  March  5,  i898. 

Joseph  Story,  Defendant's  Attorney. 

c.  Motion/ 

Form  No.  6527.* 

(  Title  of  court  and  cause  as  in  Form  No.  6525.) 
Defendant  moves  that  this  cause  be  dismissed  for  failure  of  plain- 
tiff to  comply  with  the  order  to  give  security  for  costs, 

Joseph  Story,  Defendant's  Attorney. 

d.  The  Order.* 

1.  Where   an   order   nisi   is   granted  4.  For  forms  of  motions,  generally, 
and  security  is  not  filed  until  after  the  consult  the  title  Motions. 
expiration  of  the  time  therein   limited,  6.  Ohio.  —  Bates'  Anno.  Stat.  (1897), 
the  practice  is  to  refuse  to  dismiss  the  §  5341. 

complaint  if  the  security  be  filed  at  any  6.  For  statutes  relating  to  dismissal 
time  before  the  order  be  made  abso-  for  failure  to  file  security  see  as  fol- 
iate.    Cornuel  v.  Heinze,  67  Hun  (N.  lows: 

Y.)  652,  51  N.  Y.  St.   Rep.  652;  Robin-  Alabama.  — C\\.  Code  (1886),  §  2858. 

son    V.    Meyer,   25    Ark.    79;    King   v.  Arizona. — Rev.  Stat.  (1887),  §  906. 

Jackson,  25   Neb.  467;  Pflaum  v.  Grin-  Arkansas.  —  Sand.  &  H.  Dig.  (1894), 

berg,    5    Heisk.   (Tenn.)   220;    Kyle  v.  §  782. 

Stinson,   13    Smed.    &    M.  (Miss.)  301;  California.  —  Code  Civ.  Proc.  (1897),. 

Snowden  v.  McDaniel,  7  Mo.  313.  §  1037. 

2.  For   forms   of  notices,   generally,  Colorado, —  Mills' Anno.  Stat.  (1891),, 
consult  the  title  Motions.  §675. 

S.  Ohio.  —  Bates'  Anno.  Stat.  (1897).         Delaware.  —  Rev.     Stat.     (1893),      p.. 
§  5341.  792- 

787  Volume  5. 


6528.  COSTS.  6529. 

(1)  Dismissing  Suit. 
(a)  Order  JVisi. 

Form  No.  6528." 

(Title  of  court  and  cause  as  in  Form  No.  6^90.^ 

Upon  reading  and  filing  the  affidavit  of  Joseph  Story,  verified  the 
third  day  oi  April,  iS97,  and  {enumerating  the  several  papers  on  which 
the  motion  was  based^,  and  after  hearing  y^^^,^  Story,  of  counsel  for  the 
defendant,  and  Jeremiah  Mason,  of  counsel  for  the  plaintiff  (or  and 
after  reading  and  filing  affidavit  or  admission  of  due  service  of  notice  of 
this  motion  and  no  one  appearing  in  opposition).  Ordered, 

I.  That  plaintiff's  complaint  herein  be  and  hereby  is  dismissed 
with  costs  of  the  action,  unless  plaintiff  shall  file  security  for  costs 
herein  according  to  the  order  of  the  seventh  day  of  April,  iS97,  and 
also  pay  the  costs  mentioned  in  said  order  within  fve  days  from  the 
date  of  service  of  this  order. 

II.  That  plaintiff  pay  {concluding  as  in  Form  No.  6Jf95). 

{F)  Absolute  Order. 

Form  No.  6529.' 

In  the  Superior  Court  of  the  City  and  County  of  San  Francisco,  State 
of  California. 

Present:  Hon.  John  Marshall,  Judge. 

JO  n     oe,  P^'"  '   >      y  Order  Dismissing  Action  for   Failure  to 

Richard  X!"def endant.  )  ^"^  ^^^^^^^  ^^^  C^^^^' 

Upon  reading  and  filing  the  affidavit  of  Joseph  Story,  verified  the 
second  day  of  May,  i897,  from  which  it  appears  that  the  plaintiff  in 
this  action  is  a  nonresident;  that  a  notice  requiring  said  plaintiff  to 
furnish  security  for  costs  was  served  upon  him  by  the  defendant's 

District  of  Columbia.  —  Comp.    Stat.  North  Dakota.  —  Rev.  Codes  (1895), 

(1894),  c.  55,  P  30.  §  5599. 

Florida.  —Rev.  Stat.  (1892),  ^  1301.  Ohio.  —  Bates'  Anno.  Stat.   (1897),  § 

Idaho.  —  Rev.  Stat.  (1887),  §  4916.  5341. 

Illinois.  —  Starr    &    C.    Anno.    Stat.  Oklahoma. — Stat.  (1893),  §  4833. 

(1896),  c.  33,  §  3.  Oregon.  —  Hill's  Anno.  Laws  (1892),  § 

/«<Aa«a. -*- Horner's    Stat.   (1896),    §  2063. 

589.  Rhode  Island.  —  Gen.   Laws  (1896),  c. 

Iowa.  —  Code  (1897),  p  3848.  247,  §  4. 

Kentucky. —  Bullitt's  Civ.  Code  (1895),  Texas. — Rev.  Stat.  (1895),  art.  1440. 

§  617.        '  Utah.—^&v.  Stat.  (1898),  ^  3355. 

Maryland.  —  Pub.  Gen.   Laws  (1888),  Wyoming.  —  Rev.  Stat.  (1887),  §  2688. 

art.  24,  §  9.  1.  New    York.  —  Code   Civ.   Proc,  § 

Missouri.  —  Rev.  Stat.  (1889),  §  2915.  3277  (Birds.   Rev.  Stat.  (1896),  p.   720, 

Montana.  —  Code  Civ.   Proc.  (1895),  ^  72). 

§1872.  2.  California.  —  Code      Civ.       Proc. 

N^ebraska.  —  Comp.    Stat.    (1897),   §  (1897),  §  1037. 

6209.  See  also  the  following  statutes: 

New  Mexico.  —  Comp.  Laws  (1884),  §  Idaho.  —  Rev.  Stat.  (1887),  §4916. 

1843.  Montana.  — Code  Civ.  Proc.  (1895),  § 

New  York.  —  Code  Civ.  Proc,  §3277  1872. 

(Birds.  Rev.  Stat.  (1896),  p.  720,  §  72).  Utah.  —  YL&\.  Stat.  (1898),  §  3355. 

788  Volume  5. 


6530.  COSTS.  6532. 

attorney  on  the  first  day  of  April,  i897,  and  that  thirty  days  have 
elapsed  since  the  service  of  such  notice  and  yet  no  security  for 
costs  has  been  filed;  now,  after  htdLv'xng  Joseph  Story,  of  counsel  for 
the  defendant,  and  Jeremiah  Mason,  of  counsel  for  the  plaintiff,  in 
opposition,  upon  motion  of  counsel  for  the  defendant. 

Ordered:  That  the  complaint  herein  be  and  is  hereby  dismissed. 

Dated  May  3,  iS97.  John  Marshall,  Judge. 

Form  No.  6530.' 

(  Title  of  court  and  cause  as  in  Form  No.  SJfiO^ 

Upon  reading  the  orders  of  this  court  entered  the  first  day  of 
April,  xWK,  and  the  twenty-fifth  day  of  April,  iS97,  and  upon  reading 
and  filing  the  affidavit  oi  Joseph  Story,  verified  the  first  day  of  May, 
1 897,  by  which  it  appears  that  the  plaintiff  has  not  complied  with  the 
requirements  of  the  orders  above  mentioned;  now,  after  hearing 
Joseph  Story,  of  counsel  for  the  defendant,  and  Jeremiah  Mason,  of 
counsel  for  the  plaintiff,  upon  motion  of  the  defendant,  ordered: 

I.  That  the  complaint  of  the  plaintiff  herein  be  and  is  hereby 
dismissed,  and  that  judgment  be  entered  in  favor  of  the  defendant 
accordingly. 

II.  That  plaintiff  pay  (concluding  as  in  Form  No.  6495), 

Form  No.  6531.* 
John  Doe 

against 
Richard  Roe. 

Upon  reading  the  suggestion  of  the  defendant,  entered  upon  the 
record  the  twenty- first  day  of  April,  iS97,  and  the  order  to  file 
security  made  herein  on  the  same  day  and  date,  and  it  appearing 
that  sixty  days  from  said  date  have  elapsed,  and  that  the  plaintiff  has 
neither  proved  residence  nor  filed  security  for  costs  according  to  the 
statute,  either  within  said  sixty  days  or  afterward  up  to  the  oresent- 
time. 

Be  it  ordered,  that  this  action  be  and  is  hereby  dismissed. 

(2)   Denying  Motion  Where   Security  is  Filed  After. 
Expiration"  of  Time. 

Form  No.  6532. 
John  Doe 
against 
Richard  Roe. 

The  motion  of  the  defendant  to  dismiss  the  petition  in  this  cause 
for  failure  to  comply  with  an  order  made  herein  on  the  tenth  day  of 
April,  iS97,  requiring  him  to  file  security  for  costs,  as  prescribed  by 
law  within  fifteen  days,   and  in   default  thereof  providing  that  his 

1.  JVew   York.  —  Code  Civ.   Proc,   §        2.    Virj^nia.  —  Code  (1887),  §  3539. 
3277  (Birds.   Rev.  Stat.  (1896),  p.  720,  West  FiV^mja.  —  Code  (1891),  c.  138, 

§72).  ^2. 

789  Volume  5. 


6533.  COSTS.  6533. 

action  be  dismissed,  came  on  for  hearing,  and  it  appearing  that  said 
plaintiff  has  since  the  expiration  of  sa.\6.  fifteen  days  filed  due  security 
for  costs,  said  motion  is  overruled  and  denied. 


II.  SUITS  IN  FORMA  PAUPERIS. 

1.  Application  for  Leave  to  Sue. 

a.  In  General. 

Form  No.  6533.1 

In  the  Supreme  Court  of  the  District  of  Columbia. 
John  Doe,  plaintiff,      ) 

against  V  No.  112. 

Richard  Roe,  defendant.  ) 

To  the  Supreme  Court  of  the  District  of  Columbia  holding  an  Equity 
Court: 
The  petition  of  your  petitioner  respectfully  showeth: 

I.  That  your  petitioner  having  filed  his  bill  in  this  honorable  court 
against  said  defendant,  thereby  setting  forth  that  (^Here  state  concisely 
the  substance  of  the  billy 

II.  That  your  petitioner  is  not  worth  twenty-five  dollars  in  all  the 
world,  his  wearing  apparel  and  the  matters  in  question  in  this  cause 
only  excepted,  and  that  he  is  utterly  unable  to  prosecute  his  said 
suit  unless  he  be  permitted  to  do  so  in  forma  pauperis. 

III.  Wherefore  your  petitioner  prays  that  he  may  be  permitted  to 
prosecute  his  said  suit  in  forma  pauperis,  and  that  he  may  have  the 
necessary  writs  and  process  without  costs  or  charge  for  the  same, 
and  that  there  may  be  assigned  to  him  learned  counsel,  which  shall 
give  their  counsel  nothing  taking  for  the  same,  and  that  there  may 
be  appointed  in  his  behalf  attorneys  and  all  other  officers  requisite 
and  necessary  to  be  had  for  the  speed  of  the  said  suit  to  be  had  and 
made,  which  shall  do  their  duties  without  any  reward  for  their  coun- 
sels, help  and  business  in  the  same.  And  your  petitioner  requests 
that  Jeremiah  Mason,  Esquire,  be  assigned  to  him  as  solicitor  and 
counsel  in  said  cause. 

And  this  your  petitioner  will  ever  pray,  etc. 

John  Doe. 

I,  Jeremiah  Mason,  counsellor-at-law  of  the  Supreme  Court  of  the 
District  of  Columbia,  do  hereby  certify  that  I  have  examined  the 
cause  upon  which  the  plaintiff's  bill  herein  is  based,  and  I  conceive 
that  the  plaintiff  has  just  cause  to  be  relieved  touching  the  matter  of 
this  petition,  and  for  which  he  has  exhibited  his  bill. 

Dated  May  6th,  1 857.  Jeremiah  Mason. 

1.  District  of  Columbia. —  Comp.  Stat.  Petition  of  iLxXeadAnX  in  forma  pauperis 
(1894),  c.  55,  §  32.  is  similar,  save  that  it  does  not  state 

New  fersey. —  Gen.    Stat.    (1895),    p.     the  contents  of  the  bill. 
2598,  §  368,  et  seq. 

790  Volume  5. 


6534.  COSTS.  6636. 

Form  No.  6534. 

(KaiT.  Gen.  Stat.  (1889),  §  4684.)* 
State  of  Kansas,  \ 
Cowley  County.    ) 
John  Doe,  plaintiff,       ) 

against  >■  In  the  District  Court  of  said  County. 

Richard  Roe,  defendant.  ) 

I  do  solemnly  swear  that  the  cause  of  action  set  forth  in  the  peti- 
tion hereto  prefixed  is  just,  and  I  do  further  swear  that  by  reason  of 
my  poverty  I  am  unable  to  give  security  for  costs. 

John  Doe. 
Subscribed  and  sworn  to  before  me  this  twenty-first  day  of  April, 
1 897.  Abraham  Kent, 

Notary  Public,  Cowley  County. 


f.  1  ''• 


Form  No.  6535, 

State  of  Illinois, 
County  of  La  Salle. 

John  Doe,  being  duly  sworn,  deposes  and  says  that  he  is  desirous  of 
commencing  suit  in  the  Circuit  Court  of  said  county  of  La  Salle 
against  Richard  Roe;  that  he  is  a  poor  person,  and  unable  to  prosecute 
his  suit  in  this  behalf  and  to  pay  the  costs  and  expenses  thereof,  and 
that  he  has  reason  to  believe,  and  does  believe,  that  his  cause  of 
action  for  which  he  desires  to  bring  suit  is  a  meritorious  one. 

John  Doe. 
Subscribed  and  sworn  to  before  me  thXs  fifth  day  of  May,  i897. 

Abraham  Kent, 
Notary  Public,  La  Salle  County. 

Form  No.  6536. 

(Miss.  Anno.  Code  (1892),  §  870.) 

In  the  Circuit  Court  for  the  County  of  De  Soto. 
John  Doe,  plaintiff, 

against 
Richard  Roe,  defendant. 
State  of  Mississippi,  ) 
County  of  De  Soto.  \ 

I,  John  Doe,  do  solemnly  swear  that  I  am  a  citizen  of  the  state  of 
Mississippi,  and  because  of  my  poverty  I  am  not  able  to  pay  the  costs 
or  give  security  for  the  same  in  the  suit  {describing  if)  which  I  have 

1.  This  same  form  is  set  out  in  Okla.  record.  Where  the  court  is  in  session, 
Stat.  (1893),  §  4478,  and  substantially  the  affidavit  used  is  substantially  like 
the  same  form  is  sufficient  under  Mont,  that  set  out  in  Form  No.  6536.  See 
Code  Civ.  Proc.  (1895),  §  1873.  similar  statutes  as  follows: 

2.  Illinois.  —  Starr  &  C.  Anno.  Stat.  Colorado.  —  Mills'  Anno.  Stat.  (1891), 
(1896),  c.  33,  par.  6.  §  676. 

This  form  of  affidavit  is  used  where        /Kentucky.  —  Gen.    Stat.     (1888),    c. 
the  plaintiff  makes  application  prior  to     26,  §  i. 
the  convening  of  the  term  of  a  court  of 

791  Volume  5. 


6537.  COSTS.  6537. 

begun  (or  which  I  atn  about  to  commence),  and  that,  to  the  best  of  my 
belief,  I  am  entitled  to  the  redress  which  I  seek  by  such  suit. 

John  Doe. 
Subscribed  and  sworn  to  before  me  this  seventh  day  of  May,  i897. 

Abraham  Kent, 
Clerk  De  Soto  Circuit  Court. 

Form  No.  6537.' 
Supreme  Court,  City  and  County  of  New  York. 
In  the  Matter  of  the  Application  of 

John  Doe 
for  Leave  to  Sue  as  a  Poor  Person. 
To  the  Supreme  Court  of  the  State  of  New  York. 
The  petition  of  John  Doe  respectfully  shows: 

I.  That  he  resides  in  the  city,  county  and  state  of  New  York. 

II.  That  he  has  a  cause  of  action  against  the  Third  Avenue  Rail- 
road Company,  arising  upon  this  state  of  facts,  namely:  That  upon 
the  third  day  of  November  last,  at  about  six  o'clock  in  the  afternoon, 
he  was  crossing  77«></ avenue  in  the  exercise  of  due  care,  and  by  the 
negligence  of  said  Third  Avenue  Railroad  Company's  servant,  to  your 
petitioner  unknown,  said  servant  then  being  in  control  and  manage- 
ment of  a  car  of  said  railroad  company,  then  being  propelled  by 
cable  power  upon  Third  avenue  in  said  city,  your  petitioner  was 
struck  by  said  cable  car  and  grievously  injured,  wholly  without  fault 
or  negligence  on  his  part.^ 

III.  That  your  petitioner  desires  to  begin  an  action  in  this  court 
against  said  Third  Avenue  Railroad  Company  for  the  above  cause. ^ 

IV.  That  your  petitioner  is  not  worth  one  hundred  dollars  besides 
the  wearing  apparel  and  furniture  necessary  for  himself  and  family 
and  the  subject  matter  of  this  action,  and  is  unable  to  prosecute  this 
action  unless  allowed  to  do  so  as  a  poor  person.* 

V.  That  your  petitioner  is  a  common  day-laborer,  and  is  obliged 
to  earn  his  livelihood  by  that  means  alone,  and  that  for  many  months 
past  he  has  been  unable  to  work  owing  to   injuries  received  in  the 

1.  This  form  is  drawn  under  Birds,  or  intended  to  be  brought,  must  be 
Rev.  Stat.  N.  Y.  (1896),  p.  2219,  §  14.         stated    in    the    petition.     Birds.    Rev. 

In  several  other  states  the  statute  is  Stat.    N.    Y.    (1896),    p.    2219,  §  14.    A 

substantially  the  same,  the  chief  differ-  copy  of  the  complaint  may  be  set  out 

ence  being  in  the  amount  that  petitioner  or  annexed  and  referred  to;  and  if  not 

is  worth.     See  for  example  the  follow-  so  set  out,  the  nature  of  the  injuries 

ing:  should  be  specified. 

Arkansas.  —  Sand.  &   H.  Dig.  (1894),         3.  Where  an  action  has  been  begun, 

§  799.  this  paragraph  should  read:  "That  your 

Colorado.  —  Mills'  Anno.  Stat.  (1891),  petitioner  has  begun  an   action  against 

§  676.  said  Third  Avenue  Railroad  Company  for 

Illinois.  —  Starr    &    C.    Anno.    Stat,  the  above  cause,"  and  should  state  the 

(1896),  c.  33,  par.  5.  condition  of  the  case,  showing  that  there 

Indiana.  —  Horner's  Stat.  (1896),  §  260.  has  been  no  laches  in  applying  for  leave 

Missouri.  —  Rev.  Stat.  (1889),  §^5  2918,  to  sue  as  a  poor  person. 
2919.  4.  This    paragraph    is    required    by 

New  Mexico. — Comp.    Laws    (1884),  Birds.   Rev.   Slat.  N.  Y.  (1896),  p.  2219, 

§  1844.  §  14,  subs.  2. 

2.  The  nature  of  the  action  brought, 

"lOa  Volume  5. 


6538.  COSTS.  6538. 

above  stated  manner  by  the  fault  and  negligence  of  said  company, 
and  he  has  now  become  ahd  is  impoverished. 

VI.  That  no  previous  application  for  leave  to  sue  as  a  poor  person 
has  been  made  herein.^ 

Wherefore  your  petitioner  prays  leave  to  prosecute  the  Third 
Avenue  Railroad  Company  as  a  poor  person,  and  further  that  the  court 
will  assign  him  attorney  and  counsel  for  that  purpose. 

January  1,  iS98.  John  Doe. 

City  and  County  of  New  York,  ss. 

John  Doe,  being  duly  sworn,  says  that  he  has  read  the  foregoing 
petition,  and  knows  the  ^contents  thereof,  and  that  the  same  is  true 
to  his  own  knowledge,  except  as  to  the  facts  therein  stated  to  be 
alleged  upon  information  and  belief,  and  as  to  those  facts,  he  believes 
it  to  be  true. 

John  Doe^ 

Sworn  to  before  me  thisy?rj/  day  of  January,  iS98. 

Abraham  Kent, 
Notary  Public,  New  York  County. 

I,  Jeremiah  Mason,  of  the  city,  county  and  state  of  New  York^ 
counsellor-at-law,  do  hereby  certify  that  I  have  examined  the  cause 
stated  in  the  above  petition,  and  am  of  the  opinion  that  the  applicant 
has  a  good  cause  of  action  therein. 

January  1,  iS98  Jeremiah  Mason? 

Form  No.  6538/ 

hfecklenburg  County:  —  In  the  Superior  Court. 

John  Doe    ) 

against      >■  Application  to  Sue  as  a  Pauper. 
Richard  Roe.  ) 

To  Hon.  John  Marshall,  Judge  (or  ClerkY  of  Superior  Court,  Mecklen- 
burg County: 

This  is  to  certify:  ist.  That  I  have  examined  the  case  of  the 
plaintiff  in  the  above  entitled  action,  and  believe  that  he  has  a  good 
and  meritorious  cause  of  action  in  fact  and  law. 

2d.  That  I  will  prosecute  said  action  as  his  counsel  without  any  fee 
or  reward  whatever. 

Jeremiah  Mason,  Attorney.® 

1.  This  paragraph  is  required  only  4.  North  Carolina.  —  Code  Civ.  Proc. 
when  an  ex  parte  application  is  made.  (1891),  §  210. 

2.  The  petition  must  be  verified  by  6.  To  Whom  Made.  —  The  application 
the  applicant's  affidavit,  unless  the  ap-  may  be  made  either  to  the  judge  or  to 
plicant  is  an  infant  under  the  age  of  the  clerk  of  the  supreme  court,  and  the 
fourteen  years,  and  in  that  case  by  the  authority  of  the  clerk  to  grant  the  per- 
affidavit  of  his  guardian  appointed  in  mission  to  sue  as  a  pauper  is  not 
said  action.  Birds.  Rev.  Stat.  N.  Y.  restricted  to  the  limits  of  his  authority 
(1896),  p.  2219,  §  14.  as    an    officer    of    the   probate    court. 

3.  The  petition  must  be  supported  by  N.  Car.  Code  Civ.  Proc.  {1891),  ^  210; 
a   certificate  of  a   counsellor-at-law  to  Rowark  v.  Gaston,  67  N.  Car.  291. 

the  effect  that  he  has  examined  the  6.  Certifleate  of  Coiuuel.  —  The  code 
case,  and  is  of  the  opinion  that  the  ap-  does  not  require  a  certificate  of  counsel 
olicant  has  a  good  cause  of  action,  that  the  plaintiff  has  a  good  cause  of 
Birds.  Rev.  Stat.  (1896),  p.  2219,  §  14.         action,  but  merely  that  he  shall  prove 

793  Volume  5. 


6539.  COSTS.  6540. 

Mecklenburg  County:  —  ss. 

John  Doe,  being  sworn,  says:  That  he  is  unable  to  give  sureties,  or 
make  the  deposit  required  by  law,  to  enable  him  to  prosecute  the 
above  action  against  the  defendant,  Richard  Roe  above  named,  and 
if  required  so  to  do,  could  not  prosecute  his  said  action.  He  there- 
fore prays  that  he  may  be  allowed  to  sue  in  said  action  as  a  pauper. 

John  Doe. 
Sworn  before  me  this  fifth  day  of  May,  1 897. 

Abraham  Kent,  Notary  Public. 

Form  No.  6539.* 

State  of  Tennessee,  ) 
County  of  Smith.     ) 

I,  John  Doe,  do  solemnly  swear  that  owing  to  my  poverty  I  am  not 
able  to  bear  the  expenses  of  the  action  which  I  am  about  to  com- 
mence in  the  Chancery  Court  of  Smith  county  against  Richard  Roe, 
and  that  I  am  justly  entitled  to  the  redress  sought,  to  the  best  of  my 
belief. 

John  Doe. 

Sworn  and  subscribed  before  me  xhis  fifth  day  of  March,  iS98. 

John  Hancock,  Clerk. 

Form  No.  6540.* 

•^  a   '  in  t         '        V  -^^^^^^'^^  Court  of  Freestone  County, 

D-i     voa^r     A     4-t  October  Term,  i%97. 
Richard  Roe, ^  defendant.  )  ' 

John  Doe,  being  duly  sworn,  says  that  he  is  the  plaintiff  in  the 

above  entitled  case,  and  that  he  is  too  poor  to  pay  the  costs  of  court, 

and  is  unable  to  give  security  therefor. 

John  Doe. 

Subscribed  and  sworn  to  before  me  this  sixth  day  of  October,  iS97. 

Norton  Porter, 

Notary  Public,  Freestone  County. 

this  fact  by  one  or  more  witnesses.  N.  ized  to  allow  a  person  to  sue  in  forma 
Car.  Code  Civ.  Proc.  (1891),  §  210.  And  pauperis  should  do  so,  at  least  in 
it  has  been  held  that  his  own  affidavit  general,  without  such  certificate.  The 
is  sufficient  proof  of  the  fact,  at  least  in  act,  however,  is  only  directory,  and 
so  far  that  where  the  clerk  has  allowed  the  matter  is  necessarily  entirely  in  the 
the  plaintiff  to  sue  in  forma  pauperis  discretion  of  the  judge  or  clerk, 
merely  on  his  own  affidavit,  setting  out  1.  Tenn.  Code  (1896),  §4928,  where 
the  facts  required  by  statute,  and  that  a  statutory  form  will  be  found, 
he  had  a  good  cause  of  action,  the  2.  Texas. —  Rev.  Stat.  (1895),  art.  1442. 
court  has  refused  to  dismiss  his  suit.  Sufficient  Affidavit.  —  An  affidavit 
Sumner  v.  Candler,  74  N.  Car.  265.  which  states  that  plaintiff  is  unable  to 
But  a  certificate  of  counsel  has  been  give  security  for  or  to  make  a  deposit 
held  sufficient  proof  of  a  good  cause  of  sufficient  to  cover  all  the  costs,  but 
action.  Miazza  v.  Calloway,  74  N.  that  he  cannot  swear  that  he  is  unable 
Car.  31.  And  further  the  rule  has  been  to  pay  the  costs  as  they  accrue,  and 
laid  down  in  Brendle  v.  Heron,  68  N.  that  he  has  paid  all  accrued  costs  ex- 
Car.  496,  that  while  this  section  of  the  cept  a  small  balance,  to  cover  which 
act  does  not  expressly  require  that  he  has  made  a  deposit  with  the  clerk, 
plaintiff  shall  have  a  certificate  of  an  is  a  sufficient  answer  to  the  rule  for 
attorney  to  the  effect  that  he  has  a  good  costs  under  this  statute.  Long  v.  Mc- 
cause  of  action,  yet,  upon  a  fair  con-  Cauley,  (Tex.  1887)  3  S.  W.  Rep.  689. 
struction  of  the  act,  no  officer  author-  3.  The  affidavit  should  give  the  proper 

794  Volume  5. 


6541.  COSTS.  6542. 

b.  Where  Application  is  First  Made  on  Appeal 

Form  No.  6541.' 

Georgia^  Bibb  County. 

In  the  Superior  Court  of  -said  County, 
John  Doe 
against 
Richard  Roe. 

I,  John  Doe,  plaintiff  in  the  above  cause,  do  swear  that  I  am 
advised  and  believe^  that  I  have  a  good  cause  of  appeal  in  the  above 
stated  case,  and  that  owing  to  my  poverty^  I  am  unable  to  pay  the 
costs  or  give  security. required  by  law  in  cases  of  appeal. 

John  Doe. 
Sworn  to  and  subscribed  before  me  this  tenth  day  of  May,  i897. 

Norton  Porter, 
N.  P.  and  Ex-Officio  J.  P. 

c  Upon  Claim  for  Tax  Seizure. 

Form  No.  6542. 

(2  Ga.  Code  (1895),  §  4618.) 

Georgia,  Bibb  County. 

I,  John  Doe,  do  swear  that  I  do  not  interpose  this  claim  for 
delay  only;  that  I  bona  fide  claim  the  right  and  title  to  the  same; 
that  I  am  advised  and  believe  that  the  claim  will  be  sustained;  and 
that  from  poverty  I  am  unable  to  give  bond  and*  security  as  now 
required  by  law. 


(J^urat  as  in  Form  No.  65J^1.) 


John  Doe. 


names  of  all  the  parties,  but  failure  so  being  duly  sworn  deposeth  and  saith 
to  state  the  names  must  be  taken  ad-  that  he  is  advised  and  believes  that  he 
vantage  of  by  motion  pointing  out  the  has  a  good  cause  of  appeal  and  that 
defect  in  the  afl5davit,  and  not  by  a  he  is  unable  to  give  security  on  enter- 
simple  motion  to  dismiss.  Hubby  v.  ing  the  same,"  was  held  insufficient 
Harris,  63  Tex.  456.      ,  both  for  the  above  reason  and  because 

1.  Georgia.  —  2  Code  (1895),  §  4465,  it  did  not  state  that  he  was  unable  to 
as  amended  act  Dec.  21,  1897.  give  the  security   required   by  law   in 

2.  Where  the  words   "he  is  advised  cases  of  appeal.     Gibbons  z/.  McComb, 
and  believes  that  he  has  a  good  cause  3  Ga.  252. 

of  appeal"  were  omitted,  the  affidavit  Affidavit  by  Trustee.  —  This   form   of 

was  held  insufficient,  but  it  was   said  affidavit  would  not  be  sufficient  where 

to  be  the  privilege  of   the  plaintiff  to  the  appeal  was  prosecuted   by  a  trus- 

move  to  reinstate  the  case  by  amend-  tee.     In  such  case  the  affidavit   should 

ing   the   affidavit   at   any   time  within  state  that   the    "  inability   to   give    se- 

the   term.     Holsenbach   v.  Martin,  28  curity  arose   from    the  poverty  of   the 

Ga.  73.  trust  estate."     Scott  v.  Turpin,  30  Ga. 

3.  An  affidavit  which  omits  the  words  964. 

"owing  to  his  poverty"  is  not  a  suffi-  4.  A  similar  section  of  the   Georgia 

cient  comnliance  with  the  statute.     An  code  has  been  amended  so  that  in  the 

affidavit  reading  as  follows:  "Person-  affidavit    the    word    "or"   is    used    in 

ally  came  before  meJoAn  Gibbons,  who  place  of  "  and."     See  supra,  note  i. 

795  Volume  5. 


6543.  COSTS.  6544. 

2.  Order, 
a.  Of  Reference. 

Form  No.  6543.' 

At  a  Special  Term  of  the  Supreme  Court  held  at  the  County  Court- 
house in  New  York  City  on  the  second  day  of  January,  iS96. 

Present:  Hon,  JoAn  Marshall,  Justice. 
In  the  Matter  of  the  Petition  of 
John  Doe 
for  Leave  to  Prosecute  as  a  Poor  Person. 

Upon  reading  and  filing  the  annexed  petition  of  John  Doe,  verified 
on  the  first  day  of  January,  i896,  and  the  certificate  of  Jeremiah 
Mason,  his  counsel,  dated  the  first  day  of  January,  i896,  and  it 
appearing  to  the  satisfaction  of  the  court  that  the  facts  alleged  by 
the  petitioner  are  true  and  that  said  petitioner  has  a  good  cause  of 
action,  and  upon  hearing  Jeremiah  Mason,  of  counsel  for  the  peti- 
tioner, and  Joseph  Story,  of  the  counsel  for  the  defense  in  opposition,* 
Ordered : 

I.  That  the  matter  be  referred  to  Daniel  Webster,  Esquire, 
counselor  of  this  court,  to  examine  the  facts  and  circumstances  of 
the  case  set  out  in  said  petition,  and  to  report  whether  in  his  opin- 
ion said  petitioner  has  a  good  cause  of  action  against  The  Third 
Avenue  Railroad  Company  named  therein,  cognizable  in  and  within 
the  jurisdiction  of  this  court,  and  whether  said  petitioner  is  entitled 
to  prosecute  the  said  action  as  a  poor  person. 

II.  That  if  said  referee  is  satisfied  that  said  petitioner  is  entitled 
to  prosecute  as  a  poor  person  and  that  he  has  reasonable  grounds  to 
prosecute  the  action  in  this  court,  that  he  report  the  name  of  a 
proper  person  for  assignment  as  attorney  and  counsel  in  the  prose- 
cution of  such  action. 

Enter:     /.  M.,  J.  S.  C. 

b.  Granting  Leave  to  Sue. 

Form  No.  6544. 

{Commencing  as  in  Form  No.  65Jf2,  and  continuing  down  to  *) 
Ordered: 

I.  That  the  petitioner  be  allowed  to  prosecute  as  a  poor  person, 
and  that  he  have  assigned  to  him  attorneys,  counsel,  and  all  other 
officers  requisite  for  prosecuting  his  said  suit,  who  shall  do  their 
duty  therein  without  reward  or  compensation  for  the  same. 

II,  Th2i\.  John  Jay,  Esquire,  is  hereby  assigned  to  him  as  attorney 
and  counsel  for  that  purpose. 

Enter:     J.  M.,].  S.  C. 

1.  In  a  case  where  the  facts  are  not    poor  person  without   first  ordering  a 
fairly  within  the  view  of  the  court,  as  is     reference,  but  in  cases  not  of  this  class 
usually  the  case  in  actions  for  personal     the  court  will  issue  an  order  sometimes 
injuries  resulting  from  negligence,  the     on  an  ex  parte  application, 
court  will  not  grant  leave  to  sue  as  a 

796  Volume  5. 


6545.  COSTS.  6547. 

Form  No.  6545." 

Mecklenburg  County:  —  ss. 
John  Doe      \ 
against       >•  Order  Granting  Leave  to  Sue  as  a  Pauper. 
Richard  Roe.  ) 

In  the  above  entitled  action,  upon  the  certificate  and  affidavit 
above  set  forth,  it  is  Ordered: 

1st.  That  the  above  mxritdi  John  Doe  be  allowed  to  prosecute  his 
said  suit  as  a  pauper. 

2d.  That  no  officer^  shall  require  of  him  any  fee,  and  he  shall 
recover  no  costs. 

3d.  That  Jeremiah  Mason  be  assigned  to  him  as  counsel  to  prose- 
cute said  action. 

This  fifth  day  ol  May,  iS97. 

John  Marshall, 
Judge  (or  Clerk)  Superior  Court,^ 
County  of  Mecklenburg. 

Form  No.  6546.* 

It  is  ordered,  that  John  Doe  be  admitted  to  prosecute  his  suit 
against  Richard  Roe  in  forma  pauperis-,  3.n6.  Jeremiah  Mason  is  hereby 
appointed  counsel  in  his  behalf,  according  to  the  prayer  of  the  fore- 
going petition. 

John  Marshall, 
Judge  Freestone  County  Court. 

c.  Denying  Leave  to  Sue. 

Form  No.  6547. 

(^Title  of  court  and  cause  as  in  Form  No.  GSJfS.) 

Upon  reading  and  filing  the  petition  oi  John  Doe,  verified  tht  first 
ddiy  oi  January^  1 895,  and  the  certificate  ol  Jeremiah  Mason,  his  coun- 
sel, dated  the  first  day  oi  January,  iS96,  and  upon  reading  and  filing 
in  opposition  the  affidavits  of  Albert  J.  Elias  and  Michael  Murphy, 
both  verified  on  the  tenth  day  oi  January,  i896,  and  it  failing  to 
appear  to  the  satisfaction  of  the  court  that  the  facts  alleged  by  the 
petitioner  are  true  (or  it  appearing  that  this  motion  has  been  unreason- 
ably delayed  until  after  the  case  has  been  noticed  for  trial),  and  on  hear- 
ing y^/'^w/a^  Mason,  of  counsel  for  the  petitioner,  and  Joseph  Story, 

1.  North  Carolina.  —  Code  Civ.  Proc.  witnesses.  Draper  v.  Buxton,  90  N. 
(1891),  §§  210-212.  Car.  182. 

2.  A  plaintiff  suing  j«y^<jr»ja/>a«/^riV  3.  The  written  authority  of  a  judge 
must  pay  the  witnesses  whom  he  sum-  or  clerk  of  a  superior  court,  authorizing 
mons.  Only  officers  of  the  court  can  the  plaintiff's  suit  as  a  pauper,  must 
be  included  in  the  order  relieving  from  be  filed  with  the  clerk  and  he  will  issue 
costs.  Morris  v.  Rippy,  4  Jones  L.  summons.  N.  Car.  Code  Civ.  Proc. 
49  (N.  Car.)  533;   Bailey  v.  Brown,   105  (1891),  §  209. 

N.  Car.  127.  4.    Texas.  —  Rev.    Stat.   (1895),   arts. 

But  if  the  plaintiff  suing  in  forma     1109,  1164. 
pauperii'\%  successful   in  his  suit  he  is         No  caption  is  required,  as  the  judge's 
not  entitled  to  recover  the  costs  of  his     order  is  subscribed  to  the  petition. 

797  Volume  5. 


6548. 


COSTS. 


6549. 


of  counsel  for  the  defense,  in  opposition,  Ordered:  That  the  petition 
be  and  is  hereby  denied. 

Enter:     /.  M.,  J.  S.  C. 

d.  Annulling  Leavo  to  Sue. 

Form  No.  6548.' 

(  Tiile  of  court  and  cause  as  in  Form  No.  6543.^ 

Upon  reading  and  filing  the  affidavit  of  Richard  Roe,  verified  the 
tenth  day  oi  January,  iS96,  from  which  it  appears  that  John  Doe,  plain- 
tiff in  this  action,  has  been  guilty  of  improper  conduct  in  the  prose- 
cution thereof,  for  which  cause  it  is  proper  that  the  order  of  this 
court,  made  the  second  day  oi  January,  i896,  allowing  said  John  Doe 
to  prosecute  said  action  as  a  poor  person,  should  be  annulled,  and 
upon  reading  and  filing  proof  of  due  service  of  notice  of  this  motion 
to  Jeremiah  Mason,  attorney  for  the  defendant,  and  after  hearing 
Jeremiah  Mason,  of  counsel  for  the  defendant,  and  no  one  appearing 
in  opposition,  upon  motion  of  said  counsel  for  the  defendant,  Ordered: 
That  the  aforementioned  order  granting  leave  to  said  John  Doe  to 
prosecute  said  action  as  a  poor  person  be  and  the  same  is  hereby 
annulled. 

Enter:    /.  M.,  J.  S.  C. 

III.  TAXATION. 

1.  In  General. 

a.  Notice  of  Taxation.* 

Form  No.  6549.' 

To  Joseph  Story,  Esq.,  Attorney  for  Defendant'. 

Take  notice  that  the  foregoing  is  a  true  copy  of  the  plaintiff's  bill 


1.  New  York.  —  Code  Civ.  Proc,  § 
462  (Birds.  Rev.  Stat.   (1896),  p.  2220, 

§17). 

In  Mississippi  the  court  will  dismiss 
an  action  "  commenced  or  continued  on 
affidavit  of  poverty,  if  satisfied  that  the 
allegation  of  poverty  is  untrue  or  that 
the  cause  of  action  is  frivolous  and  ma- 
licious." Miss.  Anno.  Code  (1892),  § 
871. 

2.  Costs  are  taxed  by  the  clerk  upon 
notice  to  the  opposite  party  in  the  fol- 
lowing states: 

California.  —  Code  Civ.  Proc.  (1897), 
§  1033. 

Connecticut.  —  Gen.  Rules  Prac,  No. 
X,  §  16. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
198,  I  23. 

Michigan.  —  How.  Anno.  Stat.  (1882). 
§§  8996,  8997. 


Minnesota.  —  Stat.  (1894),  §  5505. 

Montana.  —  Code  Civ.  Proc.  (1895), 
§  1867. 

New  York.  —  Code  Civ.  Proc,  §  3263 
(Birds.  Rev.  Stat.  (1896),  p.  716,  §  58). 

North  Dakota.  —  Rev.  Codes  (1895), 

§  5585. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§556. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 

247,  §17. 

South  Carolina.  —  Code  Civ.  Proc, 
(1893).  §  326. 

Wisconsin. — Sanb.  &  B.  Anno.  Stat. 
(1889),  §  2927. 

For  a  letter  proposing  to  tax  a  bill  of 
costs,  which  was  held  not  a  notice  of 
taxation,  see  Brown  v.  Ferguson,  2 
How.  Pr.  (N.  Y.  Supreme  Ct.)  128. 

8.  Michigan.  —  How.  Anno.  Stat. 
(1882),  §  9002. 


798 


Volume  5. 


6550.  COSTS.  6551. 

of  costs  in  the  within  entitled  cause,  proposed  to  be  taxed,  and  of 
the  affidavit  of  disbursements,  required  by  law,  to  be  read  in  support 
thereof;  and  that  application  will  be  made  to  the  clerk  of  the  said 
court  to  tax  the  same,  at  his  office,  on  the  y?/M  day  of  May,  a.  d.  iW8, 
at  ten  o'clock  a.  m. 

Dated  this  thirtieth  day  of  April,  a.  d.  i89*. 

Jeremiah  Mason, 
Attorney  for  the  Plaintiff. 

Form  No.  6550. 

Take  notice  that  I  shall  present  a  bill  of  costs,  of  which  the  fore- 
going is  a  true  copy,^  to  the  clerk  of  this  court  for  adjustment,  at  his 
office  in  the  county  court-house,  in  the  village  of  Riverhead,  on  the 
twenty-fourth  day  of  May,  iS98,  at  ten  o'clock  in  the/(?r^noon  of  that 
day.^ 
May  18,  i&98.  Yours,  etc., 

Jeremiah  Mason, 
Attorney  for  Defendant  (or  Plaintiff). 
To  Joseph  Story,  Esq., 

Attorney  for  Plaintiff  {ox  Defendant).^ 

Form  No.  6551.* 

Circuit  Court,  Dane  County. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 
To  Jeremiah  Mason,  Attorney  for  Plaintiff'. 

Please  take  notice  that  the  defendant  in  the  above  entitled  action 
will  apply  to  the  clerk  of  the  aforesaid  court,  at  his  office  in  Madison, 
in  the  county  of  Dane  and  state  of  Wisconsin,  on  th&  fifth  day  of 
May,  A.  D.  1W8,  at  ten  o'clock  in  Xhe  forenoon,  to  tax  his  costs  and 
disbursements  in  said  action,  and  that  the  same  when  so  taxed  be 
inserted  in  the  entry  of  judgment  in  said  action. 

Yours,  etc., 
Joseph  Story,  Attorney  ior  Defendant. 

1.  A  copy  of  the  bill  of  eo«u  specifying  notice  is  then  sufficient.  N.  Y.  Code 
the  items,  with  the  disbursements  Civ.  Proc.,  §  3263  (Birds.  Rev.  Stat, 
stated   in  detail,  must  be  served  with     (i8g6).  p.  716.  ^  58). 

the   notice  of  taxation.      N.  Y.  Code  8.  ITpon  Whom  Served.  —  The    notice 

Civ.   Proc.,  §   3263  (Birds.  Rev.    Stat,  must  be  ser\'ed   uf>on   the  attorney  for 

(1896),    p.   716,    §  58);  Gildersleeve   v.  each  adverse  party  who  has  appeared, 

Halsey,  3  Sandf.  (N.  Y.)  756.  and    is     interested     in    reducing     the 

2.  riTe  dayt  notice  of  taxation  of  costs  amount  thereof.  N.  Y.  Code  Civ.  Proc., 
is  required  unless  all  the  attorneys  S  3263  (Birds.  Rev.  Stat.  (1896),  p.  716, 
serving  said  notice  and  served  with  said  §  58). 

notice  ceside  in  and  have  an  office  in        4.    IVisconsirt.  —  Sanb.   &  B.  Anno. 
the  same  town  or  city  where  the  bill  of    Stat.  (1889),  §  2927. 
costs     has    been    taxed.      Two    days' 

799  Volume  5. 


6552.  COSTS.  6553. 

b.  Proof  of  Right  to  Tax. 

(1)  Certificate  of  Judge. 

Form  No.  6552. 
(Precedent  in  Hudson  v.  Guttenberg,  9  Abb.  N.  Cas.  (Brooklyn  City  Ct.)  418.)' 

[At  a  Special  Term  of  the  City  CoxxrX.  of  Brooklyn  held  at  the  County 
Court-house,  on  iht  fifteenth  day  of  December,  188O. 

Present:  Hon.  Joseph  JVeilson,  C.  J. 
Charles  Hudson,  plaintiff, 
against 
Frederick  Guttenberg,  defendant. J^ 

On  reading  and  filing  affidavit,  I,  Joseph  Neilson,  chief  judge  of  the 
court,  do  hereby  certify  that  in  the  trial  of  the  above  action  before 
me  2  on  the  8th  day  oi  December,  1S8O,  three  separate  and  distinct 
causes  of  action  were  set  forth  in  the  complaint  and  separate  and  dis- 
tinct issues  joined  thereon,  and  that  the  jury  found  for  the  plaintiff 
on  the  second  cause,  and  for  the  defendant  on  the  first  and  third 
causes  of  action  set  forth  in  the  complaint;  and  I  do  therefore 
certify  that  the  defendant  is  entitled  to  two  bills  of  costs  against  the 
plaintiff  and  which  may  be  set  off  against  the  bill  of  costs  to  which 
plaintiff  is  entitled. 

jj\r. 

(2)  Affidavits.* 
(a)  By  Attorney,  of  Costs  and  Disbursements. 

Form  No.  6553. 

(Precedent  in  Burnham  v.  Hays,  3  Cal.  llt.f 

State  of  California,  County  of  San  Francisco. 

G.  W.  Beck,  one  of  the  attorneys  of  the  plaintiff  above  named, 
being  duly  sworn,  deposeth  and  saith,  that  the  items  of  the  foregoing 
bill  of  costs  are  correct,  to  his  best  knowledge  and  belief,  and  that 
the  disbursements  have  necessarily  been  incurred  in  the  action.  And 
further  saith  not. 

G.  IV.  Beck. 
Sworn  to  and  subscribed  before  me  on  the  26th  May,  \W2. 

H.  Marshall,  Clerk. 

1.  New  York.  —  Code  Civ.  Proc,  §  certificate  may  continue  from  this  point 
3248  (Birds.  Rev.  Stat.  (1896),  p.  711,  as  follows:  "on  the  «'^/4/-4  day  of  De- 
%  43).  cemher,   i8<Sb,  the    question    of    title   to 

2.  The  words  and  figures  enclosed  by  real  estate  was  raised  and  put  in   issue 
[  ]   will  not  be  found  in  the  reported  by  the  pleadings  therein,  and  came  in 
case,  but  have  been  added  to  render  question  on  the  trial.                 f.  N." 
the  form  complete.  4.  For  forms  of  affidavits,  generally, 

3.  Where  Title  to  Real  Property  is  In-  consultthetitle  Affidavits,  vol.  i,  p.  548. 
volved. —  Whereupon  the  trial  the  title  5.  This  affidavit  annexed  to  the  bill 
to  real  property  comes  in  question,  the  of  costs  was  held  to  be  sufficient. 

800  Volume  5. 


6564.  COSTS.  6555. 

Form  No.  6554.' 

State  of  Michigan,  ] 
County  of  Wayne,    f 

Jeremiah  Mason,  being  duly  sworn,  says  that  the  items  of  costs 
charged  in  the  foregoing  bill  of  costs,  as  disbursements,  have  actually 
been  paid,  or  the  liability  therefor  incurred,  and  were  necessary  and 
are  reasonable  in  amount;  that  the  witnesses  therein  named  were  in 
good  faith  made  to  attend  and  were  deemed  material  and  necessary, 
in  the  within  entitled  cause,  and  they  respectively  traveled  the  num- 
ber of  miles,  and  actually  attended  the  number  of  days  specified; 
thdiX.  John  Doe,  the  plaintiff  in  said  cause,  was  in  attendance  upon  said 
court  for  the  time  charged  for  the  purpose  of  being  sworn  as  a  wit- 
ness, and  not  to  assist  in  the  management  of  said  cause,  and  traveled 
the  number  of  miles  specified  in  said  bill  of  costs,  for  the  purpose  of 
giving  evidence;  and  that  the  copies  and  exemplifications  charged 
for  were  actually  and  necessarily  used,  or  necessarily  and  in  good 
faith  obtained  for  use. 

Jeremiah  Mason. 

Sworn  to  and  subscribed  before  me  this  fifth  day  of  May,  a.  d.  i%98. 

(seal)  Norton  Porter, 

Notary  Public,  Wayne  County, 

Form  No.  6555. 

(Precedent  in  Dallemand  v.  Swensen,  54  Minn.  33.)* 
State  of  Minnesota,    )  ^„ 

•         r  SS 

County  of  Hennepin.  ) 

Frank  R.  Hubachek  being  duly  sworn,  says  that  he  is  one  of  the 
attorneys  of  the  plaintiffs  in  the  above  entitled  action;  that  the  fore- 
going is  a  true  and  correct  statement  of  the  costs  and  disbursements 
of  said  plaintiffs  in  the  above  entitled  action,  and  that  all  the  items 
thereof  have  been  actually  and  necessarily  paid  or  incurred  therein, 
by  and  on  behalf  of  said  plaintiffs;  and  that  each  of  the  above  named 
witnesses  was  a  material-*  witness  for  the  plaintitfs  in  said  action  and 
was  sworn  and  testified,  and  that  he  necessarily  traveled  the  number 
of  miles  set  opposite  his  name  going  from  his  said  place  of  residence 
to,  and  returning  from  the  place  of  trial,  and  necessarily  attended 
the  number  of  days  set  opposite  his  said  name. 

Frank  R.  Hubachek. 

Subscribed  and  sworn  to  before  me  this  26th  day  oi  July,  i892. 

(seal)  Edith  A.  Saxton, 

Notary  Public,  Hennepin  County,  Minnesota. 

1.  Michigan.  —  How.  Anno.  Stat,  ance  with  his  notice  under  the  plea  of 
(1882),  §  9002.  the  general  issue  in  said  cause,  but  that, 

2.  This  form  of  affidavit  was  held  unexpectedly  to  deponent,  the  defend- 
sufficie.it.  ant  did  not  call  any  witnesses  on  the 

8.  The  following  clause,  to  wit:  "And  defense,  and  for  this  reason  it  became 

deponent  further  says,  that  a  number  of  unnecessary  to  call  such  witnesses  on 

said  persons  were  not  called  and  sworn  the  part  of  deponent,"  has  been  held  too 

in    the   case,    though   they    were   sub-  vague;    for   the    necessity   as   well   as 

poenaed,  or  their  attendance  procured,  the   materiality     must    clearly   app>ear 

in  good  faith, in  anticipation  of  a  defense  from  the  affidavit.     Gilbert  v.  Kennedy, 

to  be  made  by  the  defendant,  in  accord-  22  Mich.  5. 

5  E.  of  F.  P.— 51.  801  Volume  5. 


6556.  COSTS.  6556. 

Form  No.  6556.' 

Supreme  Court,  City  and  County  of  New  York, 

John  Doe.,  plaintiff, 
against 
Richard  Roe.,  defendant. 
City  and  County  of  New  York.,  ss. 

Jeremiah  Mason,  being  duly  sworn,  deposes  and  says:  * 

I.  That  he  is  attorney  for  the  plaintiff  in  this  action,  and  was  pres- 
ent as  counsel  at  the  trial  of  this  cause. 

II.  That  the  foregoing  disbursements  have  been  actually  made  or 
incurred  in  the  cause  of  this  action,  except  the  items  {specifying  them\ 
which  items  are  claimed  as  prospective  disbursements,  and  as  to 
these,  that  he  believes  them  as  stated  above  to  be  correct. 

III.  Thdit  Samuel  Short  wsi?,  summoned  as  a  witness  for  the  plain- 
tiff at  the  trial  of  this  cause  by  the  service  upon  him  of  a  subpoena; 
that  the  travel  fees  demanded  for  his  attendance  are  at  the  statutory 
rate  for  the  distance  oi  three  hundred  m\\t?,',  that  ssad  Samuel  Short 
resides  in  the  city  of  Albany,  where  he  was  served  with  the  subpoena. 

IV.  That  William  West  attended  the  trial  of  this  cause  as  a  witness 
for  the  plaintiff  at  his  request;  that  the  travel  fees  which  are  de- 
manded for  his  attendance  are  at  the  statutory  rate  for  the  distance 
of  twenty  miles;  that  said  William  West  resides  in  the  city  of  Yonkers. 

V.  That  the  said  Samuel  Short  and  William  West  were  respectively 
present  as  witnesses  at  the  trial  during  tzvo  days,  namely,  the  seventh 
day  of  May  and  the  eighth  day  of  May  last,  that  their  testimony  was 
{ox  was  believed  to  be^  material  to  the  cause  of  the  plaintiff  herein. 
That  the  distances  for  which  travel  fees  are  asked  are  the  distances 
by  the  usual  and  reasonable  route  from  their  respective  places  of 
residence  to  the  place  of  trial  and  return.  ^ 

1.  New   York.  —  Code   Civ.    Proc,  §  Oregon.  —  Hill's  Anno.    Laws  (1892), 

3267  (Birds.  Rev.  Stat.  (1896),  p.  717,  §  556. 

§  62).  South    Carolina.  — Code    Civ,     Proc. 

Taxation  is  by  the  clerk,  upon  affida-  (1893),  §  326. 

vits  similar  to  those  used  in  New  York  South    Dakota.  —  Dak.    Comp.    Laws 

in  the  following  states:  (1887),  §  5197. 

Alabama.  — Ci\.  Code  (1886),  ^  2855.  Utah.  —  Kcx.  Stat.  (1898),  §  3350. 

Arizona.  —  Rev.  Stat.  (1887),  §  912.  JVashington.  —  Ballinger's         Anno. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894),  Codes  &  Stat.  (i8g8),  §  5173. 

§  807.  Wisconsin.  —  Sanb.  &  B.  Anno,  Stat. 

California. — Code  Civ.  Proc.  (1897),  (1889),  §  2927. 

§  1033.  2.  The  affidavit  should  show  the  name 

Colorado.  —  Mills*  Anno.  Stat.  (1891),  and  place  of  residence  of  each  of  the 

§  692.  witnesses;  the  distances  they  severally 

Idaho.  —  Rev.  Stat.  (1887),  §  4912.  resided  from  the  place  of  trial  according 

Illinois.  —  Starr    &    C.    Anno.    Stat,  to  the  usual   traveled  route,   and    the 

(1896),  p.  1075,  par.  25.  number  of  miles  they  respectively  trav- 

Michigan. —  How.  Anno.  Stat.  (1882),  eled  as  such  witnesses  for  the  purpose 

§  9002.  of  getting  to  the  place  of  trial  and  re- 

"■Minnesota.  — Stat.  (1894),  §  5505.  turn  therefrom,  and  that  they  were  ma- 

Missouri.  —  Rev.  Stat.  (1889),  §  2941.  terial  and  necessary,  or  that  the  party 

Montana.  —  Code  Civ.    Proc.    (1895),  believed  them   to  be  so.      Wheeler  v. 

§  1867.  Lozee,  12  How.  Pr.  (N.  Y.  Supreme  Ct.) 

Nevada.  —  Gen.  Stat.  (1885),  §  3508.  446;  Taaks  v.  Schmidt,  25  How.  Pr.  (N. 

North  Dakota.  —  Rev.   Codes  (1895),  Y.  Supreme  Ct.)  340;  Hicks  z/.  Brennan, 

§  5585.  10  Abb.  Pr.  (N.  Y.  Supreme  Ct.)  304. 

802  Volume  5. 


6557.  COSTS.  6558. 

VI.  That  the  copies  for  papers  for  which  charge  is  made  above 
were  actually  and  necessarily  used  in  this  case  (or  necessarily  obtained 
for  use^. 

Joseph  Story. 
Sworn  to  before  me  this  15th  day  of  May,  i  W6. 

Abraham  Kent, 
Notary  Public,  New  York  County. 


>•  ss. 


Form  No.  6557.' 

State  of  South  Dakota, 
County  oi  Hughes. 

Jeremiah  Mason  came  personally  before  me,  and  having  been  first 
duly  sworn,  deposes  and  says  that  he  is  the  attorney  of  said  plaintiff 
in  the  above  entitled  action;  that  the  above  bill  and  items  of  costs 
and  disbursements  therein  are  just  and  correct,  and  have  been  or 
will  be  necessarily  incurred  in  said  action. 

Jeremiah  Mason. 

Subscribed  and  sworn  to  before  me  this^M  day  oi May,  i898. 

.         ^  Norton  Porter, 

y^^*"^)  Notary  Public,  Hughes  County. 

(J>)  By  Referee,  for  Reference  Fees. 

Form  No.  6558.* 

(^Title  of  court  and  cause,  and  venue  as  in  Form  No.  6556.^ 
Richard  Styles,  being  duly  sworn,  deposes  and  says: 

I.  That  he  was  appointed  referee  in  this  cause  by  consent  on  the 
Jlrst  day  of  April,  i&95. 

II.  That  in  the  necessary  business  of  such  reference  he  held  ffty- 
one  hearings  on  fifty-one  different  days,  as  here  tabulated  (^giving  dates 
in  full). 

III.  That  after  the  submission  of  the  controversy  deponent  neces- 
sarily spent  ten  days  in  examining  the  evidence  and  in  making  his 
report,  to  wit:     (^Here  set  out  the  days  in  full ^^ 

{Signature  and  jurat  as  in  Form  No.  6656. ) 

(f)  By  Witness,  for  Travel  Fees.^ 

1.  South  Dakota.  —  Dak.  Comp.  Laws  davit,  omitting  the  formal  parts,  is  as 
(1887),  §  5197,  follows: 

2.  If  there  is  any  controversy  as  to  'James  M.  Maxcy.  being  first  duly 
the  fee  taxed  for  reference,  the  best  sworn,  doth  depose  and  say,  that  he 
practice  is  to  present  an  affidavit  made  was,  in  the  year  eighteen  hundred  and 
by  the  referee  himself.  Shultz  v.  Whit-  forty,  a  deputy  of  Garret  Elkin,  who 
ney,  9  Abb.  Pr.  (N.  Y.  C.  PI.)  71.  was  then  sheriff  of  Sangamon  county. 

S.  The  affidavit  should  clearly  show  That  at  ihc  fune  term,  eighteen  hun- 

the   time  spent   by  the    referee  in  the  dred  and  forty,  a  writ  of  attachment 

business  of  the  reference,  and  that  this  issued  out  of  the  Supreme  Court  of  this 

time  was  necessarily  required.     Brown  State  directed  to  any  and  all  sheriffs  of 

V.    Windmuller,   36   N.   Y.    Super.   Ct.  all   counties   of    the   state   of   Illinois, 

Rep.  75.  against  fohn  Pearson,  to  answer  for  a 

4.  By   Sheriff    for    Travel    Feee.  —  In  contempt   of   said    Supreme  Court,    in 

People  V.  Pearson,  4   111.  286,   the  affi-  refusing  to  obey  a  peremptory  writ  of 

803  Volume  5. 


6559.  COSTS.  6560. 

Form  No.  6559.' 

(^Title  of  coprt  and  cause ^  and  venue  as  in  Form  No.  6556.) 
William  IFesl,  being  duly  sworn,  deposes  and  says  that  he  came  to 
JVew  York  from  Yonkers  to  attend  the  trial  of  this  cause  on  the 
seventh  day  of  May,  i8P^  as  a  witness  for  the  plaintiff,  and  at  his 
request,  and  that  he  would  not  have  come  to  the  city  of  New  York 
on  that  day  except  for  the  purpose  of  being  such  witness. 
{Signature  and  jurat  as  in  Form  No.  6556. ) 

c.  Objection  to  Items. 

(i)  Notice  to  Clerk. 

Form  No.  6560.* 

State  of  Minnesota,  )  In  the  District  Court. 
County  of  Ramsey.  \  Second  Judicial  District 
John  Doe,  plaintiff, 


against 
Richard  Roe,  defendant. 

Please  take  notice  that  the  defendant  in  the  above  entitled  action 
objects  to  the  taxation  of  the  item  (^Here  set  out  the  item  and  amount 
verbatim)  as  disbursements  for  witness  fees  of  Richard  Styles  made  by 
the  plaintiff  in  said  action,  said  item  being  contained  in  and  part  of 
the  bill  of  costs  herein,  which  was  duly  served  upon  said  defendant; 
and  the  grounds  of  his  objection  to  the  taxation  of  such  item  are  as 
follows,  to  wit:  that  the  trial  was  set  down  for  a  certain  day,  being 
the  fifth  day  of  May,  iS9!/,  and  that  it  was  not  necessary  for  said 

mandamus,  issued  out  of  the  said  court,  being  engaged   in  the  pursuit  of  said 

and    to   him    directed    and    delivered;  Pearson,  and  in   bringing  him  back  to 

which    said    writ   of   attachment    was  this  court,  ten  days.    .That  this  depo- 

delivered  to  this  deponent  to  execute,  nent  necessarily  expended,  for  his  ex- 

That  this  deponent  went  immediately  penses  in  pursuing  said  Pearson,  and 

in  search  of  said  Pearson,  who  was  in  bringing   him    back  to  court,  the  sum 

the  city  of  Springfield,   on  the   day  of  of  twenty-eight  dollars  and  seventy-five 

the  issuing  of   said  writ.     This  depo-  cents,  and   for  horse  hire  the  sum  of 

nent   further   saith    that,   although  he  thirty-eight    dollars.      This    deponent, 

went   immediately  in   search    of   said  therefore,  prays  this  court  to  direct  the 

Pearson,  he  was  not  able  to  find   him  clerk  of  this  court  to  tax   the    amounts 

within   the   county   of   Sangamon,   but  thus   expended  by   him,   for   expenses 

learnedthat  he  had  covertly  and  secretly  and  horse  hire,  with  the  costs   in  the 

left  the  city  and  was  fleeing  from   the  above  entitled  cause, 

process  of  this  court,  for  the  purpose  of  James  C.  Maxcy. 

evading  justice;  and  this  deponent  con-  Sworn  and  subscribed,  this  13th  day 

ceiving  that  it  was  his  duty  to  pursue  oi  January,  1^42,  before  me. 

the   fugitive,  hired  a  horse   and  gave  E.  Peck,  C.  S.  C." 

chase  to  said  Pearsoii,  and  traveled  six  1.  Witnesses'  fees  can  be  charged  on 

days  before  he  was  able  to   overtake  an  affidavit  made  by  them    that  they 

him.     That  he  overtook  him  in    Clay  attended  as  witnesses,  and   would  not 

county,  and  caused  him  to  be  arrested  have  attended  except  for  the    purpose 

by  the  sheriff  of  said  county  of  Clay,  of  being  witnesses.     Taaks  v.  Schmidt, 

who  delivered  the  prisoner  to  this  affi-  25  How.  Pr.  (N.  Y.  Supreme  Ct.)  340. 

ant,  for  the  purpose  of  bringing  him  to  2.  Minn.  Stat.  (1894),  §   5505.      The 

Springfield,  to  answer  for  his  contempt  objection  must  be  in  writing  and  must 

to    this    court.      That    this    deponent  specify  grounds, 
brought    said   Pearson    to    Springfield, 

804  Volume  5. 


6661.  COSTS.  6662. 

witness  to  attend  the  whole  number  of  days  for  which  disburse- 
ments for  him  are  claimed,  but  that  it  was  necessary  for  him  to 
attend  upon  two  only  of  those  days,^ 

Joseph  Story, 
Attorney  fOr  Defendant. 
To  Jeremiah  Mason,  Esq. , 

Attorney  for  Plaintiff, 
and 
To  Abraham  Kent, 

Clerk  of  the  District  Court,  Second  Judicial  District. 

(2)  Certificate  of  Clerk. 
Form  No.  6561.* 

State  of  Minnesota,  )  In  the  District  Court. 
County  of  Ramsey.    \  Second  Judicial  District. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

I,  Abraham  Kent,  clerk  of  the  District  Court  for  the  Second  Judi- 
cial District,  state  of  Minnesota,  do  hereby  certify  that  the  above 
bill  of  costs  was  duly  brought  on  for  taxation  before  me,  by  the 
plaintiff,  on  the  eletienth  day  of  May,  iS97,  and  that  a  written  objec- 
tion to  the  item  (^specifying  it)  was  made  by  the  defendant  and  duly 
filed  with  me  in  the  following  form:  (Here  set  out  a  copy  of  the  objection 
filea),  and  that  I  allowed  the  taxation  of  said  bill,  including  said  item, 
over  his  objection. 

Abraham  Kent, 
Clerk  District  Court,  Second  ]\x^\q\^  District. 

2.  Retaxation.3 

1.  Where  the  objection  was  "to  the  upon  notice.  For  statutes  relating  to 
item    of    $17.48,    charged    for   Baker's     retaxation  see  as  follows: 

witness  fees  "  and  the  ground  was  "  be-        Arkansas.  —  Sand.  &  H.  Dig.  (1894), 

cause  said  cause  was  set  down  for  trial  §  809. 

upon  day  certain,  and  it  was  not  neces-         Colorado.  —  Mills'  Anno.  Stat.  (1891), 

sary  to   have   the   witness   present   so  §  693. 

many  days,"  the    objection    filed    was         Illinois, — Starr    &    C.    Anno.    Stat. 

held   sufficient,  the   court   saying   that  (1896),  p.  1076,  par.  26. 

the  form  of  the  certificate  was  a  mere        Iowa.  —  Code  (1897),  §  3864. 

question  of  practice  and  that  this  form         Kansas.  — Gen.  Stat.  (1889),  §  4695. 

was   deemed   sufficient    by    the    lower        Kentucky. — Stat.  (1894),  §  906. 

court.    Davidson  z/.  Lamprey,  17  Minn.         Mississippi.  —  Anno.  Code    (1893),   § 

32.  891. 

2.  Minn.  Stat.  (1894),  §  5505.     Noob-        Missouri.  —  Rev.  "Stat.  (1889),  §  2941. 
jection  not  so  certified  by  the  clerk  can        New  fersey.  — Gen.    Stat.    (1895),    p. 
be  raised  before  the  court  upon  appeal.  2579,  S282;  p.  2580,  §  284. 
Davidson  z/.  Lamprey,  17  Minn.  32.  North    Carolina.  —  Code    Civ.   Proc. 

3.  In   a   large   number  of   states  no  (1891),  §  532. 

notice  of   the  primary  taxation  by  the         Oklahoma.  —  Stat.  (1893),  §  4490. 
clerk  is  served  upon  the  opposite  party;         Oregon.  —  Hill's   Anno.   Laws  (1892), 
but  any  party  aggrieved  makes  appli-    §  556. 

cation    to   the    court    for   the    taxation  Vermont.  —  Stat.  (1894),  §  1698. 

805  Volume  5. 


6562.  COSTS.  6564. 

a.  Where  Costs  have  been  Taxed  Without  Notice. 

(1)  Notice. 

Form  No.  6562.' 

Please  take  notice  that  the  within  bill  of  costs  will  be  presented 
for  retaxation  to  the  county  clerk  of  the  county  of  Suffolk,  at  his 
office  in  the  village  of  Riverhead,  on  the  nineteenth  day  of  May,  iS98, 
at  tefi  o'clock  in  the  forenoon. 

{Date,  signature  and  address  as  in  Form  No.  6550. ) 

Form  No.  6563.* 

Please  take  notice  that  on  \)n^  fifth  day  of  May,  iS98,  at  ten  o'clock 
A.  M.,  or  as  soon  thereafter  as  counsel  can  be  heard,  application  will 
be  made  to  fohn  Hancock,  clerk  of  said  court,  at  the  court-house  in 
the  city  of  Bismarck,  in  the  county  of  Burleigh,  state  of  North  Dakota, 
to  have  the  costs  and  disbursements  in  the  above  entitled  action, 
which  were  taxed  by  the  clerk  of  said  court  on  t\\&  first  day  of  May, 
i898,  and  entered  in  said  judgment,  a  copy  of  the  items  of  which  is 
herewith  served  upon  you,  retaxed,  and  that  any  sums  deducted 
therefrom,  upon  such  retaxation,  will  be  applied  upon  the  judgment 
and  execution  in  this  action. 

Dated  May  2,  iS98. 

Yours  respectfully, 

Jeremiah  Mason,  Attorney  for  Plaintiff. 

"Xo  Joseph  Story,  Esq.,  Attorney  for  Defendant. 

(2)  Affidavit  for  Order  to  Show  Cause. 
Form  No.  6564.* 

(Commencing  as  in  Form  No.  6556,  and  continuing  down  to  *.) 

I.  That  he  is  the  attorney  for  the  defendant  in  this  action. 

II.  That  judgment  for  the  plaintiff  was  entered  herein  on  the  first 
day  of  April,  iW7.* 

ill.  That  the  bill  of  costs  herein  was  presented  by  the  plaintiff's 
attorney  to  the  county  clerk  of  the  county  of  New  York  on  the  third 
day  of  April,  i897,  and  was  by  him  taxed  and  allowed  in  favor  of 
said  plaintiff. 

IV.  That  no  notice  of  taxation  of  costs  was  served  upon  the 
defendant. 

(Signature  and  Jurat  as  in  Form  No.  6556.) 

Virginia. —  Code  (1887),  §§3552,  3554.  Proc,  S  3264  (Birds.  Rev.  Stat.  (1896),  . 

Washington.  —  2    Hill's    Anno.    Stat.  p.  717,  §  59). 

(1891),  §  843.  2.  North  Dakota. — Rev.  Codes  (1895), 

West  Virginia.  — CoAit  (1891),  c.  138.  §  5586. 

§§  12,  14.  3.  New    York.— CoA&  Civ.   Proc,   § 

1.  Costs  may  be  taxed  in  the  first  in-  3264  (Birds.  Rev.  Stat.  (1896).   p.  717, 

stance  without  notice,  but  where  this  §  59). 

course  is  followed  notice  of  retaxation  North  Dakota.  —  Rev.   Codes   (1895X 

must   be    served.      N.    Y.    Code    Civ.  §  5586. 

806  Volume  5. 


6566.  COSTS.  6667. 

(3)  Order  to  Show  Cause. 

Form  No.  6565.' 

Supreme  Court,  Suffolk  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

Upon  reading  the  affidavit  oi  Joseph  Story,  verified  the  eighteenth 
day  of  May,  iS97,  Ordered: 

That  the  plaintiff  herein  show  cause,  before  Mr.  Justice  Marsha//, 
at  the  specia/  term  of  this  court,  to  be  held  at  Riverhead  on  the 
twenty-fifth  day  of  May,  iS97,  why  an  order  should  not  issue  direct- 
ing the  retaxation  of  costs  in  this  cause,  and  the  crediting,  upon  the 
execution,  of  any  amount  by  which  said  costs  as  originally  taxed  shall 
be  reduced. 

John  Marsha//,  ].  S.C. 

b.  Where  Items  have  been  Allowed  or  Refused. 
(1)  Affidavit. 

Form  No.  6566.* 

(^Commencing  as  in  Form  No.  656^,  and  continuing  down  to  *.) 

III.  That  due  notice  was  served  upon  him  by  plaintiff's  attorney 
that  the  bill  of  costs,  a  copy  of  which  is  annexed  to  this  affidavit, 
marked  Exhibit  A,  would  be  presented  to  the  county  clerk  of  New 
York  county  for  adjustment,  at  his  office  in  the  city  of  New  York,  on 
the  fourteenth  day  of  May,  iS97,  at  ten  o'clock  in  the/'tf/-<fnoon. 

IV.  That  deponent  was  present  at  the  said  time  and  place,  and 
made  objection  to  said  clerk  to  several  items,  to  wit:  (Here  specify 
the  items  objected  to^,^  and  that  he  presented  in  support  of  his  objections 
the  affidavits  submitted  herewith,  marked  Exhibit  B  and  C* 

V.  That  deponent's  said  objection  was  overruled  by  said  clerk, 
and  said  items  were  by  him  allowed. 

(^Signature  and  jurat  as  in  Form  No.  6564-^ 

(2)  Notice  of  Motion. 

Form  No.  6567.* 

1.  New  York.  —  Code  Civ.  Proc,  §  4.  No  affidavit^  can  be  used  except 
3264  (Birds.  Rev.  Stat.  (1896),  p.  717,  those  presented  to  the  clerk.  Sherry 
§  59).  V.  Carey,    18    Civ.    Proc.    Rep.    (N.  Y. 

North  Dakota.  —  Rev.  Codes   (1895),     Super.  Ct.)  256. 
§5586.  6.  California. — Code       Civ.       Proc. 

2.  New  York.  —  Code     Civ.      Proc,     (1897),  §  1033. 

§  3265  (Birds.  Rev.  Stat.  (1896),  p.  717,  /JaAo.  —  Rev.  Sut.  (1887),  ^  4912. 

§  61).  Montana.  —  Code  Civ.  Proc.  (1895),  § 

North  Dakota.  — Rev.    Codes   (1895),  1867. 

§  5587.  Utah.  —  Rev.  Stat.  (1898),  §  3350. 

3.  The  moving  affidavit  for  retaxa-  See  also  Hill's  Anno.  Laws  Oregon 
tion  must  show   specifically  the   items  (1892),  §  557. 

objected    to.     Jermain    v.  Lake  Shore, 
etc.,  R.  Co.,  5  L.  Bui.  (N.  Y.)  58. 

807  Volume  5. 


6568.  COSTS.  6568. 

In  the  Superior  Court  of  the  County  of  Los  Angeles,  State  of 
California. 

John  Doe,  plaintiff,       ^ 

against  >•  Notice.  —  Retaxation  of  Costs. 

Richard  Roe,  defendant.  ) 

Take  notice  that  the  above  named  defendant,  being  dissatisfied 
with  the  bill  of  costs  claimed  by  the  plaintiff  and  served  upon  the 
said  defendant  on  the  tenth  day  of  May,  1 857,  because  (^Here  specify 
the  grounds  of  objection  and  the  items  objected  to^,  will  move  before  the 
Honorable  John  Marshall,  at  chambers}-  on  the  fourteenth^  day  of  May, 
i8P7,  at  ten  o'clock  in  the /(9r<fnoon,  for  an  order  annulling  the  bill  of 
costs  so  served  upon  the  defendant  and  filed  by  the  plaintiff  in  the 
office  of  the  clerk  of  this  county  and  taxing  and  adjusting  the  costs  in 
this  cause  anew. 

■^      '  Joseph  Story,  Defendant's  Attorney. 

To  Jeremiah  Mason,  Esq., 

Plaintiff's  Attorney. 

(3)  Motion. 

(a)  In  General. 

Form  No.  6568. 

(Precedent  in  Teagarden  v.  Commissioners,  49  Kan.  148.)* 

[State  oi  Kansas,  \  In  the  District  Court  in  and  for  the  County 

Linn  County.       \     '  and  State  aforesaid. 

Joseph  Teagarden  et  al. , 
against 
The  Board  of  Commissioners  of 
Linn  County. 

Now  comes  the  defendant  and  moves  the  court  to  retax  the  costs 
in  this  case  and  tax  them  against  the  plaintiffs,  instead  of  the  defend- 
ant, and  render  judgment  therefor  against  said  plaintiffs,  for  the 
reason  that  this  action  is  an  appeal  from  the  decision  and  award  of 
the  county  commissioners  of  said  county  granting  to  the  plaintiffs 
$^5  damages  for  the  location  and  establishment  of  a  public  highway 
over  and  across  the  lands  of  said  plaintiffs;  that  a  warrant  of  said 
county,  duly  and  legally  made  and  executed  by  said  county,  was  ten- 
dered to  said  plaintiffs,  in  the  sum  of  $^5,  in  payment  of  said  damages, 
before  this  case  was  appealed  to  the  district  court,  and  said  warrant 
remained  in  the  office  of  the  county  clerk  of  said  county,  subject 
to  the  order  of  said  plaintiffs;  that  the    said  plaintiffs   refused    to 

1.  Costs  may  be  taxed  upon  such  ap-  which  to  make  his  motion.  Cal.  Code 
plication  either  by  "  the  court  in  which     Civ.  Proc.  (1897),  §  1033. 

the  judgment  was  rendered  or  by  the  8.  The  motion  for  retaxation  in  this 

judge  thereof  at  chambers."    Cal.  Code  case  was  sustained,  and  the  judgment 

Civ.  Proc.  (1897),  §  1033.  affirmed  by  the  supreme  court. 

2.  The  party  dissatisfied  with  the  4.  The  words  enclosed  by  [  ]  will  not 
costs  claimed  has  five  days  after  the  be  found  in  the  reported  case,  but  have 
notice  of  the  filing  of  the  bill  of  costs  in  been  added  to  render  the  form  complete. 

806  Volume  5. 


.-  Motion  to  Retax  Costs.]* 


6669.  COSTS.  6570. 

accept  the  same  and  prosecuted  their  appeal  to  a  final  judgment  in 
this  court;  that  said  warrant  was  at  all  times  subject  to  the  order  and 
disposition  of  said  plaintiffs,  from  the  time  of  its  execution  and  tender 
to  the  plaintiffs  up  to  the  verdict  and  judgment  upon  appeal  to  this 
court;  that  the  plaintiffs,  upon  the  trial  of  this  case  upon  appeal  to 
this  court,  recovered  a  judgment  for  ^0  and  no  more. 

\Joseph  ^'/f'ry,  Attorney  for  Defendants.]^ 

(^)  For  Retaxation  and  Forfeiture  of  Clerks  Fees. 

Form  No.  6569.* 

Pulaski  Circuit  Court. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

On  this  tenth  day  of  May,  i857,  comes  John  Doe,  by  his  attorney, 
and  says  that  he  is  aggrieved  by  the  taxation  of  costs  against  him  by 
the  clerk  of  this  court  in  the  above  entitled  action,  for  {Here  state  the 
error  made  by  the  clerk  in  taxing  the  costs'),  and  upon  these  grounds  he 
moves  the  court  that  the  costs  herein  be  retaxed  by  the  court  by  (^Here 
specify  the  changes  to  be  made  in  the  retaxation),  and  further,  since  it 
appears  by  the  plaintiff's  own  affidavit  herewith  filed  that  he  has 
paid  an  unlawful  charge  by  reason  of  the  said  first  taxation,  the 
plaintiff  moves  the  honorable  court  to  declare  that  the  said  clerk  of 
this  court  shall  forfeit  all  his  fees  and  shall  also  pay  to  the  plaintiff  by 
hi-5  said  taxation  aggrieved  the  whole  amount  which  he  has  paid  by 
reason  of  the  allowing  of  such  unlawful  charge,  such  amount  being 
the  sum  of  thirty  dollars. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

(4)  Order. 

Form  No.  6 5 7 o.« 

(  Title  of  court  and  cause  as  in  Form  No.  654S.) 

Upon  reading  and  filing  the  affidavit  of  Joseph  Story^  verified  the 

1.  The  words  enclosed  by  [  ]  will  not  In  lovm  and  Missouri  the  clerk's  fees 
be  found  in  the  reported  case,  but  are  not  forfeited,  but  the  clerk  pays 
have  been  added  to  render  the  form  the  costs  of  retaxation  and  reimburses 
complete.  the  party  for  the  unlawful  charge.  Iowa 

2.  The  party  who  has  paid  an  unlaw-  Code  (1897),  §  3864;  Mo.  Rev.  Stat, 
ful  charge  by  reason  of  an  error  in  tax-  (1889),  §  2941. 

ation    by    the    clerk    obtains   an   order  In   New  Mexico   the   officer  in   fault 

forfeiting  the  clerk's  fees  and  directing  pays  to  the  party  injured   three   times 

the   clerk    to   reimburse  the  party  for  the  amount  of  the  charges,  the  collec- 

the  payment  required  by  the  unlawful  tion  of  which  penalty  is   enforced    by 

taxation.  execution.        N.     Mex.    Comp.    Laws 

Arkansas.  —  Sand.  &  H.  Dig.  (1894),  (1884),  §  2213. 

^  809.  3.  This   form   is   adapted   from    the 

Colorado.  —  Mills'  Anno.  Stat.  (1891),  facts  in  McLean  v.  Hoyt,  56  How.  Pr. 

is  693.  (N.  Y.  Supreme  Ct.)  351. 

Illinois.  —  Starr    &    C.    Anno.    Stat.  Precedents — Striking  out  Items.  —  In 

(1896),  p.  1076,  par.  26.  Woodland  Bank  v.  Hiatt,  59  Cal.  582, 

809  Volume  5. 


6571.  COSTS.  6571* 

seventeenth  day  of  May^  jS97,  with  the  bill  of  costs  thereto  annexed, 
and  the  affidavits  of  Samuel  Short  and  William  West,  verified  respec- 
tively on  the  sixth  day  of  May,  iS97,  and  the  eighteenth  day  of  May, 
iS97,  and  upon  hearing  Joseph  Story,  of  counsel  for  the  defendant, 
and  Jeremiah  Mason,  of  counsel  for  the  plaintiff,  in  opposition,  upon 
motion  of  said  counsel  for  defendant.  Ordered: 

That  the  adjustment  of  costs  in  this  action  be  set  aside,  and  that 
the  bill  of  costs  be  adjusted  and  amended  by  striking  therefrom  the 
following  items,  to  wit:  (Jlere  specify  the  items  to  be  stricken  out\  and 
that  the  judgment  entered  herein  be  amended  and  reduced  as  to 
costs  by  taking  therefrom  sixty  dollars,  and  that  the  clerk  of  this 
court  amend  the  judgment  roll  and  docket  accordingly. 

Enter:     /.J/.,J.  ^.  C. 

c.  Where  Items  have  been  Omitted. 
(1)  Motion. 

Form  No.  6571. 

(Precedent  in  Nichols  v.  Marsh,  131  U.  S.  402.)' 

[In  the  Supreme  Court  of  the  United  States  of  America. 

October  Term,  \Z88. 
Eton  A.  Marsh,  Minard  Lefever^ 

and  James  Scott  !  In  Equity, 

against  j  No.  72. 

Nichols,  Shepard  and  Company.  J 
In  the  Supreme  Court  of  the  United  States  of  America. 

October  Term,  i8<9<9. 

Nichols,  Shepard  and  Company 

against 

Elon  A.  Marsh,  Minard  Le fever 

and  James  Scott. 

And  now  comes  the  said  defendant  Nichols,  Shepard  d^  Co.,  by 
Charles  F.  Burton,  their  solicitor,  and   moves  the  court  now  here, 

the  order,  omitting  the  formal  parts,  evidence    that  was    introduced  on  the 

was  as  follows:  hearing   of   said   motion;    and  in  con- 

"  It  is  ordered,  that  in  the  motion  to  sideration  of  the  same,  the  court  sus- 

tax  costs,  the  item  of  ^i^^/^  dollars  and  tained    the    motion    of    plaintiff,    and 

sixty-five  cents   for   transcribing   testi-  ordered  and  adjudged  that  the  clerk  of 

mony   be   stricken  out,   and   the    costs  the  Neosho  county  district  court  retax 

fixed  at  seventy-one  dollars  and  twenty  the   costs   in   said  cause  by  assessing 

cents."  against    defendant    and    in    favor    of 

By    Adding    Items.  —  In    Clark    v.  plaintiff    the    costs    of    the    witnesses 

White,  17  Kan.  181,  the  order  adding  mentioned    and    referred    to    in    said 

items  which  was  made  upon  an  agreed  agreed  statement,  the  same  to  be  in- 

statement  of  facts  was  as  follows:  eluded  in  plaintiff's  judgment  against 

"  And  thereupon  at  the  y^/r// Term,  defendant." 

187^,   of    said   Neosho    county    district  1.  For  the  order  see  infra.  Form  No. 

court,    the    said    motion     of    plaintiff  6572.     See  also   Tenn.   Code  (1896),   t^ 

named  in  the  foregoing  agreed  state-  4953. 

ment  of  facts  came  on  for  hearing  be-  2.  The  words   and   figures   enclosed 

fore   said  court,    and    was   submitted,  by  [  ]  will   not   found  in   the  reported 

heard    and    determined    on    the    said  case,  but  have  been  added   to   render 

agreed  statement,   which   was   all   the  the  form  complete. 

810  Volume  5. 


In  Equity. 


6572,  COSTS.  6573. 

that  they,  the  said  Nichols,  Shepard &-  Co.,  do  recover  against  the 
said  Elon  A.  Marsh,  Minard  Lefever  and  James  Scott,  as  costs  to 
be  taxed  in  their  favor,  one-half  of  the  amount  required  for  printing 
the  record  and  supervising  the  printing  of  the  record  in  said  causes, 
in  addition  to  the  amount,  taxable  and  to  be  taxed  in  their  favor,  in 
the  above  entitled  cause. 

This  motion  is  based  on  the  record  in  said  causes  and  on  the  affi- 
davit^  of  Charles  F.  Burton,  hereto  attached,  and  will  be  brought  on 
for  hearing  on  Monday,  the  25th  day  of  February,  at  the  opening  of 
said  court. 

To  R.  A.  Parker,  Esq., 

Solicitor  for  Marsh,  Lefever  and  Scott. 

Charles  F.  Burton, 
Solicitor  for  Nichols,  Shepard  &*  Co. 

(2)  Order. 

Form  No.  6572. 

(Precedent  in  Nichols  v.  Marsh,  131  U.  S.  403.) 

[In  the  Supreme  Court  0/  the  dnited  States  of  America. 

October  Term,  !&?<?. 
Nichols,  Shepard  and  Company  \ 

against  1  In  Equity. 

Elon  A.  Marsh,  Minard  Lefever  [No.  95.]^ 
and  James  Scott.  J 

On  consideration  of  the  motion  for  a  retaxation  of  costs  in  this 
cause,  and  of  the  argument  of  counsel  thereupon,  had  as  well  in  sup- 
port of  as  against  the  same: 

It  is  now  here  ordered  by  the  court  that  the  amount  advanced  by 
the  appellants  in  this  cause  toward  printing  the  record  be  recover- 
able by  them  from  the  appellees  herein. 

IV.  ADDITIONAL  ALLOWANCE.' 
1.  Notice  of  Motion. 

1.  The  affidavit  was  in  the  words  and  Nichols,  Shepard  b'  Co.,  as  one-half  the 

figures  following,  to  wit:  cost  of  printing  the  record  in  said  cases. 

"  State  and  Eastern  District  of  \  Charles  F.  Burton. 

Michisran,                                    >■  ss.  Subscribed  and  sworn  to  before  me 


County  of  Wayne.                          )  this  ^/st  da.y  of  fanuary,  iSSg. 

Charles  F.  Burton,  duly  sworn,   de-  (seal)                  Charles  11.  Fisk, 

poses  and  says,  that  he  is  the  solicitor  Notary  Public, 

for    Nichols,     Shepard  S^    Co.,    in    the  Wayne  County,  Michigan." 

above   entitled   appeal    and   cross   ap-  2.  The  words  and  figures  enclosed  by 

peal,  and  that  in   response  to  the  re-  [  ]  will  not  be   found   in  the   reported 

quest   from   the    clerk   of    this    court,  case,   but  have   been  added  to   render 

he  sent  to  said  clerk,  on   the  i6th  day  the  form  complete, 

of  November,  i8<5y,  the  sum  of  two  hun-  3.  Califonua. —     In     the     city      and 

dred  and  seventy-Jive  dollars,  which  the  county  of  San  Francisco  the  prevailing 

said  clerk  notified  him  was  the  amount  party    is   allowed  five  per  cent,  of  the 

of  money  required   to  defray  the   por-  amount    recovered   together  with    any 

tion   of    the    expense    properly    to    be  sum  by  him  so  paid  in  the  cause  as  costs 

borne   in    the    first    instance,    by   said  and  disbursements  to  be  included  in  the 

8U  Volume  5. 


6573.  COSTS.  6674. 

Form  No.  6573.' 

Supreme  Court,  City  and  County  of  New  York. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

Please  take  notice  that  upon  the  affidavit  oi  Jeremiah  Mason,  veri- 
fied the  tenth  day  of  May,  iS97,  and  upon  the  certificate  of  Richard 
Styles,  referee  herein,  and  on  all  the  proceedings  in  this  cause,  the 
plaintiff  (or  defendant)  will  apply  to  this  court  at  a  special  term  to  be 
held  by  the  Honorable  John  Marshall,  justice,  at  the  New  York 
County  Court-house,  on  the  nineteenth  day  of  May,  iW7,  at  ten  o'clock 
in  the  forenoon,  or  as  soon  thereafter  as  counsel  can  be  heard,  for  an 
order  granting  him  an  additional  allowance  for  costs,  under  pro- 
vision of  section  3253  of  the  Code  of  Civil  Procedure. 

May  11,  1 897. 

Jeremiah  Mason,  Attorney  for  Plaintiff. 
Office  and  P.  O.  address,  111  Broadway,  New  York  City. 

To  Joseph  Story,  Attorney  for  Defendant. 

2.  Certificate  of  Referee. 

Form  No.  6574.' 

Supreme  Court,  City  and  Co\xnX.y  of  Neiv  York. 
John  Doe,  plaintiff,       ) 
against  >• 

Richard  Roe,  defendant.  ) 

I,  Richard  Styles,  the  referee  before  whom  this  cause  was  tried,  do 

judgment   against  the  adverse   party;  7;  Mann   v.  Tyler,  6  How.  Pr.  (N.  Y. 

provided   said    five  per   cent,  shall  be  Supreme   Ct.)   236;   Howe   v.    Muir,   4 

allowed  only  in  litigated  cases  and  shall  How.  Pr.  (N.  Y.  Supreme  Ct.)  252. 

not  exceed   the   sum    of   one   hundred  2.  Where  the  trial  has  been  by  refer- 

dollars  on  any   one   judgment.     "An  ence,   it  is  the  best  practice  to  present 

Act   to   regulate  fees  in    the   city  and  among  the  motion  papers  a  certificate 

county  of   San    Francisco,"  §  6   (Stat,  by  the  referee.     Fox  v.  Gould,  5  How. 

1866,  p.  66).     The  law  is  still  in   force  Pr.  (N.  Y.   Supreme  Ct.)  280;  Gould  v. 

notwithstanding    the  adoption    of  the  Chapin,  4  How.  Pr.  (N.  Y.  Supreme  Ct.) 

codes.     Whitaker   v.   Haynes,  49   Cal.  186;  Main  v.   Pope,  16  How.  Pr.  (N.  Y. 

596.  Supreme  Ct.)27i;  Dode  v.  Manhattan 

Hiimesota.  —  For   a   statute  allowing  R.  Co.,  70  Hun  (N.  Y.)  376.     In  the  lat- 

additional  allowance  in  actions  for  the  tercase  the  court  said:  "  Upon  a  motion 

recovery    of    money     only    where    an  made  for  an  additional  allowance  the 

appeal  was  taken  for  delay  merely,  see  plaintiff  failed  to  produce  a  certificate 

Minn.  Stat.  (1894),  §  5517.  of  the  referee  that  the  case  was  difficult 

1.  The     motion    for    an     additional  and  extraordinary.     It  is  usual,  and  we 

allowance  is  usually  made  at  the  trial,  regard  it  as  the  better  practice,  not  to 

and  when  so  made  notice  of  motion  is  grant  an  additional  allowance  without 

unnecessary.     Mitchell  v.  Hall,  7  How.  a  certificate  of  the  referee  who  tried  the 

Pr.  (N.  Y.  Supreme  Ct.)49i;  Mann  v.  case,  but  the  absence  of  it  is  not  juris- 

Tyler,  6  How.  Pr.  (N.  Y.  Supreme  Ct.)  dictional  and  does  not  deprive  the  court 

236;  Saratoga,  etc.,   R.  Co.  ?'.  McCoy,  of  the  power   to  consider  the  motion, 

9  How.   Pr.  (N.  Y.  Supreme   Ct.)   339.  and  determine    for  itself  whether   the 

When   the  motion   is  made  after  trial,  case  falls  within  the  language  of  the 

however,    it     must    be     upon    notice,  Code."     In    the    last    case    the    court 

Woodruff  V.    New  York,  etc.,   R.  Co.,  granted  the  certificate  and   its    action 

(Buffalo  Super.  Ct.)  31   N.   Y.  St.  Rep.  was  sustained  in  140  N.  Y.  637. 

818  Volume  5. 


6575.  COSTS.  6576. 

hereby  certify  that  the  investigation  or  trial  of  this  cause  involved 
difficult  questions  of  law  which  required  and  evidently  received  much 
examination  and  preparation  on  the  part  of  the  counsel  of  the  respec- 
tive parties,  and  I  further  certify  that  said  difficult  and  extraordinary 
questions  of  law  were  {^Here  state  the  nature  of  the  questions  involved). 
May  19,  iS97. 

Richard  Styles. 
3.  Affidavits.! 
a.  In  Support  of  Motion. 
Form  No.  6575.' 

i^Title  of  court  and  cause,  and  venue  as  in  Form  No.  6Jf.76.) 
Jeremiah  Mason,  being  duly  sworn,  deposes  and  says: 

I.  That  he  was  the  attorney  and  counsel  for  the  plaintiff  in  the 
above  entitled  action. 

II.  That  the  issues  involved  and  litigated  were  {^Here  state  their 
nature,  and  number  them  consecutively),  and  that  said  issues  were  liti- 
gated with  great  bitterness. 

III.  That  a  large  number  of  witnesses,  namely,  twenty-five,  were 
called  on  the  part  of  the  defendant,  and  that  a  large  number  of  wit- 
nesses,  namely,  fifteen,  were  necessarily  called  on  the  part  of  the 

plaintiff. 

IV.  That  the  issues  above  mentioned,  numbered  2  and  S,  were 
questions  which  involved  the  examination  and  cross-examination  of 
expert  witnesses,  and  that  deponent,  as  counsel  for  the  plaintiff,  was 
obliged  to  make  a  careful  study  of  the  subject  involved  in  these 
issues,  and  that  the  time  spent  by  deponent  in  the  preparation  for 
trying  said  issues  was  about  thirty  days.'* 

V.  That  to  secure  the  testimony  in  question  and  procure  the 
attendance  of  ^'\tnts?,ts, plaintiff 'wblS,  obliged  to  spend  as  follows: 
(^Here  itemize  the  expenditures^ 

VI.  That  judgment  was  rendered  herein  for  tht  plaintiff  on  the 
fourteenth  day  of  May,  iS97,  and  that  the  costs  herein  have  not  yet 
been  taxed  and  adjusted.* 

(^Signature  and  jurat  as  in  Form  No.  64.76.) 

b.  In  Opposition  to  Motion. 
Form  No.  6576.* 
{Title  of  court,  cause  and  venue  as  in  Form  No.  6^76.) 

1.  For  forms  of  affidavits,  generally,  by  them,  or  time  or  labor  consumed  by 
consult  the  title  AFFmAViTS.  vol.  i,  p.  both  counsel  or  servants;  the  time  con- 
548.  sumed  on  the  trial,  the  number  of  trials, 

2.  This  form  is  based  on  the  facts  in  postponements  and  all  arguments  at  the 
the    case    of     McCulloch    v.     Dobson,  general  term,  whether  there  was  a  long 
(Supreme    Ct.)    15    N.    Y.    Supp.    602;  account  involved  or  a  reference  had." 
affirmed  ly^  N.  Y.  114.  4.  Application  cannot  be  made  after 

3.  In  Gori  v.  Smith,  3  Abb.  Pr.  N.  S.  the  costs  are  finally  taxed.  Hudson  v. 
(N.  Y.  Super.  Ct.)  51,  it  was  said  that  Guttenberg,  9  Abb.  N.  Cas.  (Brooklyn 
'•parties  claiming  any  additional  sum  City  Ct.)  415. 

ought  to  furnish  the  court  with  some  5.  This  form  is  based  on  the  facts  in 
specific  facts,  such  as  moneys  actually  Gould  v.  Chapin,  4  How.  Pr.  (N.  Y. 
expended  or  liabilities  actually  incurred     Supreme  Ct.)  185. 

.  818  Volume  5. 


6677.  COSTS.  6578. 

Joseph  Story,  being  duly  sworn,  deposes  and  says: 

I.  That  he  was  attorney  and  counsel  for  the  defendant  in  the  above 
entitled  action. 

II.  That  he  denies  that  the  case  was  difificult  or  extraordinary; 
that  the  only  questions  of  fact  or  law  which  were  controverted  were 
(^Here  specify  them). 

III.  That  the  time  occupied  in  the  trial  did  not  exceed  two  hours, 
and  that  the  summing  up  on  both  sides  occupied  only  from  two  to 
three  hours. 

IV.  That  the  cause  was  decided  by  referee  within  an  hour  after  it 
was  submitted  to  him. 

V.  That  a  referee's  certificate  was  obtained  by  the  plaintiff  ex  parte 
without  notice  to  defendant's  attorney  or  application  therefor. 

{Signature  and  jurat  as  in  Form  No.  6476. ) 

4.  Order.  ' 

Form  No.  6577.' 

{Title  of  court  and  cause  as  in  Form  No.  65JiB.^ 

Upon  reading  and  filing  the  affidavit  of  Jeremiah  Mason,  verified 
the  nineteenth  day  of  May,  iS97,  and  the  affidavit  of  Joseph  Story,  in 
opposition,  verified  the  nineteenth  day  of  May,  iS97,  and  upon  read- 
ing and  filing  the  certificate  of  the  referee  herein,  granted  the  seven- 
teenth day  oi  May,  i897,  and  upon  all  the  papers  filed  in  this  action,  by 
which  it  appears  that  the  plaintiff  has  recovered  the  sum  of  three 
thousand  dollars,  that  a  defense  was  interposed,  but  that  the  case 
was  difficult  and  extraordinary,  Ordered: 

That  the  plaintiff  be  and  is  hereby  allowed  five  per  cent,  upon  the 
amount  of  such  recovery  as  an  additional  allowance  above  the  usual 
costs. 

Enter:    /.  M.,  J.  S.  C. 

V.  AWARD  OF  COSTS. 

1.  Against  Parties. 

a.  Plaintiff. 

Form  No.  6578. 

(Precedent  in  Haskins  v.  Wallet,  63  Tex.  215.) 
Henry  Wallet 

No.  m.         V. 

H.  H.  Brockman. 

In  this  cause  the  plaintiff  failing  to  appear  and  prosecute  the  same,  it 
is  ordered  by  the  court  that  this  cause  be  dismissed  and  that  the 
plaintiff  pay  all  costs  in  this  behalf  expended,  for  which  execution  issue. 

H.  Clay  Pleasant, 

Judge  D.  C,  K.  C. 

1.  New  K<'r/fe.  —  Birds.  Rev.  Stat.  (1896),  p.  714,  §  48. 

814  Volume  5- 


6579.  COSTS.  6580. 

b.  Defendant. 

Form  No.  6579. 

(  Title  of  court  and  cause  as  in  Form  No.  6543.^ 

It  appearing  that  the  summons  and  complaint  in  this  action  were 
duly  and  personally  served  upon  the  above  named  defendant  on  the 
twenty-ninth  day  of  April,  iS97,  and  that  the  time  to  appear  and  plead 
has  fully  expired,  and  further  that  said  defendant  has  neither 
appeared  nor  pleaded,  now  the  court  having  computed  the  amount 
which  the  plaintiff  ought  to  recover  and  is  entitled  to  recover  herein, 
and  damages  having  been  duly  assessed  as  below  stated,  upon  motion 
oi  Jeremiah  Mason,  plaintiff's  attorney.  Ordered: 

That  John  Doe,  plaintiff,  recover  of  said  Richard  Roe,  defendant, 
the  sum  of  one  hundred doWars  and ^  dollars,  costs  and  disburse- 
ments, said  sums  amounting  in  all  to dollars. 

Enter:     /.  M.,  J.  S.  C. 

2.  Against  Persons  not  Parties. 

a.  Attorney. 
(1)  For  Nonresident  Plaintiff.* 

Form  No.  6580.* 

The  State  of  Alabama,  \  Circuit  Court. 
Tuscaloosa  County.         f  October  Term,  iZ96. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

This  day  comes  the  defendant  Richard  Roe,  by  his  attorney,  and 
moves  the  court  for  an  award  and  order  of  judgment  for  costs  of 
fifty-two  dollars  and  eighty-three  cents  in  this  suit,  SLgSLinst  Jeremiah 
Mason,  Esq.,  upon  the  ground  that  he  has  prosecuted  this  suit  with- 
out requiring  said  plaintiff  to  give  and  without  said  plaintiff  having 

1.  The  order  for  costs  against  the  Illinois. —  Starr  &  C.  Anno.  Stat, 
defendant  is  included  in  and  a  part  of    (1896),  p.  1066,  par.  3. 

the  judgment.     The  amount  of  costs  is  Kentucky. —  Bullitt's  Civ.  Code  (1895), 

left  blank,  to   be   filled  by  the  taxing  §  621. 

officer.  Minnesota. —  Stat.  (1894),  §  5519- 

2.  Statutes  exist  in  many  of  the  Missouri. —  Rev.  Stat.  (1889),  §  2915. 
states  making  the  attorney  of  a  non-  New  York. —  Code  Civ.  Proc,  §  3278. 
resident  liable  for  costs  in  case  security  Oregon. —  Hill's  Anno.  Laws  (1892), 
is  not  filed  by  such  plaintiff.  §  566. 

Alabama. —  Civ.  Code  (1886),  §  2860.  Wisconsin. — Sanb.  &  B.  Anno.  Stat. 

Arkansas.— S&nd.  &  H.  Dig.  (1894),  (1889),  §2948. 
§786.  ^.  Alabama.— C\\.    Code     (1886),     § 

Colorado. —  Mills'  Anno.  Stat.  (1891),  2860. 
§  675.  The  formal  phraseology  of  this  form 

District  of  Columbia. —  Comp.    Stat,  is  taken  from  the  precedents  in  Elliott 

(1894),  c.  55,  §  30.  V.  Clements,  5  Ala.  471;  Pratt  v.  Keils, 

Florida. —  Rev.  Stat.  (1892),  §  1301.  28  Ala.  391;  Wynn  z/.  Simmons,  33  Ala. 

Georgia. —  2  Code  (1895),  §  5613.  272;  Barclay  v.  Barclay,  42  Ala.  346. 

815  Volume  5. 


6581.  COSTS.  6581. 

given  security  for  costs,  said  plaintiff  being  a  nonresident,  and  it  is 
made  to  appear  to  the  satisfaction  of  the  court  by  the  affidavit  of 
defendant,  sworn  to  t\\Q  first  day  of  October,  iS96,  that  the  plaintiff  is 
a  nonresident  of  this  state,  and  it  appearing  further  from  said  affida- 
vit and  the  record  of  this  cause  that  a  judgment  has  been  rendered 
and  entered  herein  in  favor  of  the  defendant,  entitling  said  defend- 
ant to  full  costs  and  that  said  costs  have  been  taxed  in  favor  of  the 
defendant  in  the  sum  of  fifty-two  dollars  and  eighty-three  cents,  and 
that  the  plaintiff  herein  gave  no  security  for  costs;  and  further  that 
Jeremiah  Mason,  Esq.,  counsellor  of  this  court,  prosecuted  this  case 
in  behalf  of  said  plaintiff  without  requiring  him  to  file  such  security 
for  costs;  upon  proof  to  the  satisfaction  of  this  court  of  due  service  of 
notice  of  this  motion  upon  said  Jeremiah  Mason,  Esq. ,  who  being  called, 
came  not,^  and  after  hearing  Joseph  Story,  of  counsel  for  the  defend- 
ant, it  is  now  thereupon  considered  and  ordered  by  this  court  that 
said  Jeremiah  Mason,  Esq.,  within  ten  days  from  the  date  of  the  serv- 
ice of  a  copy  of  this  order  upon  him,  pay  to  defendant  herein  the 
said  sum  oi  fifty-two  dollars  and  eighty-three  cents,  taxed  as  costs  of 
the  defendant  in  this  action  together  with  the  costs  by  him,  the 
defendant,  upon  his  motion  in  this  behalf  expended. 
Dated  October  8,  iS96. 

John  Marshall,  Circuit  Judge. 

(2)  Where  Scandalous  and  Impertinent  Matter  is    Stricken 

Out. 

Form  No.  6581.* 

(  Title  of  court  and  cause  as  in  Form  No.  65^3. ) 

Upon  reading  and  filing  the  affidavit  oi  Jeremiah  Mason,  verified  the 
eighteenth  day  of  May,  iS97,  and  upon  reading  and  inspecting  the  answer 
in  this  action  in  said  affidavit  mentioned,  which  was  filed  herein  on 
the  seventeenth  day  oi  May,  i&97,  after  hea.nng  Jeremiah  Mason,  oi 
counsel  for  the  plaintiff,  and  Joseph  Story,  oi  counsel  for  the  defend- 
ant, in  opposition,  upon  motion  oi  Jeremiah  Mason,  attorney  for  the 
plaintiff.  Ordered: 

I.  That  paragraphs  IV  and  V  of  said  answer  be  and  the  same  are 
hereby  stricken  out  as  scurrilous,  irrelevant  and  defamatory,  and  as 
having  been  maliciously  and  unnecessarily  inserted. 

II.  That  said  Joseph  Story,  attorney  for  the  defendant,  be  and 
hereby  is  commanded  to  pay  to  said  plaintiff's  attorney,  within  ten 
days  after  the  service  upon  him  of  a  copy  of  this  order,  ten  dollars, 
costs  of  this  motion,  which  are  hereby  charged  upon  him  personally,^ 
for  his  misconduct  in  filing  said  answer. 

Enter:    /.  M.,  J.  S.  C. 

1.  See  Connoly  v.  Alabama,  etc.  R.  3.  The  fault  of  filing  a  scandalous  or 
Co.,  39  Ala.  373;  Barclay  v.  Barclay,  impertinent  plea  usually  rests  with  the 
42  Ala.  347.  attorney,  and  the  order  to  pay  costs  is 

2.  This  form  is  based  on  the  facts  in  properly  made  against  him  rather  than 
the  case  of  McVey  z/.  Cantrell,  8  Hun  against  the  party.  McVeyt/.  Cantrell, 
(N.  Y.)  522.  8  Hun  (N.  Y.)  522. 

816  Volume  5. 


6582.  COSTS,  6583. 

b.  Against  Executor,  Assigrnee  or  Trustee. 
(1)  Certificate  of  Judge. 

Form  No.  6582.' 

I,  John  Marshall^  justice  of  the  Supreme  Court,  before  whom  trial 
of  this  cause  was  had  on  the  fourth  day  oi  January,  iS91,  do  hereby 
certify  that  at  said  trial  it  appeared  that  before  the  beginning  of  this 
action  the  plaintiff  duly  presented  to  the  defendant,  within  the  time 
limited,  by  a  notice  published  by  the  defendant  as  prescribed  by  law 
requiring  creditors  to  present  their  claims,  a  demand  upon  the  claim 
in  this  action  in  question  for  the  sum  of  Mr^^  ^««</r(fd' dollars  ;2  and 
that  the  defendant  unreasonably  resisted  and  neglected  to  pay  said 
claim,  viz. :  (^Here  specify  the  facts  appearing  upon  the  trial. ^ 

Dated  January  4,  \Z91. 

John  Marshall,  J.  6".  C. 

(2)  Order. 

Form  No.  6583. 

At  a  Special  Term  of  the  Supreme  Court,  held  at  the  County  Court- 
house in  Nav  York  City,  on  the  nineteenth  day  of  May,  i897. 

Present,  Hon.  Roger  A.  Pryor,  Justice. 
John  Doe,  plaintiff, 
against 
Richard  Roe,  as  executor  of  the  estate  of 

Richard  Styles,  deceased,  defendant. 

Upon  reading  and  filing  the  affidavit  oi  Jeremiah  Mason,  verified  the 
seventeenth  day  of  May,  iS97,  and  the  certificate*  of  the  Honorable 
John  Marshall,  justice,  given  the  twelfth  day  of  May,  iS97,  and  upon  all 
the  proceedings  in  this  cause,  from  which  it  appears  that  prior  to  the 
beginning  of  this  action  the  plaintiff  made  due  demand  upon  the  de- 
fendant within  the  duration  of  the  time  prescribed  by  the  defendant 
in  a  notice  published  pursuant  to  law,  requiring  creditors  to  present 
their  claim  against  the  decedent,  said  demand  being  for  an  amount 
not  in  excess  of  the  sum  recovered  in  this  action,  and  based  upon 
the  claim  upon  which  recovery  is  here  had;  but  the  defendant  unwar- 
rantably resisted  and  refused  to  pay  the  same;  and  further  that  the 
plaintiff  offered  to  refer  the  claim  in  question  according  to  the  stat- 
ute, but  that  the  defendant  wholly  neglected  and  refused  so  to  refer, 
and  that  the  plaintiff  has  now  recovered  a  judgment  herein  for  four 

1.  J^ew  York.  —  Code  Civ,  Proc,  facts  fully  and  fairly,  they  may  be 
I  1836.  shown  by  affidavits.     Ely  v.  Taylor,  42 

2.  Or  the  order  may  continue  from     Hun  (N.  Y.)  205. 

this  point  as  follows:  "  refused,  though  4.  Where  a  rule  of  costs  is  claimed 

the  defendant  made  request  therefor,  to  against  an  executor  because  he  refused 

refer  the  claim  as  prescribed  by  law."  to  refer  ^r  because  the  payment  of  the 

3.  When  a  case  is  charged  to  have  claim  was  unreasonably  resisted  or  re- 
been  unreasonably  defended,  the  facts  jected,  the  certificate  of  the  judge  as 
which  appear  upon  the  trial  may  prop-  to  these  facts  is  absolutely  necessary, 
erly  be  referred  to;  and  in  such  cases,  Matson  v.  Abbey,  141  N.  Y.  179;  Hal- 
if  the  certificate  does  not  state  all  the  lock  v.  Bacon,  64  Hun  (N.  Y.)  90. 

5  E.  of  F.  P.  —  52.  817  Volume  5. 


6584.  COSTS.  6584. 

hundred  dollars  upon  the  tenth  day  of  May,  i857.  Now,  upon  reading 
and  filing  proof  of  due  service  of  notice  of  this  motion^  upon  Joseph 
Story,  attorney  for  the  defendant,  and  on  motion  oi  Jeremiah  Mason, 
attorney  for  plaintiff,  Ordered: 

That  full  costs  be  awarded  to  the  plaintiff  herein,  and  that  the 
clerk  of  this  court  be  directed  to  tax  the  same,  said  costs  to  be  paid 
out  of  the  estate  of  the  decedent  (or  said  costs  to  be  paid  by  the  defend- 
ant personally)?^ 

Enter:     R.  A.  P.,  J.  S.  C. 

e.  Against  Person  Benefleially  Interested.^ 

(1)  Affidavit  in  Support  of  Motion. 

Form  No.  6584.* 

(^Title  of  court  and  cause,  and  venue  as  in  Form  No.  64-76.) 
Richard  Roe,  being  duly  sworn,  deposes  and  says : 

I.  That  he  is  the  defendant  in  the  above  entitled  action. 

II.  That  the  action  was  commenced  on  \h&  fourteenth  day  oi  June, 
i?>88,  issues  joined  on  the  sixteenth  day  oi  June,  1S88,  and  the  case 
tried  before  the  Honorable  R.  Henry  Dugre  and  a  jury  on  the  twelfth 
day  oi  July,  iB90,  and  that  a  verdict  was  rendered  in  favor  of  the 
plaintiff  in  the  sum  of  six  cents. 

III.  That  the  costs  of  the  action  were  thereafter  duly  taxed  in 
favor  of  the  defendant,  and  judgment  entered  in  favor  of  the  defend- 
ant on  the  tenth  day  oi  July,  iS90,  for  one  hundred  and  thirty-four  dol- 
lars and  ninety-four  cents,  and  that  on  the  tenth  day  of  Angust,  i890, 
said  judgment  was  amended  and  entered  nunc  pro  tunc  by  deducting 
therefrom  said  six  cents  awarded  to  the  plaintiff  by  the  jury. 

IV.  That  execution  was  issued  on  said  judgment  on  the  fourth  day 
oi  September,  iS90,  and  thereafter  on  the  ffteenth  day  of  September, 
jS90,  was  returned  wholly  unsatisfied.* 

V.  That  prior  to  the  beginning  of  this  action,  and  on  or  about  the 
second  day  oi  January,  1SS8,  the  claim  upon  which  this  action  was 
founded  was  owned  by  one  Edward  Woodruff,  a  nonresident  of  this 
state,  residing  at  Rahway,  New  Jersey;  that  on  or  about  the  said  date 

1.  This  order  can  be  obtained  only  der  against  the   party  beneficially  in- 
by  motion  upon  notice.     It  cannot  be  terested  in  the  action  to  pay  the  costs, 
granted  ^-JT/a;/^.     Slocum  v.  Barry,  38         Alabama. — Civ.  Code  (1886),  ^5  2845. 
N.   Y.  46;  Dodge  v.  Crandall,  30  N.  Y.         Maryland.  — '?\x\).  Gen.  Laws  (1888), 
294;   Fish  V.   Crane,   9  Abb.   Pr.  N.  S.  art.  24,  §  8. 

(^^   Y.   Supreme   Ct.)  252;  Schenck  v.  Missouri.  —  Rev.  Stat.  (1889),  §  2930. 

Rickaby,  20  Civ.  Proc.  Rep.  (N.  Y.  Su-  South    Carolina.  —  Code    Civ.     Proc. 

preme  Ct.)  384.  (1893),  §  333- 

2.  Whether  the  costs  should  be  Virginia. — Code  (1887),  §  3546. 
charged  against  the  defendant  person-  4.  This  form,  drawn  under  N.  Y.  Code 
ally  or  against  the  estate  be  represents  Civ.  Proc,  §  3247,  is  adapted  from  the 
may  depend  upon  other  facts  appear-  facts  in  the  case  of  Pendleton  v.  John- 
ing  on  the  trial  which  may'be  shown  son,  21  Civ.  Proc.  Rep.  (N.  Y.  Super, 
by  affidavits  if  necessary.     Ely  v.  Tay-  Ct.)  272. 

lor,  42  Hun  (N.  Y.)  205.  5.  The  return  of  the  execution   un- 

3.  In  several  states  there  is  express  satisfied  is  sufficient  evidence  of  in- 
statutory  provision  for  entering  the  or-     ability   to   collect   from    the    assignee, 

818  Volume  5. 


6585.  COSTS.  6586. 

the  said  claim  was  assigned  by  said  Edward  Woodruff  Xo  the  plaintiff 
of  record  herein  in  order  that  said  plaintiff  might  sue  thereon  and  to 
avoid  the  necessity  of  giving  security  for  costs,  but  that  said  Edward 
Woodruff  retained  and  still  retains  the  beneficial  interest  in  said  claim. 

VI.  That  the  plaintiff  herein  stated  to  the  deponent  on  several 
occasions  that  he  had  no  interest  in  the  claim,  and  that  the  pro- 
ceeds thereof  applied  to  said  Edward  Woodruff 

{^Signature  and  jurat  as  in  Form  No.  6^76 .) 

(2)  Notice  of  Motion. 

Form  No.  6585. 

(  Ty/Znr  0/  court  and  cause  as  in  Form  No.  6.^76. ) 

Please  take  notice  that  upon  the  annexed  affidavit  of  Richard  Roe, 
verified  on  the  saienth  day  of  May,  iS97,  and  upon  all  the  proceed- 
ings in  this  action,  the  defendant  will  move  at  a  special  term  of  the 
Supreme  Court  to  be  held  by  the  Honorable  John  Marshall,  justice, 
on  the  nineteenth  day  of  May,  iS97,  for  an  order  directing  you  to  pay 
to  the  defendant's  attorney^  the  costs  awarded  to  the  defendant  in 
this  action,  upon  the  ground  that  you  are  the  person  beneficially 
interested  in  the  cause  herein  and  the  wrongful  promoter  of  said 
action, 

{Date,  signature  and  address  as  in  Form  No.  64^9. ) 

(3)  Order. 

Form  No.  6586. 

(  Title  of  court  and  cause  as  in  Form  No.  65^3. ) 

Upon  reading  and  filing  the  affidavit  of  Richard  Roe,  xtrxfit^  the 
thirty-first  day  of  May,  iS91,  and  upon  all  the  proceedings  in  this 
cause,  from  which  it  appears  that  prior  to  the  commencement  of  this 
action  one  Ed7vard  Woodruff  SLSs'igned  to  the  plaintiff  the  legal  title 
to  the  claim  herein  sued,  but  retained  the  equitable  and  beneficial 
interest  therein,  and  that  upon  the  fifteenth  day  of  May,  i8.9i,  the 
defendant  recovered  judgment  for  costs  against  the  plaintiff  herein 
in  the  sum  of  one  hundred  and  thirty-four  doWam  a.nd  eighty-eight  cents, 
which  costs  were  duly  taxed  and  entered  in  the  judgment,^  and 
execution  thereon  returned  wholly  unsatisfied  on  the  t^ventieth  day  of 
August,  \W1;  now  upon  \iezx\n%  Joseph  Story,  of  counsel  for  defend- 
ant, and  upon  reading  and  filing  proof  of  due  personal  service  of 
notice  of  this  motion  upon  said  Edward  Woodruff,  and  no  one  appear- 
ing in  opposition.  Ordered: 

I.  That  said  Edward  Woodruff,  as  the  person  beneficially  interested 

Perrigo   v.   Dowdall,  25    Hun  (N.  Y.)  to  apply  for  an  order  directing  the  pay- 

234.  ment  of  the  costs  to  the  attorneys. 

1.  This  form  is  adapted  from  Metro-  2.  An  order  against  a  third  person 
politan  Addressing,  etc.,  Co.  v.  Good-  for  costs  as  a  party  beneficially  inter- 
enough,  21  Civ.  Proc.  Rep.  (N.  Y.  Super,  ested  cannot  be  made  until  after  judg- 
Ct.)  268,  in  which  case  it  was  held  that  ment  against  the  nominal  party  is 
the  judgment  for  costs  belonged  to  the  perfected.  Fredericks  v.  Niver,  28 
attorneys  and  that  it  was  not  a  mistake  Hun  (N.  Y.)  417. 

819  Volume  5. 


6587.  COSTS.  6587. 

in  the  prosecution  of  this  action  and  connected  with  said  prosecution, 
pay  to  Joseph  Story,  attorney  for  the  defendant,  Richard  Roe,  within 
five  days  after  a  copy  of  this  order  shall  be  served  upon  him,  the 
costs  recovered  by  said  defendant,  Richard  Roe,  against  the  plaintiff 
herein,  said  costs  amounting  to  the  sum  oio7ie  hundred  and  thirty -four 
dollars  and  eighty-eight  cents,  with  interest  from  the  tenth  day  oi  July, 
jS90,  up  to  the  date  of  such  payment. 

II.  That  the  defendant  have  ten  dollars  costs  of  this  motion  against 
said  Ed^vard  Woodruff. 

And  if  said  Edward  Woodruff  ^\i2i\\  fail  to  pay  said  costs  and  interest 
within  y?z'^  days,  Ordered  further,  that  process  issue  from  this  court 
to  enforce  this  order. 

Enter:     D.  M.,  J.  S.  C. 

d.  Motion  against  Security  for  Costs  of  Intervenors. 

Form  No.  6587. 

(Precedent  in  Craig  v,  Leitensdorfer,  127  U.  S.  768.)' 
[  William  Craig,  Appellant, 


against  \  In  Equity,  No.  SIO.'^ 

Thomas  Leitensdorfer. 

And  now  comes  the  appellant  by  his  solicitors  Benj.  F.  Butler  and 
O.  D.  Barrett,  and  gives  this  court  to  be  informed,  that  this  cause 
having  been  heard  and  determined  by  said  court  and  a  mandate  to 
the  Circuit  Court  being  about  to  be  sent  down,  the  matter  of  certain 
costs  still  remains  to  be  adjusted  and  settled  in  this  cause.  That  is 
to  say: 

Leann  S.  King  and  Thomas  J.  Allen,  who,  by  interlocutory  order  of 
said  court  passed  the  18th  day  oi  January,  1S86,  were  permitted  to 
be  heard  in  court,  or  by  brief,  in  said  cause,  as  "  persons  who  claimed 
to  have  acquired  title  to  the  premises  in  dispute,  or  to  some  part 
thereof,  from  or  through  the  appellee,  since  said  suit  was  begun,"  on 
condition  each  should  file  a  stipulation  in  the  cause  with  security  to 
the  satisfaction  of  the  clerk  to  pay  all  costs  and  expenses,  accruing 
on  said  appeal  since  the  last  term  of  the  court,  that  may  be  finally 
adjudged  against  the  appellee,  including  the  cost  of  printing  the 
record  and  the  clerk's  fees  for  supervising.  And  said  King  ^nd  said 
Allen  each  filed  such  stipulation  with  instruments  of  security  duly 
executed  by  each,  the  instrument  filed  by  said  King  having  the  signa- 
ture and  seal  oi  John  JV.  Smith  and  Charles  R.Loc bridge  oi  Kansas 
City,  Mo.,  as  sureties,  thereto  affixed  in  the  full  and  just  sum  of  three 
thousand  dollars,  which  said  security  in  the  matter  of  said  King  was 
satisfactory  to  the  clerk  of  this  court.  Said  Allen  did  file  like  security, 
having  executed  under  his  hand  and  seal,  and  under  the  hands  and 
seals  of  Charles  R.  Haywood  and  A.  D.   Wilson  of  Arapahoe  Court, 

1.  Upon  this  motion    an   order   was        2.  The  words  and  figures  enclosed  by 
granted  that  the  sureties  for  the  inter-     [  ]   will  not  be   found  in   the  reported 
venors  pay  the  costs  taxed  before  the     case,  but  have   been   added   to   render 
last  day  of  the  term,  and  that  if  they     the  form  complete, 
failed  so   to  do   a  writ  of   attachment 
should  issue  to  enforce  the  payment. 

820  Volume  5. 


6588.  COSTS.  6688. 

Colorado,  in  the  full  and  just  sum  of  three  thousand  dollars,  which 
security  in  the  matter  of  said  Allen  was  satisfactory  to  the  clerk  of 
this  court.  All  which  now  fully  appears  in  the  copies  of  said  securi- 
ties hereto  annexed  marked  A.  D. 

And  the  court  here  is  further  informed  that  judgment  having  been 
rendered  by  this  court  in  this  case  in  favor  of  the  appellant,  that  the 
costs  since  the  October  term,  i8^^  including  the  costs  of  printing  the 
record  and  the  clerk's  fees  for  supervising,  which  costs,  amounting  to 
the  full  and  just  sum  of  eleven  hundred  fifteen  dollars  and  two  cents, 
(%1115.02\  as  taxed  by  said  clerk,  and  for  the  payment  of  which  said 
Allen  and  said  King  and  their  sureties  were  jointly  and  legally  bound, 
are  long  since  due  and  unpaid,  although  duly  taxed;  of  all  of  which 
said  King  and  said  Allen  have  had  due  and  reasonable  notice  through 
their  attorneys  of  record  in  this  cause,  but  neither  of  them  has  paid 
said  costs,  or  any  part  thereof,  or  filed  with  said  clerk  any  reason 
why  they  should  not  so  do. 

Wherefore  the  appellant  moves  the  court  here  to  estreat  said  instru- 
ments of  security  for  said  costs,  and  order  judgment  to  be  entered 
thereon  as  taxed  by  said  clerk  and  proper  process  of  attachment  to 
issue  against  all  said  persons,  jointly  and  severally,  so  that  the  judg- 
ment of  this  court  may  be  rendered  effectual,  and  said  costs  may  be 
paid  to  the  Clerk  of  this  Court. 

Benj.  F.  Butler, 
O.  £>.  Barrett, 
Solicitors  for  the  Counsel. 


e.  Against  Prosecutor  In  Criminal  Action.' 

Form  No.  6588. 

The  State  of  Alabama  ) 

against  >  Prosecution  for  (describe  offense). 

Richard  Roe.  ) 

In  this  case,  the  prosecution  appearing  to  be  malicious  and  frivolous, 
the  costs  are  taxed  against  John  Doe,  the  prosecutor. 

John  Marshall, 
Judge  of  the  County  Court. 

1.  Statutes  requiring  the  unsuccess-  Idaho.  —  Rev.  Stat.  (1887),  §  8302. 

ful  prosecutor  of  a  criminal  action  to  Iowa.  —  Code  (1897),  6§  5238,  5606. 

pay  costs    exist  in  many  states.     His  Maine.  —  Rev.  Stat.  (1882),  c.  82,   ^ 

liability   depends    sometimes    upon    a  125. 

certificate  that  the  prosecution  was  ma-  Michigan.  —  How.  Anno.  Stat.  (1882), 

Miciousor  without  probable  cause,  some-  §§  7110,  9063. 

times  upon  the  absence  of  the  certificate  North  Dakota.  —  Rev.   Codes   (1895), 

that  the  prosecution  was  founded  upon  §  7965. 

probable   cause   and   sometimes   upon  Ohio.  —  Bates'  Anno.   Stat.  (1897),  § 

the  mere  failure  of  the  prosecution.  6471. 

Alabama. —  Crim.  Code  (1886),  §  4355.  Tennessee.  —  Code    (1896),    §§    761 1- 

Arizona.  —  Pen.  Code  (1887),  §§  2229,  7613. 

2230.  Virginia.— Code  (1887),  §  4081. 

Colorado.  —  Mills  Anno.  Stat.  (1891),  Washington.  —  2    Hill's   Anno.    Stat. 

§  696.  (1891),  §  1224. 

Georgia.  —  3  Code  (1895),  §  1082. 

881  Volume  5. 


6589.  COSl'S.  6589. 

VI.  ACTION  TO  RECOVER  COSTS  AGAINST  PARTY  DISCONTINUINQ 

ACTION. 

Form  No.  6589. 

(Precedent  in  Griffin  v.  Farwell,  20  Vt.  151.)' 

[State  of  Vermont,       )  To  any  sheriff  or  constable  in  the  state  or  to 
Rutland  County,  ss:  \  Daniel  Doe,  an  indifferent  person,  Greeting: 

By  the  authority  of  the  state  of  Vermont,  you  are  hereby  com- 
manded to  attach  the  goods,  chattels  or  estate  of  Richard  Farwell, 
of  Rutland,  in  the  county  of  Rutland,  to  the  value  of  twenty  dollars, 
and  him  notify  thereof  according  to  law;  and  also  notify  him  to 
appear  before  the  County  Court  next  to  be  held  at  Rutland,  within 
and  for  said  county  of  Rutland,  on  the  second  Tuesday  oi  June,  i84^7, 
and  also  notify  him  to  cause  his  appearance  herein  to  be  entered  with 
the  clerk  of  said  court,  on  or  before  the  expiration  oi  forty -two  days 
from  the  date  thereof,  then  and  there,  in  said  court,  to  answer  to 
John  Griffin  of  Rutland,  in  a  plea  of  trespass  on  the  case]^  for  that, 
to  wit,  on  or  about  \.\vt  first  day  of  May,  18^,  at  Westhaven  in  the 
county  of  Rutland,  the  defendant,  without  any  cause  of  action,  prayed 
out  a  writ  of  attachment  in  his  favor  against  the  plaintiff,  in  due 
form  of  law,  signed  by  William  C.  Kittridge,  justice  of  the  peace  in 
and  for  the  county  of  Rutland  aforesaid,  and  returnable  before  said 
justice  Kittridge,  at  Westhaven  aforesaid,  on  the  second  dz-y  oi  June, 
18^;  and  afterwards,  to  wit,  on  or  about  the  y?/'/<f^«/// day  oi  May, 
\ZJf5,  the  defendant  procured  to  the  said  writ  to  be  legally  served  on 
the  plaintiff,  at  Fairfax  in  the  county  of  Franklin,  by  Reuben  Dewey, 
who  then  was  and  still  is  legal  constable  of  the  town  of  Fairfax 
aforesaid,  by  arresting  the  body  of  the  plaintiff  thereon,  and  after 
the  service  of  said  writ  on  said  plaintiff,  and  before  the  return  day 
thereof,  he,  the  plaintiff,  incurred  great  costs  and  expenses  and 
charges  in  procuring  evidence,  taking  depositions  and  retaining 
counsel  to  defend  said  suit,  to  wit,  the  sum  oi  twenty  dollars;  and 
after  the  plaintiff  had  incurred  the  said  costs  and  expenses,  as 
aforesaid,  and  before  the  return  day  of  said  writ,  to  wit,  on  the 
thirtieth  day  of  May,  18^,  the  defendant,  without  the  consent  of  the 
plaintiff,  and  against  his  will,  and  with  a  view  to  prevent  the  plain- 
tiff from  recovering  his  said  costs,  so  incurred  in  preparing  to  defend 
said  suit,  as  aforesaid,  withdrew  and  discontinued  his  said  suit  against 
the  plaintiff,  and  neglected  and  refused  to  return  said  writ  to  said 
justice  Kittridge,  and  wholly  neglected  and  refused  to  enter  and 
prosecute  his  said  suit  against  the  plaintiff;  whereby  the  plaintiff 
was  prevented  from  recovering  before  said  justice  Kittridge  his  said 
costs,  so  by  him  incurred  as  aforesaid;  and  that  the  defendant  has 
hitherto  neglected  and  refused  to  pay  said  costs  to  the  plaintiff,  [to 

1.  It  was  held  in  this  case  that  the  he  had  incurred  in  preparing  his  de- 
plaintifl  might  sustain  an  action  of  tres-     fense. 

pass  on  the  case  against  the  defendant,  2.  The  words  and  figures  within  [  ] 
and  was  entitled  to  recover  at  least  to  are  not  in  the  reported  case,  but  have 
the  extent  of  the  taxable  costs   which     been  added  to  complete  the  form. 

822  Volume  5. 


6690.  COSTS.  '  6590. 

the  damage  of  the  plaintiff  in  the  sum  of  twenty  dollars,   for  the 
recovery  of  which,  with  just  costs,  the  plaintiff  brings  suit. 

Fail  not,  but  service  and  return  make  within  twenty-one  days  from 
date. 

Dated  at  Rutland  in  the  county  of  Rutland  this  8th  day  of  May^ 
A.  D.  1847. 

Abraham  Kent,  QXtxV.Y 

VII.  Notice  to  recover  illegally  exacted  costs. 

Form  No.  6590.' 

To  John  Hancock,  Clerk  of  the  Circuit  Court,  County  of  I^on,  Florida-. 
Take  notice  that  in  the  Circuit  Court  for  the  county  of  Leon  on 
Friday,  the  fourteenth  day  oi  May,  \W1,  John  Doe  will  apply  for  an 
inquiry  into  the  validity  of  certain  charges  and  fees,  from  him  exacted 
by  you,  the  said  John  Hancock,  in  the  case  oi  John  Doe  against  Richard 
Roe  in  this  court  tried ;  the  said  charges  and  fees  which  said  John  Doe 
claims  were  invalid  and  excessive,  being  (^Here  specify'),  and  in  case 
said  charges  and  fees  shall  be  found  to  be  invalid  and  unlawfully 
exacted,  he  will  move  for  judgment  against  you,  the  said  John 
Hancock,  according  to  the  statute. 

Jeremiah  Mason,  Attorney  for  John  Doe. 

1.  The  words  and  figures  enclosed  by        2.  Florida.  —  Rev.  Stat.  (1892),  §  1305, 
[  ]  will   not  be  found  in   the  reported     subs.  2. 
case,   but  have  been  added  to  render 
the  form  complete. 

823  Volume  5. 


COUNTERCLAIM. 

See  the  title  SET-OFF  AND  COUNTERCLAIM. 


COUNTERFEITING. 

By  Walter  R.  Dedrick. 

I.  MAKING  Counterfeit  money,  825. 

1.  Coin,  825. 

a.  Generally,  825. 

b.  Minor  Coin,  829. 

c.  Foreign  Coin,  830. 

(i)  Generally,  830, 

(2)    With  Intent  to  Export  Same,  831. 

d.  Gilding  Coin,  831. 

e.  Tokens  in  Resemblance  of  Coin,  832. 

2.  Paper  Money,  832. 

II.  Uttering  and  passing  Counterfeit  Money,  834. 

1,  Coin,  834. 

a.  Generally,  834. 

b.  Foreign  Coin,  837. 

c.  Gilded  Coin,  838. 

d.  Bringing  Coin  into  the  United  States  with  Intent  to 

Defraud,  839. 

2,  Paper  Money,  839. 

a.  Generally,  839. 

b.  Foreign  Bank  Note,  844. 

III.  Selling  and  bartering  counterfeit  money,  845. 

1.  Selling,  845. 

2.  Advertising  Green  Goods,  846. 

IV.  HAVING  Counterfeit  money  in  One's  possession,  847. 

1.  Coin,  847. 

a.  Generally,  847, 

b.  Foreign  Coin,  850, 

2.  Paper  Money,  851. 

a.  Generally,  851. 

b.  Blank  and  Unfinished  Bank  Note,  855, 

c.  Foreign  Bank  Note,  856. 

V.  MAKING  INSTRUMENTS  FOR  COUNTERFEITING,  856. 

824  Volume  5. 


6591.  COUNTERFEITING.  6591. 

VI.  HAVING  INSTRUMENTS  IN  ONE'S  POSSESSION,  857. 
1.  For  Counterfeiting  Coin,  857. 

a.  Generally,  857. 

b.  Foreign  Coin,  859. 

c.  One  Side  Only,  861. 

a.  For  Counterfeiting  Gold  Dust,  86 1 . 

CROSS-REFERENCES. 

For  Forms  of  Indictments  for  Counterfeiting  Trade-marks,  see  the  title 
TRADE-MARKS. 

For  Forms  of  Indictments  for  Kindred  Offense,  see  the  title  FORGER  Y. 

For  matters  of  Procedure,  generally,  see  the  title  COUNTERFEIT- 
ING, 5  Encyclopaedia  of  Pleading  and  Practice,  p.  266. 

I.  MAKING  COUNTERFEIT  MONEY. 

1.  Coin. 

a.  Generally. 

Form  No.  6591 .' 

In  the  District  Court  of  the  United  States  of  America  for  the  Northern 

District  of  Illinois. 

Of  the  October  Term,  in  the  year  of 
our  Lord  eighteen  ninety-seven. 
Northern  District  of  Illinois,  set.  The  grand  jurors  for  the  United 
States  of  America,  inquiring  within  and  for  the  Northern  District  of 
Illinois,  upon  their  oath  present  that  John  Doe,  late  of  the  city  of 
Chicago,  in  the  county  of  Cook,  in  the  district  aforesaid,  on  tht  first 
day  of  August,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-seven,  and  within  the  jurisdiction  of  this  court,*  unlawfully 
and  feloniously  did  falsely  make,  forge  and  counterfeit  (or  cause  and 
procure  to  be  falsely  made,  forged  and  counterfeited^  a  large  number,  to 
wit,  fifty,  false,  forged  and  counterfeit  gold  (or  silver)  coins  (or  bars\ 
each  in  the  resemblance  and  similitude  ^  of  a  gold  (or  silver)  coin  (or 

1.  United  States.  —  Rev.  Stat.  (1878),  coined  at  the  mint  of  the  United  States. 
§  5457.  The  court  held  that  the  words  of  the 

2.  Likeness  and  Similitude  of  Coins  statute  "  in  resemblance  or  similitude" 
Coined  at  Mint.  —  Upon  an  indictment,  are  a  mere  variation  or  exposition  of 
found  on  section  5457  of  the  Revised  the  principal  and  preceding  words 
Statutes,  which  states  that  "  the  defend-  thereof,  "  falsely  make,  forge  or  coun- 
ants  did  falsely  and  feloniously  make,  terfeit,"  each  of  which  means  to  make 
forge  and  counterfeit  four  pieces  of  something  in  the  resemblance  or  simili- 
silver  coin  of  the  coinage  of  the  United  tude  of  another,  and  that  to  falsely 
States  of  America,  called  a  dollar,  con-  make,  forge  or  counterfeit  a  silver  coin 
trary  to  the  statutes,"  etc.,  a  conviction  of  the  coinage  of  the  United  States  is  to 
was  had,  and  upon  motion  in  arrest  of  make  something  in  the  "  resemblance 
judgment  it  was  urged  that  the  indict-  or  similitude"  of  such  coin;  that  the 
ment  did  not  state  a  crime,  in  that  phrase  "  coinage  of  the  United  States" 
it  did  not  state  that  the  coins  in  is  the  exact  legal  equivalent  of  "coined 
question  were  made  in  the  similitude  at  the  mints  of  the  United  States."  U.S. 
and  resemblance   of   any   silver  coins  v.  Otey,  31  Fed.  Rep.  68. 

825  Volume  5. 


6592. 


CO  UNTERFEITING. 


6592. 


bar),  coined  and  stamped  at  the  mints  (or  assay  offices')  of  the  United 
States,  called  an  eagW^  (or  a  dollar)^  against  the  peace  and  dignity 
of  the  United  States,  and  contrary  to  statute  of  the  same  in  such  case 
made  and  provided. 

Daniel  Webster, 
United  States  District  Attorney. 


Form  No.  6592.* 

In  the  Posey  Circuit  Court  of  Indiana,  of  the  February  Term,  i897. 
State  of  Indiana 
against 

John  Doe. 

The  grand  jury  of  the  county  oi  Posey,  Vi'povi  their  oath,  do  present: 
that  yM«  Doe,  on  the  first  day  of  January,  iS97,  at  the  county  of 


Intent  to  Defraud.  —  The  knowledge 
and  intent  to  defraud  mentioned  in  sec- 
tion 5457  of  the  Revised  Statutes  refers 
to  the  crime  of  passing  counterfeit 
money  or  having  same  in  one's  posses- 
sion, and  an  indictment  for  counterfeit- 
ing need  contain  no  averment  as  to 
knowledge  or  intent.  U.  S.  v.  Otey, 
31  Fed.  Rep.  68;  U.  S.  v.  Peters,  2  Abb. 
(U.  S.)  494;  U.  S.  V.  Russell,  22  Fed. 
Rep.  390;  U.  S.  V.  King,  5  McLean  (U. 
S.)  2o3. 

1.  Description  of  Coin.  —  The  desig- 
nation in  the  indictment  of  the  coins, 
alleged  to  have  been  made,  as  coins 
called  fifty  cent  pieces  and  twenty-five 
cent  pieces,  instead  of  the  half  dollar 
and  the  quarter  dollar,  by  which  names 
they  are  called  in  the  act  of  congress, 
regulating  the  coinage  of  the  country, 
is  not  a  material  variance,  and  will  not 
support  a  motion  in  arrest  of  judgment. 
U.  S.  V.  Burns,  5  McLean  (U.  S.)  23. 
And  describing  coins  in  the  alternative 
form,  as  "  fifty  cent  pieces  or  half  dol- 
lars," is  not  objectionable.  U.  S.  v. 
Burns,  5  McLean  (U.  S.)  23. 

2.  Or  if  bars,  describing  said  bars, 
giving  weight,  fineness  and  device 
stamped  thereon. 

8.  Indiana. —  Horner's  Stat.  (i8q6),  § 
2208. 

For  similar  statutes  see  as  follows: 

Alabama.  —  Crim.  Code  (1896),  § 
3856. 

Arizona.  —  Pen.  Code  (1887).  §  747. 

Arkansas.  — Sand.  &   H.  Dig.  (1894), 

S  1591- 

California.  —  Pen.  Code  (1897),  §  477. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  1259. 

Connecticut.  —  Gen.  Stat.  (x888),  § 
1578. 


Florida.  —  Rev.  Stat.  (1892),  §  2493. 

Georgia.  —  3  Code  (1895),  §  235. 

Idaho.  — "^^v.  Stat.  (1887),  §  7035. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  1287,  par.  228. 

Iowa.  — Code  (1897),  §  4861. 

Kansas.  —  Gen.  Stat.  (1889),  §  2254. 

Maine.  —  Rev.  Stat.  (1883),  c.  121,  §  2. 

Maryland.  —  Pub.  Gen.  Laws  (1888), 
P-  470,  §  36. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
204,  §  14. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§  9227. 

Mississippi.  —  Anno.  Code  (1892),  § 
1098. 

Montana. —  Pen.  Co4e  (1895),  §    847. 

Nebraska.  —  Comp.  Stat.  (1S97),  § 
6815. 

Nevada.— G&n.  Stat.  (1895),  §  4638. 

Neiv  Hampshire. — Pub.  Stat.  (1891), 
c.  274,  §  8. 

New  fersey.  —  Gen.  Stat.  (1895),  p. 
1081,  §  180. 

New  Mexico.  —  Comp.  Laws  (1884),  § 

794. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
7099. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§  1813. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1138,  §99. 

Rhode  Island. — Gen.  Laws  (1896),  c. 
280,  §  7. 

Tennessee.— CoAe.  (1896),  §§  6614, 
6619. 

67a/4.  — Rev.  Stat.  (1898),  §  4350. 

Vermont. — Stat.  (1894),  §4984. 

Virginia.— Code  (1887),  §  3735. 

Washington.  —  Pen.  Code  (1891),  § 
66. 

West  Virginia.  — Code  (1891),  c.  146, 
§3. 


886 


Volume  5. 


6593.  COUNTERFEITING.  6593. 

Posey  aforesaid,  unlawfully  and  feloniously,  did  falsely  forge  and 
counterfeit  ten"^  pieces  of  coin,  each  piece  in  the  likeness  and  simili- 
tude of  the  gold  (or  silver)  coin  of  the  United  States,  called  a  dollar,^ 
and  at  that  time  current  in  the  state  of  Indiana^  with  intent  to 
defraud  some  person  or  persons  to  the  grand  jury  unknown,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  state  of  Indiana. 

Daniel  Webster^  Prosecuting  Attorney. 

Form  No.  6593. 

(Precedent  in  State  v.  Griffin.  18  Vt.  199.) 

[State  of  Vermont,  \ 
Addison  County.  \ 
Be  it  remembered,  that  at  a  County  Court  begun  and  holden  at 
Middlebury,  within  and  for  the  county  of  Addison,  on  \.\iQ  first  Tuesday 
of  June,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
forty-five,  the  grand  jurors  within  and  for  the  body  of  the  county  of 
Addison  aforesaid,  now  here  in  court  duly  impaneled  and  sworn,  upon 
their  oath  present  that  James  Griffin,  at  Weybridge  in  the  county  of 
Addison  aforesaid,]*  with  intent  the  good  people  of  this  state  andjof 
the  United  States  to  deceive  and  defraud,  with  force  and  arms,  on 
the  tenth  day  of  April  A.  d.  i8^5,  ten  pieces  of  false,  forged  and  coun- 
f  jit  coin  and  money,  of  pewter,  lead,  tin  and  zinc  and  other  mixed 
metals,  in  the  similitude  of  the  good,  legal  and  current  money  and 
silver  coins  of  the  United  States,  [which  are  current  by  law  and  usage 
in  this  state,]*  called  '•'■half  dollars,"  then  and  there  unlawfully,  and 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat,  tions  thereon.     Peek  z'.  State,  2  Humph. 

(1889),  §  4459.  (Tenn.)  78.     See  also  U.  S.  v.  Otey,  31 

Wyomin;^.  —  Rev.  Stat.  (1887),  §  925.  Fed.    Rep.  68;   State  v.  Griffin,   18  Vt. 

In  Missouri  it  is  provided  that  a  per-  198. 

son  counterfeiting  coin  "  shall,  if  such  3.  Time  When  Corrent.  —  An  indict- 

ofifense  be  not  punishable  by  the  laws  ment  upon  a  statute  for  counterfeiting 

of  the  United  States,  on  conviction,  be  coin  "at  the  time  current  in  thi§  state 

guilty,"    etc.       Rev.     Stat.    (1889),    §  by  law  or  usage"  must  allege  the  gen- 

3632.  uine    coin   to    be    current     when    the 

1.  Komber  of  Piecet. —  Where  an  in-  counterfeit  is  made,  for  there  is  no  of- 

dictment  alleged  that  the  accused  "did  fense  if  the  coin  has  gone  out  of  circu- 

falsely    make,    forge    and     counterfeit  lation.    State  v.  Shoemaker,  7  Mo.  177. 

the  silver  coin  of  the  United  States,  to  4.  The  words  enclosed  by  [  ]  will  not 

wit,  the  silver  coin  commonly  known  be  found  in  the  reported  case,  but  have 

and  called  a  dollar,  and  did    make  in  been   added   to  render   the  form  com- 

the  resemblance  and  similitude  of  the  plete. 

silver  dollar    (a   coin    of   the    United  5.  Allegation  of  Currency  of  Coin  ITn- 

States),  certain  forged  and  counterfeit  neceMary. —  It  was  held  that  the  allega- 

coins  of  base  metal,  with  intent,"  etc.,  tion  enclosed  by  [  ]  would  by  reasonable 

it  was  held  that  the  failure  to  state  the  intendment  have  reference  to  the  time 

number  of  counterfeit  coins   rendered  of  presenting  the  indictment  instead  of 

the   indictment   insufficient.       U.  S.  z/.  the  time  of  committing  the  offense,  and 

Weikel,  8  Mont.  124.  hence  would  be  bad  unless  such  aver- 

8.  Description  of  Coin.  —  The  indict-  ment  were  wholly  unnecessary  and 
ment  must  particularly  set  forth  the  might  therefore  be  rejected  as  surplus- 
kind  of  coin  alleged  to  be  counterfeited  age,  which  was  the  case.  Redfield,  J., 
by  denomination  or  name,  but  it  is  not  said,  "  Neither  the  law  or  usage  of  this 
necessary  to  set  forth  devices  or  inscrip-  state  can  have  effect  to  create  currency; 

887  Volume  5. 


6594.  COUNTERFEITING.  6596. 

feloniously  did  forge,  make  and  counterfeit,  ^  contrary  [to  the  form, 
force  and  effect  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  state.  J^ 

Form  No.  6594.' 

The  State  of  Texas 

•against 

John  Doe. 

In  the  name  and  by  the  authority  of  the  state  of  Texas. 

The  grand  jurors  for  the  county  oi  Freestone.,  state  aforesaid,  duly 

organized  as  such  at  the  October  term,   a.   d.   i896,   of  the  District 

Court  for  said  county,  upon  their  oaths  in  said  court  present:  That 

John  Doe.,  on  Xht  first  day  of  May,  a.  d.  i856,  in  the  county  and  state 

aforesaid,    did   fraudulently,    with  intent  that  the  same   should  be 

passed  in  this  state  and  elsewhere,  make  and  counterfeit  yf/Zy  coins 

in  the  semblance  of  true  gold  {ox  silver')  coins  of  the  denomination  of 

one  dollar,  the  said  counterfeited  coins  having  in  their  composition  a 

less  proportion  of  the  precious  metal  aforesaid,  of  which  the  true 

coin  intended  to  be  imitated  is  composed,  than  is  contained  in  said 

true  coin,  and  which  said  true  coin,  so  counterfeited  as  aforesaid, 

then  and  there  by  law  and  usage  passed  as  money  in   the  United 

States,  against  the  peace  and  dignity  of  the  state. 

Andrew  Jackson, 
Foreman  of  the  Grand  Jury. 

Form  No.  6595.* 

Supreme  Court,  Rensselaer  County. 
The  People  of  the  State  of  New  York 
against 
John  Doe. 

The  grand  jury  of   the  county  of  Rensselaer  by  this  indictment 
accuse  John  Doe  of  the  crime  of  forgery  in  the  second  degree,  com- 

and  we  cannot  suppose  that  the  legisla-  of  the  false  and  not  of  the  true  coin, 

ture,  in  enacting  the  statute,  had  refer-  the  confusion  of  ideas  arising  only  from 

ence  to  any  other  currency,  except  the  the  ambiguous  use  of  the  word  "coun- 

legal  currency  of  the  United  States.  And  terfeit"  in  two  different  senses, 

in  this  indictment  it  is  alleged  that  the  2.  See  supra,  note  4,  p.  827. 

coin   was  in    imitation  of   the   current  3.    Texas.  —  Pen.    Code   (1895),    arts, 

money  and  silver  coin  of  the    United  557,  564. 

States,  called  half-dollars.    This  is  suf-  4.  Forgery  in  the  Second  Degree.  —  In 

ficient;    and   the   additional   averment  some  states  the  statute  provides  that  a 

that  they  were  current  by  law,  or  usage,  person  is  guilty  of  forgery  in  the  sec- 

in  this  state  is  only  drawing  a  conclu-  ond  degree  who,  with  intent  to  defraud, 

sion  from  the  general  state  of  the  laws  forges  any  gold  or  silver  coin,  whether 

of   this   state   and   the   United   States,  of   the   United   States  or   any   foreign 

which  will  always  be  judicially  noticed  state,  government  or  country.     Minn, 

by  the  court."  Stat.  (1894),  §  6692;  N.  Y.  Pen.  Code,  § 

1.  The  allegation  that  the  defendant  511  (Birds.    Rev.  Stat.  (1896),  p.  1330, 

"  ten  pieces  of  false,  forged  and  coun-  §  5);  N.  Dak.  Rev.  Codes  (1895),  ^  2428. 

terfeit  coin,"  etc.,  "  did  forge,  make  and  The  territory  of  Oklahoma  has  a  simi- 

counterfeit,"  was  held  to  be  not  open  to  lar  statute,   but  does   not   denominate 

the  objection   that  the  defendant  was  the   offense   forgery.     See  Okla.  Stat, 

charged  with  making  coin  in  imitation  (1893),  §  2354. 

828  Volume  5. 


6596.  COUNTERFEITING.  6597. 

mitted  as  follows:  The  sdixd  John  Doe  on  theyfrj/day  oi  June,  a.  d. 
i8P7,  at  the  city  of  Troy,  in  this  county,  did  falsely,  fraudulently  and 
feloniously  make,  forge  and  counterfeit  ten  pieces  of  the  gold  (or  sil- 
ver) coin  of  the  United  States,  each  of  which  said  pieces  was  called 
a  dollar,  with  intent  to  defraud  some  person  or  persons  to  the  grand 
jury  aforesaid  unknown. 

Benjamin  F.  Butler, 
District  Attorney  of  the  County  of  Rensselaer. 

b.  Minor  Coin. 

Form  No.  6596.' 

(Commencing  as  in  Form  No.  6591,  and  continuing  down  to  *)  unlaw- 
fully and  feloniously  did  falsely  make,  forge  and  counterfeit  {or  cause 
and  procure  to  be  falsely  made,  forged  and  counterfeited  or  willingly 
aid  and  assist  in  falsely  making,  forging  and  counterfeiting)  five  hundred 
coins,*  in  the  resemblance  and  similitude^  of  the  minor  coinage,^ 
which  had  theretofore  been  coined  at  the  mints  of  the  United  States, 
to  wit,  five  hundred  coins  called  five  (or  three  or  one)  cent  pieces^ 
against  the  peace  {concluding  as  in  Form  No.  5691). 

Form  No.  6597. 
(Bullitt's  Critn.  Code  Ky.  (1895).  p.  148.  No.  3.)* 

Franklin  Circuit  Court. 
The  Commonwealth  of  Kentucky  \ 
against  >• 

John  Doe.  ) 

The  grand  jury  oi  Franklin  coiyity,  in  the  name  and  by  the  author- 
ity of  \.\\t  commonwealth  oi  Kentucky,  dLCcnst  John  Doe  of  the  crime  of 
counterfeiting,  committed  as  follows,  viz. :  The  said  John  Doe  on  the 
first  day  of  September,  iS97,  in  the  county  aforesaid,  did  counterfeit 
one  hundred  copper  coins  of  the  United  States,  known  as  one  cent 
pieces,  which  were  then  passing  as  current  money  in  Xht  commonwealth 
of  Kentucky,  with  intent  to  defraud,  against  the  peace  and  dignity  of 
the  commonwealth  of  Kentucky. 

1.  United  States.  — Kev.  Stat.  (1878),  New  fersey.—Gtn.  Stat.  (1895).  p. 
§5458.  io8i,§i8i. 

2.  See  JM/rrt,  note  2,  p.  825.  Ohio.  —  Bates'  Anno.    Stat.   (1897),  ^ 

3.  As   to  what  are  minor  coins,  see  7099. 

U.  S.  Rev.  Stat.  (1878),  §  3515.  Oregon.  — WiW's  Anno.   Laws  (1892), 

4.  Kentucky.  — Stdil.  (1894).  §  I181.         §  1813. 

Similar  statutes  exist  in  other  states  Pennsylvania.  —  Pepp.     &    L.     Dig. 

as  follows:  (1894),  p.  1141,  §  105. 

^/a^awa.  —  Crim.  Code (1886),  §3856.  Tennessee.  —  Code    (1896).    §§   6614, 

Georgia.  —  3  Code  (1895).  §  235.  6619. 

Nebraska.  —  Com^.    Stat.    (1897),    §  F»>§i«ia. —Code  (1887),  §  3735. 

6815.  West  Virginia. — Code  (1891),  c.  146, 

839  Volume  5. 


6598. 


CO  UNTERFEITING. 


6599. 


c.  ForeigTi  Coin. 
(1)  Generally. 

Form  No.  6598.' 

{Commencing  as  in  Form  No.  6596,  and  continuing  down  /<?  *)  in  the 
resemblance  and  similitude  of  a  foreign  silver  {or  go/d)  coin,  to  wit, 
a  silver  (or  golcT)  coin  of  the  Dominion  of  Canada  called  a  ten  cent 
piece,  which  was  then  in  actual  use  and  circulation  as  money  within 
the  United  States  (or  which  said  coin  is  by  law  current  in  the  United 
States\^  against  the  peace  (concluding  as  in  Form  No.  6591). 


'  V  Circuit  court,  February  term,  \%97. 


Form  No.  6599. 
(Ala.  Crim.  Code  (1886),  p.  269,  No.  30.)* 

The   State  of  Alabama, 
Dale  county. 

The  grand  jury  of  said  county  charge  that,  before  the  finding  of 
this  indictment,*  John  Doe  counterfeited  a  silver  coin  of  the  republic 
of  Mexico,  called  a  dollar,  which  was  at  the  time,  by  law,  usage  and 
custom,  current  in  this  state,  against  the  peace  and  dignity  of  the 
state  of  Alabama. 

Daniel  Webster, 
Solicitor  of  the  third  z\xz\\\\.. 


1.  United  States.  — Kcv.  Stat.  (1878), 

§  5457- 

2.  Foreign  Coin  Not  Current  in  the 
United  States. — ^  An  indictment  alleging 
that  "'foseph  Gardner,  late  of  the  town- 
ship of  Bloomfield,  in  the  county  of 
Essex,  and  in  the  district  of  New  Jersey, 
on  the  i^th  day  oi  June,  in  the  year  of 
our  Lord  iSjj'.  with  force  and  arms, 
etc.,  at  the  township  of  Bloomfield,  in 
the  county  of  Essex,  in  the  district  of 
New  Jersey  aforesaid,  and  within  the 
jurisdiction  of  this  court,  did  falsely 
and  feloniously  make,  forge  and  coun- 
terfeit one  hundred  pieces  of  false  and 
counterfeit  coin,  each  piece  thereof  in 
the  resemblance  and  similitude  of  a 
foreign  coin,  to  wit,  a  silver  coin  of 
Spain  called  a  head  pistareen,  which  by 
law  was  then,  and  still  is,  made  cur- 
rent in  the  United  States  of  America; 
against  the  form  of  the  statute  of  the 
United  States  of  America  in  such  case 
made  and  provided,"  and  in  a  second 
count  charged  that  the  accused  "did 
feloniously  and  willingly  aid  and  assist 
in  falsely  and  feloniously  making,  forg- 
ing and  counterfeiting  one  hundred 
pieces  of  false  and  counterfeit  coin," 
describing  them  as  in  the  first  count, 
was  held  bad  for  the  reason  that  the 
coin  described  in   the  indictment  was 


not  a  part  of  the  Spanish  milled  dollars 
and  not  a  silver  coin  of  Spain,  made 
current  by  law  in  the  United  States, 
as  was  then  necessary  under  the  20th 
section  of  the  act  of  1825.  U.  S.  v. 
Gardner,  10  Pet.  (U.  S.)  618. 

3.  Alabama.  — Cx'wa.  Code  (1886),  § 
3856. 

Substantially  the  same  form  is  given 
in  Hill's  Anno.  Laws  Oregon  (1892),  p. 
1004,  No.  17;  Minn.  Stat.  (1894),  §  7239, 
No.  22.  In  Minnesota,  however,  the 
crime  is  called  forgery  in  the  second 
degree.     See  Minn.  Stat.  (1894),  ^  6692. 

For  statutes  of  similar  tenor  see  as 
follows: 

New  Jersey.  —  Gen.  Stat.  (1895),  p. 
1081,  §  181. 

North  Carolina.  —  Code  (1883),  §  IO35. 

Virginia. —  Code  (1887),  §  3735. 

Under  the  New  Jersey  statute,  how- 
ever, it  is  not  necessary  that  the  coin 
should  at  the  time  be  current  in  the 
state. 

Aiding  and  Assisting.  —  Where  the  in- 
dictment charged  that  the  defendant 
"did  feloniously  aid  and  assist  jSazrt- 
leel  Phelps,  in  making  and  counterfeit- 
ing fifteen  French  guineas,  one  hundred 
Spanish  milled  dollars,  and  one  hundred 
pistareens,  of  false  and  base  metal,  in 
likeness    and    imitation    of    the    true 


830 


Volume  5. 


6600.  CO  UNTERFEITJNG.  660 1 . 

(2)  With  Intent  to  Export  Same. 
Form  No.  66oo.* 
State  of  Maine. 

Kennebec,  ss.  At  the  Superior  Court,  begun  and  holden  at  Augusta, 
within  and  for  said  county  of  Kentubec,  on  the  first  Tuesday  of  Septem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 
seven,  the  grand  jurors  for  said  state  upon  their  oath  present  thz.X.  John 
Doe  of  Augusta,  in  the  county  of  Kennebec,  laborer,  at  Augusta,  in  said 
county  of  Kennebec,  on  X.\\e  first  day  of  August,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  ninety-sei'en,  with  force  and  arms,  did 
then  and  there  wilfully,  unlawfully  and  feloniously  forge  and  coun- 
terfeit yf/Zy  gold  (or  silver^  coins,  each  in  the  resemblance  and  simili- 
tude of  a  true  and  genume  gold  (or  silver)  coin  of  Great  Britain, 
called  a  sovereign  (or  shilling'),  with  intent  then  and  there  to  export 
the  said  false,  forged  and  counterfeit  coins  to  Great  Britain,  and  with 
the  intent  and  for  the  purpose  of  defrauding  the  said  foreign  govern- 
ment and  its  subjects,  against  the  peace  of  said  state,  and  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided. 

Richard  Roe ^  Forema 

Daniel  Webster.,  County  Attorney. 

d.  Gilding  Coin.* 

Form  No.  6 6 oi.' 

The  State  of  Nebraska,  \  ^^ 
Lancaster  County.  X 

Of  the  October  term  of  the  District  Court  of  the  second  \xid\Q\z\  dis- 
trict of  the  state  of  Nebraska  within  and  for  Lancaster  county,  in  said 

coins,"  etc.,  it  was  held  that  the  allega-  Ohio.  —  Bates'  Anno.    Stat.  (1897),  § 

tion  that  defendant  aided  and  assisted  7100. 

was  substantially  the  same   as  that  he  Pennsylvania.  —  Pepp.     &     L.     Dig. 

did  counterfeit.    State  ».  Stutson,  Kirby  (1894),  p.  1139,  §  100. 

(Conn.)  52.  English  Precedent.  —  In   Reg.  v.  Tur- 

1.  Maine.  —  Rev.  Stat.  (1883),  c.  121,  ner,  2  Moody  C.  C.  43.  will  be  found 
^  5.  the  following  indictment,  to  wit: 

See   also   the   following    statutes   of  "  The  jurors  of  our  lady  the  Queen 

similar  tenor,  to  wit:  upon  their  oath  present,  \.\i?n  Alexander 

lo-iva.  — Code  (1897),  §  4868.  Turner,  late  of  the  parish  of  St.  Mary 

Mississippi. — Anno.      Code     (1892),  Afat/elow,  o^hcrvixsc  IVhiteckapel,  in  the 

§  1099.  county   of  Middlesex,  and    within    the 

North  Dakota.  —  Rev.    Codes   (1895),  jurisdiction  of  the  said  Court,  laborer, 

§  7429.  on  the  2jth  day  oi  January,  in   the  ist 

Oklahoma.  —  Stat.  (1893),  §  2355.  year  of  the  reign  of  our  sovereign  Lady 

2.  Mntilating  Coin.  —  For  a  statute  Victoria,  by  the  grace  of  God,  of  the 
punishing  the  defacing,  mutilating,  im-  United  Kingdom  of  Great  Britain  and 
pairing,  diminishing,  falsifying,  scaling  Ireland,  Queen,  Defender  of  the  Faith, 
or  lightening  of  coin  see  U.  S.  Rev.  with  force  and  arms,  at  the  parish 
Stat.  (187S),  §  5459.  aforesaid,  and  within  the  jurisdiction  of 

8.  Nebraska.  —  Comp.  Stat.  (1897),  §  the  said  Court,  three  pieces  of  the 
6816.  Queen's  current  silver  coin  called  six- 

Similar  statutes  exist  in  the  follow-  fences,  then  and  there  feloniously  did 
ing  states,  to  wit:  gild  with  materials  capable  of  produc- 

881  Volume  5. 


6602.  COUNTERFEITING.  6603. 

state,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 
sroen,  the  grand  jurors,  chosen,  selected  and  sworn,  in  and  lor  the 
county  of  Lancaster ,  in  the  name  and  by  the  authority  of  the  state  of 
Nebraska^  upon  their  oaths  present  that  John  Doe,  late  of  the  county 
aforesaid,  on  the  first  day  of  August,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  2i^dininety-seven,m  t\\^  county  of  Lancaster  y 
and  state  of  Nebraska  aforesaid,  then  and  there  being,  did  unlawfully, 
wilfully  and  feloniously*  gild  a  large  number,  to  wit,  y?/"/>' silver  coins, 
then  currently  passing  in  the  said  state  of  Nebraska,  called  quarter 
dollars,  thereby  giving  to  each  of  said  silver  coins  the  appearance  of  a 
certain  gold  coin  of  the  United  States,  to  wit,  of  a  half  eagle  {or  other 
gold  coin,  naming  it,  then  passing  in  the  state  of  Nebraska^,  with  intent  to 
injure  and  defraud,  contrary  to  the  form  of  the  statute  in  such  cases 
made  and  provided,  and  against  the  peace  and  dignity  of  the  state  of 
Nebraska. 

Daniel  Webster,  County  Attorney. 

e.  Tokens  in  Resemblance  of  Coin. 

Form  No.  6602.' 

{Commencing  as  in  Form  No.  6591,  and  continuing  down  to  *)  unlaw- 
fully and  feloniously  did  make  (or  cause  to  be  made)  ten  certain  coins 
of  gold  (or  silver),  of  original  design  and  intended  for  the  use  and 
purpose  of  current  money,  the  said  coins  then  and  there  being  coins 
not  authorized  by  law,  and  he,  the  said  John  Doe,  not  being  then  and 
there  authorized  by  law  to  make  the  same,  against  the  peace  {con- 
cluding as  in  Form  No.  6591). 

2.  Paper  Money. 

Form  No.  6603.* 

{Commencing  as  in  Form  No.  6591,  and  continuing  down  to  *)  unlaw- 

ing  the   color  of  gold,  with  intent   to  Notes  of  Foreign  Bank.  —  For  statute 

make     the    same     resemble    and    pass  prohibiting    the    counterfeiting   of    the 

for  the  Queen's  current  gold  coin  called  notes  of  any  bank  or  other  corporation 

half-siwereigns,   against  the  form,  etc.,  of  a  foreign  country  see  23  U.  S.  Stat, 

and  against  the  peace  of  our  said   lady  at  Large,  p.  22,  c.  52,  ^  3. 

the  Queen,  her  crown  and  dignity."  An  indictment  alleging  that  defend- 

1.  United  States.  —  Rev.  Stat.  (1878),  ant,  on  a  day  named,  "caused  to  be 
§  5461.  printed   three  certain  impressions,  each 

For  a  statute  prohibiting  the  making  in  the  likeness  of  a  certain  part,  to  wit, 

of  any  coin,  card,  token  or  device   in  the  face,  except  the  signatures  and  num- 

metal,  or  its  compounds,   intended   to  bers,  of  a  genuine  treasury  note  of  the 

be   used  as  money  in    place  of   any  of  denomination    of    200    niilreis    of    the 

the   minor   coins  see   U.S.  Rev.   Stat,  empire  of  ^raz//,  with  intent  to  defraud 

(1878),  §  5462.  said   empire,  and  other   parties  to  the 

2.  United  States. —  Rev.  Stat.  (1878),  grand  jurors  unknown,"  charges  an 
§§  5414,  5413.  offense    under  this  statute.     U.    S.    v. 

See  also  U.   S.   Rev.    Stat.  (1878),  §     White,  25   Fed.  Rep.   716.     See  also  U. 
5415,  which  prohibits  the  counterfeiting     S.  v.  Arjona,  I20  U.  S.  482. 
of  notes  issued  by  any  banking  asso- 
ciation. 

832  Volume  5. 


6604. 


CO  UNTERFEITING. 


6604. 


fully  and  feloniously,  with  intent  to  defraud,^  did  falsely  make, 
forge  and  counterfeit  a  certain  obligation  and  security  of  the  United 
States,  to  wit,  a  treasury  note  of  the  denomination  oi  fifty  dollars,  the 
tenor  of  which  said  false,  forged  and  counterfeited  treasury  note  is 
as  follows,  to  wit  {Here  set  out  a  copy  of  the  note),  agamst  the  peace 
{concluding  as  in  Form  No.  6591). 


Form  No.  6604  ' 


ss. 


Commonwealth  of  Massachusetts, 
County  of  Hampshire. 

At  the  Superior  Court,  begun  and  holden  at  Northampton,  within 
and  for  the  county  of  Hampshire,  on  the  second  Monday  of  September, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-seven. 

The  jurors  for  the  commonwealth  of  Massachusetts,  upon  their  oath, 
present  that  John  Doe,  late  of  Williamsburg,  in  the  county  of  Hamp- 
shire aforesaid,  on  the  first  day  of  July,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  niruty-seven,  at  Williamsburg  in  the 
county  aforesaid,  did  falsely  make,  forge  and  counterfeit  a  certain 
bank  bill  purporting  to  be  payable  to  the  bearer  thereof,  and  to  be 
signed  in  behalf  of  the  president,  directors  and  company  of  the 
Hampshire  County  Bank,  the  same  being  an  incorporated  banking 
company  by  law  licensed  and  authorized  as  a  bank  within  this  com- 
monwealth, which  said  forged  and  counterfeited  bank  bill  is  of  the 


1.  It  is  sufficient  to  charge  an  intent 
to  defraud  in  the  general  language  of 
the  statute,  without  setting  forth  the 
name  of  any  person  intended  to  be 
defrauded.  U.  S.  v.  Jolly,  37  Fed. 
Rep.  108. 

2.  Massachusetts.  —  Pub.  Stat.  (1882), 
c.  204.  g  4. 

Similar  statutes  exist  in  other  states 
as  follows: 

Alabama.— Qnm.  Code  (1886),  §  3851. 

Arizona.  —  Pen.  Code  (18S7),  §  740. 

California.  —  Pen.  Code  (1897),  §  470. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  1258. 

Delaware.  —  Rev,  Stat.  (1893),  c.  129, 

p.  949- 

Florida.  —  Rev.  Stat.  (1892),  §  2485. 

IJaAo.  —  Rcv.  Stat.  (1887),  §  7028. 

Illinois.  —  Starr  &  C.  Anno.  Slat. 
(1896).  p.  1286,  par.  223. 

Indiana.  —  Horner's  Stat.  (1896),  § 
2206. 

Iowa.  —  Code  (1897),  §  4856. 

Maine.  —  Rev.  Stat.  (1883),  c.  I2i,  §  2. 

Maryland.  —  Pub.  Gen.  Laws  (1888), 
P-  471.  §  37- 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§9215. 

Minnesota.  —  Stat.  (1894),  §  6690. 

Montana.  —  Pen.  Code  (1895).  §  840. 

Nebraska.  —  Com  p.  Stat.  (1897),  § 
6810. 


Nevada.  —  Gen.  Stat.  (1885),  §  4637. 
New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  274,  §  4. 

New  Mexico. — Comp.    Laws    (1884), 

§785. 

New  York.  —  Pen.  Code,  §  509. 
North  Carolina.  — Code  (1883),  §  1030. 
Ohio.  —  Bates'    Anno.    Stat.    (1897), 

§  7091- 

Oregon. —  Hill's  Anno.  Laws  (1892),  § 
1809. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1 141,  §  107. 

Texas.  —  Pen.  Code  (1895),  arts.  530, 
531. 

Utah.  —  Rev.  Stat.  (1898),  §  4343. 

Vermont.  —  Stat.  (1894),  §  4980. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889).  §  4454- 

Wyoming.  —  Rev.  Stat.  (1887),  |  924. 

See  also  the  following  statutes,  to 
wit: 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 

§  1596. 

AVw/wriy.— Stat.  (1894),  §  I189. 

Mississippi.  —  Anno.  Code  (1892),  § 
1098. 

Missouri.  —  Rev.  Stat.  (1889),  §  3633. 

Washington.  —  Ballinger's  Anno. 
Codes  &  Stat.  (1897).  §  7128. 

West  Virginia.  —  Code  (1891),  c.  146, 
§3. 


5  E.  of  F.  P.  — 53- 


833 


Volume  5. 


6605. 


CO  UNTERFEITING. 


6605. 


purport  and  effect  following:  {Here  insert  an  exact  copy  of  the  bill,  in 
words  and  figures'),'^  with  intent  the  said  president,  directors  and  com- 
pany of  the  said  Hampshire  County  Bank  to  injure  and  defraud, 
against  the  peace  of  said  commonwealth,  and  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided. 

Daniel  Webster,  District  Attorney 

II.  UTTERING  AND  PASSING  COUNTERFEIT  MONEY. 
1.  Coin.2 


a.  Generally. 


1.  Where  an  indictment  for  counter- 
feiting a  bank  bill  alleges  that  the  bill 
was  "  in  the  words  and  figures  follow- 
ing" or  "of  the  tenor  following,"  a 
strict  recital  is  necessary,  but  the  num- 
ber of  the  bill,  and  the  figures  on  the 
margin,  or  the  words  at  the  top,  ex- 
pressing its  amount,  are  not  parts  of  the 
Ijill  and  need  not  be  set  out.  Com.  v. 
Bailey,  i  Mass,  62;  Com.  v.  Stevens,  i 
Mass.  203. 

2.  Requisites  of  Indictment — Generally. 
— For  the  formal  parts  of  an  indictment 
in  a  particular  jurisdiction  consult  the 
title  Indictments. 

For  statutes  relating  to  the  offense  of 
uttering  counterfeit  coins  see  as  fol- 
lows: 

Alabama.  — Qr\m.  Code  (1886),  §3856. 

Arizona.  —  Pen.  Code  (1887),  §  747. 

Arkansas. — Sand.  &  H.   Dig.  (1894), 

§1591- 

California.  —  Pen.  Code  (1897),  §  477. 
Colorado.  —  Mills'  Anno.  Stat.  (1891), 

§1259- 

Connecticut.  —Gen.  Stat.  (1888),  §1578. 

Georgia.  —  3  Code  (1895),  §  235. 

Idaho.  —  Rev.  Stat.  (1887),  §  7035. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  1287,  par.  228, 

Indiana.  —  Horner's  Stat.  (1896), 
§2210. 

Iowa.  —  Code  (1897),  §  4862. 

Kansas.— Gen.  Stat.  (1889),  g  2268. 

Kentucky.  —  Stat.  (1894),  §  1181. 

Maine.  ^-  Rev.  Stat.  (1883),  c.  121,  §3. 

Massachusetts. —  Pub.  Stat.  (1882),  c. 
204,  §15. 

Minnesota.  —  Stat.  (1894'),  §6702. 

Mississippi.  —  Anno.    Code     (1892), 

Missouri.  —  Rev.  Stat.  (1889),  §  3646. 
Montana.  —  Pen.  Code  (1895),  §  847. 
Nebraska.  —  Comp.     Stat.     (1897),  § 
6815. 

Nevada.  — Gen.  Stat.  (1885),  §4638. 


Neiv  Hampshire.  —  Pub.  Stat.  (1891), 
c.  274,  §  9. 

New  fersey.  —  Gen.  Stat.  (1895),  p. 
io8r,  §  180. 

New  Alexico.  —  Comp.  Laws  {i884)» 
§795. 

New  York.  —  Pen.  Code,  §  521. 

North  Dakota,— Rqv.  Codes  (1895), 
§  7438. 

Ohio.  —  Bates'  Anno.  Stat.  (1897), 
§  7099- 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§1814. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1 140,  §  103. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
280,  §  8. 

Tennessee.  —  Code  (1896),  §6616. 

Texas.  —  Pen.  Code  (1895),  art.  561. 

Utah.  —  Rev.  Stat.  (i8g8),  §4350. 

Vermont.  —  Stat.  (1894),  §4984. 

Virginia.  —  Code  (1887),  ^  3735. 

West  Virginia.  —  Code  (1891),  c.  146, 
§3. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  4460. 

Wyoming.  —  Rev.  Stat.  (1887),  §925. 

United    States. —Rev.    Stat.     (1878), 

§5457- 

Pass  and  Utter.  —  Where  an  indict- 
ment charged  that  the  defendant  did 
"utter  and  pass"  certain  counterfeit 
coins,  and  the  words  used  in  the  stat- 
ute were  "put  off,"  it  was  held  that 
the  language  of  the  indictment  was 
substantially  the  same  as  that  of  the 
statute.  Buckley  v.  State,  2  Greene 
(Iowa)  162. 

To  Whom  Uttered.  —  The  name  of  the 
person  to  whom  counterfeit  coin  was 
passed  should  be  set  forth  with  cer- 
tainty in  the  indictment,  unless  the 
name  is  unknown,  and  if  so  that 
fact  should  be  stated.  Gabe  v.  State, 
6  Ark.  540;  Rouse  v.  State,  4  Ga. 
136;  Gentry  v.  State,  6  Ga.  503;  Buck- 


834 


Vplv^me  5. 


6605. 


CO  UNTERFEITING. 


6605. 


ley  V.  State.  2  Greene  (Iowa)  162;  U. 
S.  V.  Bejandio,  i  Woods  (U.  S.)  294. 

Description  oif  Coin  —  Generally. — The 
indictment  must  particularly  set  forth 
the  kind  of  coin  alleged  to  be  counter- 
feited, that  is  to  say,  the  denomination 
or  name,  as  dollar,  half  dollar  or  dime, 
but  the  place  of  coinage  and  date  are 
immaterial.  To  aver  counterfeit  coin 
to  be  in  the  likeness  of  silver  coin  cur- 
rent in  the  commonwealth  is  insuffi- 
cient. Com.  V.  Stearns,  10  Met.  (Mass.) 
258;  Peek  V.  State,  2  Humph.  (Tenn.) 
78.  See  also  Gabe  v.  State,  6  Ark.  540; 
Gentry  v.  State,  6  Ga.  503;  State  v.  Shoe- 
maker, 7  Mo.  177;  State  v.  Beeler,  i 
Brev.  (S.  Car.)  482;  U.  S.  v.  Bejandio, 
I  Woods  (U.  S.)  294. 

Insufficient  Description.  —  In  Com.  v. 
Fields,  5  Ky.  L.  Rep.  610,  it  was  held 
that  the  averment  "  a  counterfeit  coin 
of  the  half-dollar  denomination,  resem- 
bling the  coin  commonly  called  half 
dollar  of  the  United  Stales  of  America," 
was  not  a  sufficient  description  of  the 
coin. 

Where  an  indictment  for  passing 
counterfeit  coin  described  the  coin  as 
"a  ten  dollar  gold  coin,"  but  failed  to 
stale  what  government  issued  such 
coin,  or  by  what  authority  or  when  it 
was  issued,  it  was  held  that  there  was 
nothing  averred  by  which  the  coin 
could  be  identified  and  that  the  descrip- 
tion was  insufficient.  Waller  v.  Com., 
97  Ky.  509. 

Time  When  Cnrrent  —  Generally. — The 
time  when  the  genuine  coin  was  cur- 
rent should  be  alleged  when  required 
by  statute.  Nicholson  v.  State,  18 
Ala.  531;  Waller  v.  Com.,  97  Ky.  509. 
But  may  be  omitted  where  the  statute 
does  not  require  it.  and  if  made  may 
be  rejected  as  surplusage.  Smith  v. 
State,  8  Ohio  295. 

Sufficient  Averment.  —  An  indictment 
charging  that  the  defendant  uttered,  in 
payment,  counterfeit  coins,  "  made  and 
counterfeited  to  the  likeness  and  simili- 
tude of  the  good,  true  and  current 
money  and  silver  coin,  currently  pass- 
ing in  this  Slate,  called  '  Spanish  dol- 
lars,' "  is  good,  but  must  be  supported 
by  proof  that  such  coins  were  current. 
Fight  V.  Stale,  7  Ohio,  pi.  i.  181. 

Insufficient  Averment.  — Where  an  in- 
dictment alleged  that  the  defendant 
"had  in  his  custody  and  possession  a 
certain  piece  of  false  money  and  coin, 
forged  and  counterfeit  to  the  simili- 
tude and  likeness  of  a  certain  good  gold 
money  and  coin  current  in  said  common- 
wealth by  the  usages  thereof  as  money. 


called  a  California  Jive  dollar  ^old piece; 
and  the  aforesaid  piece  of  forged 
and  counterfeit  money  and  coin  the 
said  ^('W  did  then  and  there  utier  and 
pass  in  payment  as  true  to  one  Nancy 
IV.  Fairbanks  with  intent  her,  the  said 
Nancy  W.  Fairbanks,  to  cheat,  injure 
and  defraud;  he,  the  said  Bond,  then 
and  there  well  knowing  the  aforesaid 
piece  of  money  and  coin  to  be  false, 
forged  and  counterfeit;  against  the 
peace  of  said  commonwealth,  and  con- 
trary to  the  form  of  the  statute  in  such 
case  made  and  provided,"  the  defend- 
ant's exceptions  to  a  verdict  of  guilty 
were  sustained  on  the  ground  that  gold 
coins  not  issued  by  authority  of  con- 
gress, nor  of  any  foreign  government, 
although  in  circulation,  are  not  "  gold 
coins  current  by  law  or  usage,"  the 
uttering  of  which  is  prohibited.  Com. 
V.  Bond,  I  Gray  (Mass.)  564. 

Contradictory  Allegations.  —  An  in- 
dictment charging  that  the  defendant 
"  one  piece  of  false  and  counterfeit 
money  and  silver  coin,  made  and 
counterfeited  in  imitation  and  similitude 
of  a  piece  of  good,  legal  and  current 
moneyand  silver  coin  of  this  state, called 
a  Mexican  dollar,  of  the  value  of  one 
dollar,  at  that  lime  current  within  this 
state  by  law  and  usage,  and  in  actual 
use  and  circulation  within  this  state, 
then  and  there,  feloniously  did  offer 
and  attempt  to  pass,  utter  and  publish 
as  true,  to  one  B.  P.  Franklin,  with  in- 
tent then  and  there  him,  the  said  Frank- 
lin, to  defraud,  he,  the  said  defendant, 
at  the  lime  when  he  so  offered  and  at- 
tempted to  pass  as  true  said  false  and 
counterfeit  money  and  silver  coin, 
then  and  there  well  knowing  the 
same  to  be  false  and  counterfeit, 
against  the  form,"  etc.,  was  held  de- 
fective in  that  the  averment  that  the 
counterfeit  coin  was  a  "  piece  of  good, 
legal  and  current  money  and  silver 
coin  of  the  slate  of  Missouri "  is  con- 
tradictory and  repugnant  to  the  subse- 
quent averment  that  the  coin  is  a 
"  Mexican  dollar,  current  within  this 
state  by  law  and  usage."  State  v. 
Shoemaker,  7  Mo.  177. 

The  intent  to  defraud  should  be  alleged 
when  the  statute  requires  it.  And  in 
South  Carolina  it  has  been  held  that 
an  indictment  for  passing  counterfeit 
coin  must  charge  it  with  an  intent  to 
defraud  some  particular  person.  State 
V.  Odel,  3  Brev.  (S.  Car.)   552. 

Scienter.  —  The  indictment  should 
contain  an  averment  of  scienter.  Gabe 
V.  Slate,  6  Ark.  540;  Gentry  v.  State,  6 


835 


Volume  5. 


6605.  COUNTERFEITING.  6606. 

Form  No.  6605.' 

{Commencing  as  in  Form  No.  6591,  and  continuing  down  to  *)  know- 
ingly, unlawfully  and  feloniously  did  pass,  utter  and  publish  a  certain 
false,  forged  and  counterfeit  gold  (or  silver)  coin,  in  the  resemblance 
and  similitude  of  a  gold  (or  silver')  coin  called  an  eagle  (or  dollar), 
coined  and  stamped  at  the  mints  of  the  United  States,  with  intent  to 
defraud  one  Richard  Roe,^  he,  the  said  /ohti  Doe,  then  and  there 
well  knowing  the  said  coin  to  be  false,  forged  and  counterfeit,  against 
the  peace  {concluding  as  in  Form  No.  6591). 

Form  No.  6606. 

(Precedent  in  Gabe  v.  State,  6  Ark.  540.)' 
\ State  of  Arkansas  ^ 

against  \  Pulaski  Circuit  Conrt.^'^ 

William  Gabe,  alias  Santa  Anna.  J 

The  grand  jurors  for  the  State  oi  Arkansas,  duly  returned  [impan- 
eled, sworn  and  charged  as  such  in  the  name  and  by  the  authority 
of  the  State  of  Arkansas,  upon  their  oaths]*  present  that  William 
Gabe,  alias  Santa  Anna,  late  of  [said  county  of  Pulaski,'^  on  the  ninth 
day  of  September,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
diXvA  forty 'five,  in  the  county  oi  Pulaski  aforesaid,  one  piece  of  base 
and  adulterated^  coin,  in  imitation  of  and  resembling  a  piece  of  the 
gold  coin  which  then  and  there  was,  and  now  is,  current  by  law  in 
this  State,  called  a  gold  eagle,  and  otherwise  commonly  known  as  a  ten 
dollar  gold  piece,  feloniously  and  fraudulently  did  pass  to  one  Eli 
Clemens,^  he,  the  said  William  Gabe,  alias  Santa  Anna,  at  the  time  he 
so  passed  the  said  piece  of  base  and  adulterated  coin,  then  and  there 
well  knowing  the  same  to  be  base  and  adulterated,  false  and  counter- 
feit, contrary  to  the  form  of  the  statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  State  of  Arkansas. 

\^Daniel  Webster,  Prosecuting  Attorney.]* 

Ga.    503;   State   v.    Shoemaker,  7   Mo.  require  both  averments  to  be  made  is 

177;  Slate  V.  Beeler,  i  Brev.  (S.  Car.)  requiring  too  much  particularity.    U.S. 

482;  Peek  V.  State,  2  Humph.  (Tenn.)  v.  Bejandio,  i  Woods  (U.  S.)  294. 
78.  3.  For  the  present  statute  in  Arkan- 

1.  United  States.  —  Rev.  Stat.  (1878),  sas  see  supra,  note  2,  p.  834. 

§    5457-      See   also   supra,    note   2,  p.  4.  The  words  enclosed  by  []  will  not 

834.  be  found  in  the  reported  case,  but  have 

2.  To  Whom  Uttered  —  Intent  to  De-  been  added  to  render  the  form  com- 
frand.  —  Where  an  indictment  contained  plete. 

three  counts,  one  of  which  charged  the  5.  It  was  held  in  this  case  that  the 

defendant  with  uttering  and  passing  a  words  "base"  and   "adulterated,"  in 

counterfeit  coin  with  intent  to  defraud  common   parlance,  signified    the  same 

one  Robert  Harris,  and  the  other  two  thing,  and  that  there  is  no  repugnancy 

with  uttering,  etc.,  with  intent  to  de-  in  charging  in  the  indictment  that  the 

fraud  some   person  or   persons  to  the  defendant   passed    one    piece   of   base 

grand  jury  unknown,  it  was  held  that  "and"  adulterated  coin, 

the  averment  of  intent  to  defraud  some  6.  It  was  held  in  this  case  that  the 

person  or  persons,  which  is  required  in  allegation  that  the  coin  was  passed  to 

an  indictment  under  the  United  States  a  particular  person  is  material,  and  the 

statute,  is  a  substitute  for  an  averment  christian  name  of  such  person  must  be 

specifying  the  name  of  the  person  to  proved  as  charged, 
whom  the  coin  was  passed,  and  that  to 

836  Volume  5. 


6607.  COUNTERFEITING,  6608. 

Form  No.  6607. 

Precedent  in  McKinley  v.  State,  8  Humph.  (Tenn.)  72.)* 

The  grand  jurors  for  the  State  of  Tennessee  elected,  impaneled, 
sworn  and  charged  to  inquire  for  the  body  of  the  county  oi  Jackson, 
in  the  State  of  Tennessee,  upon  their  oath  present  that^  Eliza 
McKinley,  spinster,  on  xht  first  day  of  October,  eighteen  hundred  and 
forty-six,  with  force  and  arms  in  the  county  of  Jackson,  in  the  State 
of  Tennessee,  four  pieces  of  false,  base,  forged,  adulterated  and 
counterfeit  coin,  made  and  counterfeited  to  the  likeness  and  in 
imitation  of  the  good,  legal  and  current  silver  coin,  then  and  there 
current  in  the  State  of  Tennessee,  called  dollars,  as  and  for  such  pieces 
of  the  good,  legal  and  current  coin  of  the  State  of  Tennessee,  called 
dollars,  then  and  there  deceitfully  and  fraudulently  did  utter,  tender 
and  pass  to  one  William  Goodall.  She,  the  said  Eliza  McKinley,  at 
the  time  she  so  uttered,  tendered  and  passed  the  said  four  pieces  of 
base,  false,  adulterated  and  counterfeit  coin,  well  knowing  the  same 
to  be  false,  base,  adulterated  and  counterfeit,  against  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  State. 

[  West  H.  Humphreys,  Attorney  General,  j^ 

b.  Foreign  Coin. 

Form  No.  6608. 

(Precedent  in  Gentry  v.  State,  6  Ga.  504.)* 

Georgia,  Cass  County: 
The  Grand  Jurors  [chosen,  selected  and  sworn  for  the  county  of 

1.  See  also  the  second  count  in  Peek  base  and  adulterated,  and  counterfeit, 

V.  State,  2  Humph.  (Tenn.)   79,  which  against  the  form  of  the  statute  in  such 

was  held  sufficient  and  was  as  follows:  case  made  and  provided,  and  against 

"And    the    grand  jurors   aforesaid,  the  peace  and  dignity  of  the  state." 

upon  their  oaths  aforesaid,  do  further  See  also  list  of  statutes  supra,  note 

present  that  the  aforesaidyaw^j  Peek,  2,  p.  834. 

yeoman,   afterwards,  to  wit,   on  the  ist  2.  Thp  words  and  figures  enclosed  by 

day  of  February,  iSjS,  with  force  and  [  ]    will   not  be  found  in  the  reported 

arms,  in   the  county  of  Overton,  in  the  case,  but  have  been  added  to  render  the 

state  of  Tennessee,  fifty  pieces  of  false,  form  complete. 

fraudulent,  counterfeit,  base  and  adul-  3.  This  indictment,  though  sufficient 

terated  coin  to  the  likeness  and  simili-  in  form,   was  held  insufficient  for  the 

tude   of   the   good,    legal  and    current  reason  that  the  word  "that"  was  in- 

money  and  silver  co\n,  current  in  the  serted  after  the  word  "  present"  by  way 

state  of  Tennessee,  called  dollars,  as  and  of  amendment,  and  the  record  failed  to 

for  pieces  of  such  good  legal  and  cur-  disclose  that  the  amendment  was  made 

rent  money  and  silver  coin,  called  dol-  by  the  grand  jury. 

lars,    then   and    there    did    deceitfully  4.  This  form  was  drawn  under  a  stat- 

utter,   tender  and  pass  to  one  Edward  ute  identical  with  that  now  in  force,  to 

N.    Culloin;  he,    the   said  James  Peek,  wit,  3  Ga.  Code  (1895),  §235.     See  also 

yeoman,  at  the  time  he  so  uttered,  ten-  list  of  statutes  cited   supra,  note  2,  p. 

dered  and  passed  the  said  fifty  pieces  834. 

of  false,  fraudulent,  base  and  counter-  Precedent. —  In  Kirk  v.  Com.,  9  Leigh 

feit  money  and  coin,  well  knowing  the  (Va.)  627,   the   indictment,   which   was 

same  to   be   false,   fraudulent,   forged,  sufficient,  charged  the  offense   as    fol- 

887  Volume  5. 


6609. 


CO  UNTERFEITING. 


6609. 


Cass,  to  wit  (jiaming  f/iem)],^  in  the  name  and  behalf  of  the  citizens 
of  Georgia,  charge  and  accuse  yokn  Gefitry  with  the  offense  of  fraudu- 
lently and  falsely  tendering  in  payment  a  base  coin,  knowing  the 
same  to  be  base ;  for  that  the  said  John  Gentry,  on  the  12th  Febru- 
ary, 1S45,  in  the  county  aforesaid,  did  tender  to  one  Arthur  Haire, 
one  piece  of  base  coin,  made  and  counterfeited  to  the  likeness  and 
similitude  of  good  legal  and  current  silver  coin,  called  a  Spanish 
dollar,  knowing  the  same  to  be  base,  contrary  to  the  laws  of  said 
state,  the  good  order,  peace  and  dignity  thereof;  and  the  Jurors 
aforesaid,  in  the  name  and  behalf  of  the  citizens  of  Georgia,  farther 
charge  the  said  John  Gentry  with  having  committed  the  offense  of 
falsely  and  fraudulently  uttering  a  counterfeit  and  forged  coin, 
knowing  the  same  to  be  counterfeit  and  forged;  for  that  the  said 
John  Gentry,  on  the  12th  day  of  February,  184S,  in  the  county  and 
state  aforesaid,  one  piece  of  base  and  counterfeit  money,  made  and 
counterfeited  to  the  likeness  and  similitude  of  legal  and  current  silver 
coin  called  a  dollar,"^  did  falsely  and  fraudulently  utter  and  tender ^ 
the  said  counterfeit  dollar,  knowing  the  same  to  be  counterfeit,  con- 
trary to  the  laws  of  said  state,  the  good  order,  peace  and  dignity 
thereof. 

[Superior  Court.  )  J.  Milner,  Solicitor  General. 

February  T&cm^  A.  d.  iS^P.  )  Arthur  Haire,  Prosecutor.]^ 

c.  Gilded  Coin. 

Form  No.  6609.* 

(^Commencing  as  in  Form  No.  6601,  and  continuing  down  to  *)  pass  to 
one  Richard  Roe,  two  silver  coins,  currently  passing  in  this    state, 


lows,  to  wit:  "  That  James  Kirk,  on 
the  loth  of  March,  i8jS,  at  the  county 
of  Cabell,  feloniously  did  pass  to  one 
Aly  Williams  a  certain  counterfeit, 
forged  and  base  coin,  of  the  likeness 
and  similitude  of  the  Mexican  coin  and 
money  called  a  dollar,  current  within 
the  commonwealth  of  Virginia  as  and  for 
a  dollar,  with  intention  to  injure  and 
defraud  the  said  Aly  Williams,  he  the 
S2\^  James  Kirk,  at  the  time  he  so  afore- 
said passed  the  said  base  coin,  well 
knowing  the  same  to  be  false,  forged 
and  counterfeit,  contrary  to  the  form 
of  the  statute." 

1.  The  words  and  figures  enclosed  by 
[  ]  will  not  be  found  in  the  reported 
case,  but  have  been  added  to  render 
the  form  complete. 

2.  Current  Coin.  —  It  was  held  that  it 
was  sufficiently  stated  that  the  coin  was 
passing  or  in  circulation  in  the  state 
without  stating  whether  the  coin  was 
foreign  or  domestic. 

3.  To  Whom  Uttered.  — It  was  held 
that,  as  the  second  count  charged  the 
offense  of  uttering  and  not  that  of  ten- 


dering in  payment,  it  was  not  neces- 
sary to  state  the  person  to  whom  the 
counterfeit  money  was  uttered. 

4.  Nebraska. — Comp.  Stat.  (1897),  § 
6816. 

See  also  supra,  note  2,  p.  834. 

Precedent.  —  In  Wilson  v.  State,  i 
Wis.  184,  the  second  count  of  the  in- 
dictment which  was  drawn  under  a 
statute  prohibiting  the  passing  and 
uttering  of  counterfeit  money,  charged 
the  passing  and  uttering  of  gilded 
coins  as  follows: 

"That  the  said  David  Wilson,  on  the 
i^th  day  of  September,  x%^2,  at  the 
county  of  Grant  aforesaid,  one  certain 
piece  of  false  and  counterfeit  money, 
made  of  base  metal  and  colored  with  a 
certain  wash,  producing  the  color  of 
gold,  to  the  likeness  and  similitude  of 
a  piece  of  good,  lawful  and  current 
gold  money  and  coin  of  the  United 
States,  called  a  quarter-eagle,  as  and 
for  a  piece  of  good,  lawful  and  current 
gold  money  and  coin  of  the  United 
States,  called  a  quarter-eagle,  unlaw- 
fully, unjustly  and  deceitfully  did  ut- 


838 


Volume  5. 


6610.  CO  UNTERFEITING.  6611. 

called  quarter  dollars,  which  said  silver  coins  were  then  and  there 
gilded  and  had  the  appearance  of  gold  coins  of  the  United  States, 
currently  passing  in  this  state,  to  wit,  quarter  eagles,  with  intent  to 
injure  and  defraud  the  said  Richard  Roe,  he  the  said  John  Doe  then 
and  there  knowing  the  said  coins  to  be  gilded  as  aforjesaid  and  not 
genuine  gold  coins,  contrary  to  the  form  of  the  statute  {concluding  as 
in  Form  No.  6601). 

d.  Bringing  Coin  into  the  United  States  with  Intent  to  Defraud. 

Form  No.  66  i  o  .' 

{Commeming  as  in  Form  No.  6591,  and  continuing  down  to  *)  know- 
ingly, unlawfully  and  feloniously  did  bring  into  the  United  States 
from  Toronto,  in  the  province  of  Ontario,  a  large  number,  to  wit, 
one  hundred  false,  forged  and  counterfeit  coins,  each  in  the  resem- 
blance and  similitude  of  a  silver  (or  gold)  coin,  coined  and  stamped 
at  the  mints  of  the  United  States,  called  a  dollar,  with  intent  to 
defraud  some  person  or  persons  to  the  grand  jury  unknown,  he  the 
said  John  Doe  then  and  there  well  knowing  the  said  coins  to  be  false, 
forged  and  counterfeit,  against  the  peace  (concluding  as  in  Form  No. 
6591). 

2.  Paper  Money.^ 
a.  Generally. 

ter  and  pay  to  one  Amos  Chase,  he,  the  Iowa.  — Code  (1897),  §  4858. 

said  Wilson,  well  knowing,"  etc.     This  Kansas.  —  Gen.   Stat.   (1889),  §  2268. 

indictment  was  sufficient.     For  the  pre-  Kentucky.  —  Stat.  (1894),  §  1189. 

■ent  Wisconsin  statute,  see  supra,  note  Mains.  —  Rev.  Stat.  (1883),  c.  121,  §  3. 

2,  p.  834.  Massachusetts.  —  Pub.  Stat.  (1882),  c. 

1.  United  States.  —  Rev.  Stat.  (1878),  §  204,  ^  6. 

5457.  Michigan.  —  How.  Anno.  Stat.  (1882), 

2.  Requisites    of    Indictment  —  Oener-     §  9218. 

ally. — For    the  formal  parts  of  an  in-  Minnesota. — Stat.  (1894),  §  6702. 

dictment   in   a   particular    jurisdiction  Mississippi.  —  Anno.     Code     (1892), 

consult  the  title  Indictments.  §  loii. 

For  statutes  relating  to  the  offense  of  Missouri.  —  Rev.  Stat.  (1889),  §  3646. 

uttering  counterteit  paper  money   see  Montana. — Pen.  Code  (1S95),  §840. 

as  follows:  Nebraska. — Comp.  Stat.  (1897),  §  63x2. 

Alabama.  —  Crim.  Code  (1886),  §  3851.  Nevada.  —  Gen.  Stat.  (1885),  j5  4637. 

Arizona.  —  Pen.  Code  (1887),  §  740.  New  Hampshire.  —  Pub.  Stat.  (1891), 

Arkansas. — Sand.  &  H.  Dig.  (1894),  c.  274,  §  5. 

§1596.  New  Jersey.  —  Gen.    Stat.    (1895),    p. 

California.  —  Pen.  Code  (1897),  §  470.  1082,  §  184. 

Colorado.  —  Mills' Anno.   Stat.  (1891),  New  Mexico.  —  Comp.    Laws   (1S84), 

§1253-  §787- 

Connecticut.— Gen.  Stat.  (1888),  g  1578.  New  York.  —  Pen.  Code,  §  521 . 

Delaware.  —  Rev.  Stat.  (1893),  c.  129,  North  Carolina.  — Code  (1883),  8  1031. 

p.  949.  North  Dakota.  —  Rev.   Codes   (1S95), 

Florida.  —  Rev.  Stat.  (1892),  §  2487.  §  7438. 

Georgia.  —  3  Code  (1895),  §  239.  Ohio.  —  Bates'    Anno.    Stat.    (1S97), 

Idaho.  —  Rev.  Stat.  (1887),  §  7028.  §  7091. 

Illinois.  —  Starr    &   C.    Anno.    Stat.  Oregon.  —  Hill's  Anno.    Laws  (1892), 

(1896),  p.  1286,  par.  223.  §  iSio. 

Indiana.  —  Horner's     Stat.      (1S96),  Pennsylvania. — Pepp.  &  L.  Dig.(i894), 

§  2208.  p.  1 141,  §  107. 

839  Volume  5. 


6611. 


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6611. 


Rhode  Island, — Gen.  Laws  (1896),  c. 
280,  §  3. 

Tennessee.  — Code  (1896),  §  6601, 
Texas. —  Pen.  Code  (iS95),'art.  542. 
Utah.—R&v.  Stat.  (1898),  §  4348. 
Vermont.  —  Stat.  (1894),  §4978. 
Virginia.  — Code  (1887),  S  3735- 
West  Virginia. — Code  (1891),  c.  146, 

§3. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  4455. 

Wyoming.  —  Rev.  Stat.  (1887),  §  924. 

For  other  forms  of  indictments  for 
passing  counterfeit  notes  see  the  fol- 
lowing cases,  to  wit: 

Arkansas. — Mathcna  v.  State,  20 
Ark.  70. 

Illinois. — Swain  v.  People,  5  111.  178. 

Indiana.  —  McGregor  v.  State,  16 
Ind.  9. 

Iowa.  —  State  v.  Newland,  7  Iowa 
242;  State  V.  Barrett,  8  Iowa  537;  Buck- 
ley V.  State,  2  Greene  (Iowa)  162. 

Kentucky.  —  Mount  v.  Com.,  i  Duv. 
(Ky.)  90. 

Massachusetts.  —  Com.  v.  Boynton,  2 
Mass.  77;  Com.  v.  Taylor,  5  Cush. 
(Mass.)  605;  Com.  v.  Thomas,  10  Gray 
(Mass.)  483;  Com.  v.  Carey,  2  Pick. 
(Mass.)  47. 

Missouri.  —  Hobbs  v.  State,  9  Mo. 
856. 

New  Hampshire.  —  State  v.  Carr,  5 
N.  H.  367. 

Aew  York.  —  People  v.  Lewis,  I 
Wheel.  Cr.  Cas.  (N.  Y.)  181. 

North  Carolina. — State  v.  Dourden, 
2  Dev.  L.  (13  N.  Car.)  443. 

Pennsylvania.  —  Com.  v.  Smith,  6 
S.  &  R.  (Pa.)  568. 

Tennessee.  —  Peek  v.  State,  2  Humph. 
(Tenn.)  84;  States.  Shelton,  7  Humph. 
(Tenn.)  31;  Williams  v.  State,  g 
Humph.  (Tenn.)  80. 

Vermont.  —  State  v.  Wilkins,  17  Vt. 
151. 

Virginia. — Com.  v.  Hensley,  2  Va. 
Cas.  149;  Buckland  v.  Com.,  8  Leigh 
(Va.)  732;  Murryz/.  Com.,  5  Leigh  (Va.) 
720;  Martin  v.  Com.,  2  Leigh  (Va.)745; 
Brown  v.  Com.,  2  Leigh  (Va.)  769. 

Use  of  Certain  Wor^ — "■Did."  — 
Where  an  indictment  charged  that  the 
defendant  "'feloniously  utter  and  pub- 
lish," etc.,  omitting  the  word  "  did,"  it 
was  held  insufficient,  being  too  vague 
and  uncertain.  State  v.  Haider,  2 
McCord  L.  (S.  Car.)  377. 

^'^ Dispose  and  Put  Away'' — Where 
an  indictment  charged  that  the  defend- 
ant "did  dispose  of  and  put  away," 
and  the  words  of  the  act  were  "  utter 
and  publish,"  it  was  held  insufficient. 


in  that  the  allegation  of  the  indictment 
was  more  general  than  the  words  of 
the  act,  and  that  the  words  of  the  stat- 
ute should  have  been  followed.  State 
V.  Petty,  Harp.  L.  (S.  Car.)  59. 

'^'^ Altered  and  Counterfeited."  — Under 
the  Ohio  act  of  1835  an  indictment  for 
uttering  a  bank  bill  which  charges  the 
bill  to  have  been  "  false,  forged,  altered 
and  counterfeited,"  is  repugnant.  Kir- 
by  V.  State,  i  Ohio  St.  185. 

Copy  of  Bank  Note  —  Generally.  —  An 
indictment  for  passing  counterfeit  bank 
notes  must  set  forth  the  forged  instru- 
ment in  words  and  figures,  if  in  ex- 
istence and  within  the  control  of  the 
prosecutor,  and  in  excepted  cases  the 
facts  upon  which  the  exception  rests 
must  be  stated.  Hooper  v.  State,  8 
Humph.  (Tenn.)  93;  State  v.  Wheeler, 
35  Vt.  261.  See  also  Hampton  v.  State, 
8  Ind.  336;  Wilkinson  v.  State,  10  Ind. 
372;  Com.  V.  Wilson,  2  Gray  (Mass.) 
70;  Com.  V.  Clancy,  7  Allen  (Mass.) 
537;  Com.  V.  Taylor,  5  Cush.  (Mass,)6o5; 
State  V.  Carr,  5  N.  H.  367;  State  v. 
Harris,  5  Ired.  L.  (27  N.  Car.)  287; 
Thompson  v.  State,  9  Ohio  St.  354; 
Com.  V.  Searle,  2  Binn.  (Pa.)  332;  State 
V.  Wilkins,  17  Vt.  151;  Brown  v.  Com., 
2  Leigh  (Va.)  769;  Murry  v.  Com  ,  5 
Leigh  (Va.)  720.  But  it  is  only  neces- 
sary to  set  out  the  material  parts  of  the 
note.     State  v.  Carr,  5  N.  H.  367. 

Marginal  Numbers.  —  The  marginal 
numbers  and  figures  are  not  essential 
parts  of  the  notes,  and  hence  need  not 
be  set  forth.  Com.  v.  Taylor,  5  Cush. 
(Mass.)  605;  Com.  v.  Bailey,  i  Mass. 
62;  Com.  V.  Stevens,  i  Mass.  203;  State 
V.  Carr,  5  N.  'H.  367;  People  v.  Frank- 
lin, 3  Johns.  Cas.  (N.  Y.)  299;  State  v. 
Wheeler,  35  Vt.  261. 

Ornamental  Devices.  —  It  is  not  neces- 
sary to  set  forth  the  ornamental  parts 
of  the  note,  such  as  devices,  mottoes, 
etc.  Hampton  v.  State,  8  Ind.  336; 
Com.  V.  Searle,  2  Binn  (Pa.)  332. 

Name  of  Engraver.  —  In  setting  forth 
the  copy  of  a  bank  note  it  is  not  im- 
proper to  set  out  the  names  and  resi- 
dences of  the  engravers  as  the  same 
appear  upon  the  margin  of  the  note. 
Thompson  v.  State,  9  Ohio  St.  354. 

Indorsement.  —  In  setting  out  a  coun- 
terfeit bank  note  in  hac  verba,  in  an 
indictment  for  passing  the  same,  an  in- 
dorsement appearing  to  have  been  made 
on  the  note  after  it  was  passed  is  prop- 
erly omitted.  Buckland  v.  Com.,  8 
Leigh  (Va.)  732. 

Names  of  Cashier  and  President.  — 
Where  a  person  was  charged  with  ut- 


840 


Volume  5. 


6611. 


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6611. 


tering  and  passing  as  true  an  uncur- 
rent  and  worthless  bank  bill-  of  the 
tenor  following: 

'*  State  of  Rhode  Island. 

The  Tiverton  Bank  will  pay  to  bearer 
two  dollars  on  demand.  Tiverton, 
Aug.  I,  1857. 

Cash'r.  Pres't. 

A  more  particular  description  of  said 
bank  bill  the  said  jurors  have  not,  and 
cannot  give,"  the  indictment  was  held 
defective  and  insufficient  in  that  it  did 
not  contain  the  names  of  the  cashier 
and  president  in  setting  forth  the  tenor 
of  the  bill.  The  averment  that  jurors 
could  not  give  a  more  particular  de- 
scription did  not  relieve  it  from  the 
defect,  it  not  appearing  that  the  bill 
was  ever  signed.  Com.  v.  Clancy,  7 
Allen  (Mass.)  537.  But  where  an  in- 
dictment for  passing  a  counterfeit 
bank  bill,  in  setting  out  the  tenor  of  the 
bill,  described  it  as  signed  by  J.  M. 
Thonpson  and  bill  offered  in  evidence 
was  signed  by  J.  M.  Thompson,  it  was 
held  that  the  two  names  were  idem 
sonans,  and  that  there  was  no  fatal  vari- 
ance.    State  V,  Wheeler  35  Vt.  261. 

Name 0/ State. —  It  is  a  fatal  variance, 
in  an  indictment  for  uttering  a  counter- 
feit bill,  to  omit  the  name  of  the  state  in 
the  upper  margin  thereof  where  the 
name  is  not  repeated  in  the  body  of  the 
bill,  the  name  of  the  state  being  a  part 
of  the  contract.  Com.  v.  Wilson,  2 
Gray  (Mass.)  70. 

Describing  Bill  as  Promissory  Note. — 
An  indictment  for  uttering  a  counterfeit 
bank  bill  may  describe  it  as  a  promis- 
sory note.  Com.  v.  Carey,  2  Pick. 
(Mass.)  47;  Com.  v.  Thomas,  10  Gray 
(Mass.)  483;  Com.  v.  Paulus,  11 
Gray  (Mass.)  305;  Hobbs  v.  State,  9 
Mo.  855;  Com.  V.  Hensley,  2  Va.  Cas. 
149.  Except  where  the  statutes  impose 
different  penalties  for  passing  counter- 
feit promissory  notes  and  counterfeit 
bank  notes,  in  which  case  an  indict- 
ment alleging  the  passing  of  a  counter- 
feit promissory  note  and  describing  a 
.counterfeit  bank  note  is  bad.  State  v. 
Hayden,  15  N.  H.  355;  State  --.  Ward, 
6  N.  H.  529. 

Averment  of  Existence  and  Incorpora- 
tion of  Bank — Generally. — The  neces- 
sity for  and  manner  of  alleging  the 
existence  and  incorporation  of  the  bank, 
counterfeit  notes  of  which  are  alleged 
to  have  been  uttered,  will  depend 
largely  upon  the  language  of  the  stat- 
ute under  which  the  indictment  is 
drawn.  Thus  where  the  statute  makes 
it  an  offense  to  utter  counterfeit  bank 


notes  of  any  bank  incorporated  by  the 
laws  of  the  state,  an  indictment  for 
uttering  a  counterfeit  bank  note  which 
fails  to  allege  that  the  bank  was  incor- 
porated by  the  laws  of  the  state  is  in- 
sufficient, and  the  averment  is  not 
supplied  by  an  allegation  that  the  bank 
was  a  "  banking  company  established 
in  said  commonwealth."  Com.  v.  Si- 
monds,  11  Gray  (Mass.)  306.  See  also 
Kennedy  v.  Com.,  2  Mete.  (Ky.)  36; 
Jennings  v.  People,  8  Mich.  81;  Jones 
V.  State,  5  Sneed  (Tenn.)  346.  But  it 
has  been  held  unnecessary  to  allege  the 
existence  of  the  bank  where  the  indict- 
ment charges  a  design  to  defraud  an 
individual.  Com.  v.  Carey,  2  Pick. 
(Mass.)  47. 

Under  other  statutes,  however,  it  has 
been  held  unnecessary  to  aver  that  the 
bank  had  any  legal  existence.  Hobbs 
V.  State,  9  Mo.  855;  State  v.  Van  Hart, 
17  N.  J.  L.  327;  Murry  v.  Com.,  5  Leigh 
(Va.)  720. 

Suffi-cient  Averments.  —  Where  an  in- 
dictment charged  that  the  defendant, 
"designing  and  intending  to  injure 
and  defraud  one  Millington  Patillo, 
with  force  and  arms,  in  the  county 
aforesaid,  did  pass  as  good  and  genuine, 
to  the  said  Millington  Patillo,  a  false, 
forged  and  counterfeited  promissory 
note,  commonly  called  a  bank  note,  pur- 
porting to  be  a  good  and  genuine  note 
of  one  hundred  dollars  on  the  bank  of 
the  State  of  South  Carolina,  which  said 
false,  forged  and  counterfeited  bank 
note  is  as  follows,  that  is  to  say  {set- 
ting forth  a  cop)'),  with  intent  then  and 
there  to  defraud  the  said  Millington 
Patillo,  he,  the  ssXA  James  Ward,  at  the 
time  he  so  passed  the  said  counterfeited 
bank  note,  well  knowing,"  etc.,  it  was 
held  that  the  averment  of  the  existence 
of  the  bank  was  sufficient,  and  con- 
viction was  sustained.  State  v.  Ward,  2 
Hawks  (9  N.  Car.)  443.  Under  a  statute 
prohibiting  the  counterfeiting  of  bank 
bills  "  issued  by  any  banking  company 
incorporated  by  the  congress  of  the 
United  States,  or  by  the  legislature  of 
any  state  or  territory  of  the  United 
States,"  an  indictment  which  alleged 
a  counterfeit  bank  bill  to  be  in  imitation 
of  a  bank  bill  "  issued  by  the  President, 
Directors  and  Company  of  the  Bank  of 
Cumberland,  by  and  under  the  au- 
thority of  the  legislature  of  the  state  of 
Maine,  one  of  the  United  States  of 
America,"  sufficiently  averred  the  ex- 
istence of  the  bank  and  that  it  was  an 
incorporated  institution.  State  v.  Wil- 
kins,   17  Vt.    151.     And  where   an   in- 


841 


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6611. 


CO  UNTERFEITING. 


6611. 


dictment  charged  that  the  defendant 
passed  a  counterfeit  bank  bill  of  the 
denomination  of  three  dollars,  purport- 
ing "to  have  been  issued  by  the 
Andover  Bank,  a  banking  company  in- 
corporated by  the  legislature  of  the  com- 
monwealth of  Massachusetts,  made  pay- 
able to  E.  F.  or  bearer  on  demand,"  it 
was  held  that  the  portion  in  italics  was 
not  an  allegation  of  the  purport  of  the 
bill,  but  of  the  due  incorporation  of  the 
banking  company,  by  whom  the  bill 
purported  to  have  been  issued.  State 
V.  Wheeler,  35  Vt.  261. 

Unneoessary  Particularity  in  Describing 
Bank.  —  In  an  indictment  where  it  was 
alleged  that  the  defendant  "  did  utter 
and  pass,  and  tender  in  payment  as 
true,  to  one  Peter  Kesler,  two  false, 
forged  and  counterfeit  bank  bills,  of 
the  denomination  of  t-a<o  dollars,  pur- 
ported to  be  issued  by  the  President, 
Directors  &  Co.  of  the  Massachusetts 
Bank,  payable  toy.  E.  Haydcn;  a  cor- 
poration duly  organized  for  that  pur- 
pose, by  the  state  of  Massachusetts,  with 
intent  to  defraud,  he,  the  said  jVe'u- 
land,  well  knowing,"  etc.,  it  was  held 
that,  although  the  bank  had  been  de- 
scribed with  unnecessary  particularity, 
it  was  incumbent  on  the  state  to  prove 
the  fact  alleged.  Upon  this  point  the 
judgment  against  the  defendant  was 
reversed.  State  v.  Newland,  7  Iowa 
242.  See  also  Com.  v.  Smith,  6  S.  & 
R.  (Pa.)  568;  Peoples.  Davis, 21  Wend. 
(N.  Y.)  309. 

Authority  of  Bank  to  Issue  Notes.  — 
Under  the  Minnesota  statute  an  indict- 
ment for  uttering  counterfeit  bank  bills 
must  allege  that  the  bills  purported  to 
have  been  issued  by  a  bank  authorized 
by  law  to  issue  such  bills,  and  an  in- 
dictment charging  that  the  defendant 
did  "  utter  and  pass  to  and  upon  one 
Peter  Morrison,  in  payment  of  an  in- 
debtedness, two  several  counterfeit 
bank  notes  or  bills  of  the  denomination 
of  three  dollars  each,  purporting  to 
be  issued  by  the  Ne7v  Haven  County 
Bank,  of  the  state  of  Connecticut,  know- 
ing them  to  be  false  and  counterfeit, 
and  with  intent  to  injure  and  defraud 
the  said  Morrison,"  Aocs  not  state  facts 
sufficient  to  constitute  an  ofifense  in  that 
it  failed  to  allege  that  the  bank  was 
authorized  by  law  to  issue  bank  bills 
and  that  defendant  uttered  and  passed 
the  notes  as  true  and  genuine.  Ben- 
son r'.  State,  5  Minn.  19. 

Intent  to  Defend  —  Generally.  — 
The  indictment  must  charge  that  the 
counterfeit  bill  was  passed  with  intent 


to  defraud.  State  v.  Nicholson,  14  La. 
Ann.  798;  State  v.  Seran,  2S  N.  J.  L. 
519;  Hooper  v.  State,  8  Humph.  (Tenn.) 
93.  See  also  Wilkinson  v.  State,  10 
Ind.  "372;  State  v.  Barrett,  8  Iowa  537; 
Hobbs  V.  State,  9  Mo.  855;  State  v. 
Dourden,  2  Dev.  L.  (13  N.  Car.)  443; 
State  V.  Ward,  6  N.  H.  529;  People 
V.  Wilson,  6  Johns.  (N.  Y.)  320;  Stough- 
ton  V.  State,  2  Ohio  St.  563;  Butler  v. 
Com.,  12  S.  &  R.(Pa.)  237;  Williams  v. 
State,  9  Humph.  (Tenn.)  80;  Fergus 
V.  State,  6  Yerg.  (Tenn.)  345;  Brown  v. 
Com.,  2  Leigh  (Va.)  769;  Martin  v. 
Com.,  2  Leigh  (Va.)  745;  Hendrick 
V.  Com.,  5  Leigh  (Va.)  707;  Buckland 
V.  Com.,  8  Leigh  (Va.)  732;  Jett  v. 
Com.,  18  Gratt.  ^a.)  933. 

Person  to  be  Defrauded.  —  The  name 
of  the  person  to  whom  counterfeit 
money  was  passed  should  be  set  forth 
with  certainty  in  the  indictment,  unless 
the  name  is  unknown,  and  if  so  that 
fact  should  be  stated.  Buckley  v. 
State,  2  Greene  (Iowa)  162.  See  also 
Williams  v.  State,  9  Humph.  (Tenn.) 
80.  An  intent  to  defraud  a  firm  in- 
cludes an  intent  to  defraud  each  mem- 
ber thereof,  and  an  indictment  for 
uttering  a  forged  bank  bill  with  intent 
to  defraud  one  member  thereof  is  suffi- 
cient without  setting  forth  the  names 
of  all  the  persons  meant  to  be  injured. 
Stoughton  V.  State,  2  Ohio  St.  563. 

Where  an  indictment  alleged  an  in- 
tent to  defraud  a  bank,  it  was  held 
sufficient.  Brown  v.  Com.,  2  Leigh 
(Va.)  769. 

And  a  general  allegation  of  intent  is 
sufficient  without  naming  the  person 
to  be  defrauded.  State  v.  Nicholson, 
14  La.  Ann.  798.  See  also  Wilkinson 
V.  State,  10  Ind.  372;  State  v.  Barrett,  8 
Iowa  53S;  Hooper  v.  State,  8  Humph. 
(Tenn.)  93;  Fergus  v.  State,  6  Yerg. 
(Tenn.)  345. 

Scienter.  —  Guilty  knowledge  should 
be  distinctly  averred  in  the  indictment. 
State  V.  Seran.  28  N.  J.  L.  519;  Hooper 
V.  State,  8  Humph.  (Tenn.)  93;  State  v. 
Morton,  8  Wis.  352;  U.  S.  v.  Rouden- 
bush,  I  Baldw.  (^U.  S.)  514;  U.  S.  v. 
Carll,  105  U.  S.  611.  See  also  Wilkin- 
son V.  State,  ID  Ind.  372;  Hobbs  v. 
State,  9  Mo.  855;  State  v.  Ward,  6  N. 
H.  529;  State  V.  Ward,  2  Hawks  (9  N. 
Car.)  443;  State  f.  Dourden,  2  Dev.  L. 
(13  N.  Car.)  443;  Butler  v.  Com.,  62  S. 
&  R.  (Pa.)  237;  State  v.  Wilkins,  17  Vt. 
151;  Buckland  v.  Com.,  8  Leigh  (Va.) 
735;  Brown  v.  Com.,  2  Leigh  (Va.)  769; 
Martin  v.  Com.,  2  Leigh  (Va.)  745; 
Murry  v.  Com.,  5  Leigh  (Va.)  720;  Jett 


842 


Volume  5. 


6611. 


CO  UNTERFEITING. 


6612. 


Form  No.  66i  i.> 

{Commencing  as  in  Forbt  No.  6591,  and  continuing  down  to  *)  un- 
lawfully and  feloniously  did  utter,  publish  and  pass  to  one  Richard 
Roe^  a  certain  false,  forged  and  counterfeited  obligation  of  the 
United  States,  to  wit,  a  certain  false,  forged  and  counterfeited  United 
States  treasury  note^  of  the  denomination  of  yJ/Zy  dollars,  which  said 
false,  forged  and  counterfeited  treasury  note  is  as  follows,  that  is  to 
say  {Here  set  out  a  verbatim  copy  of  the  note),  with  intent  to  defraud  the 
said  Richard  Roe,  he,  the  said  John  Doe,  then  and  there  well  knowing* 
the  said  false,  forged  and  counterfeited  treasury  note  to  be  false, 
forged  and  counterfeited,  against  the  peace  {concluding  as  in  Form 
No.  6591). 

Form  No.  6612. 

(Precedent  in  Wilkinson  v.  State,  10  Ind.  372.)* 


V.  Com..  18  Gratt.  (Va.)  933;  U.  S.  v. 
Howell,  II  Wall.  (U.  S.)  432. 

And  in  an  indictment  omitting  the 
words  "  knowing  the  same  to  be  forged 
and  counterfeited,"  the  allegation  that 
the  counterfeit  bill  was  uttered  with 
intent  to  defraud  does  not  cure  the  de- 
fect and  the  indictment  is  insufficient. 
State  V.  Nicholson,  14  La.  Ann.  798. 

1.  The  charging  part  of  this  form, 
which  is  based  on  U.  S.  Rev.  Stat. 
(1878),  §^  5431,  5413,  is  subsantially  the 
charging  part  of  the  indictment  in  U.  S. 
V.  Owens,  37  Fed.  Rep.  112.  See  also 
U.  S.  V.  Carll,  105  U.  S.  612;  U.  S.  v. 
Howell,  II  Wall.  (U.  S.)  432. 

Precadent.  —  Where  an  indictment 
charged  that  the  defendant  "  feloni- 
ously did  attempt  to  pass  to  oneE.  S. 
as  and  for  a  true  and  good  bill  or  note, 
a  certain  false,  forged  and  counterfeit 
paper  writing,  the  tenor  of  which,"  etc., 
"  is  as  follows:  '  the  president,  directors 
and  company  of  the  Bank  of  the  United 
States  promise  to  pay  twenty  dollars  on 
demand,  at  their  office  of  discount  and 
deposit  at  Fayetteville,  to  the  order  of 
D.  Anderson,  cashier  thereof,  Phila- 
delphia, the  4th  of  July,  1827,  John  W. 
Sandford,  cashier,  John  Huske,  presi- 
dent,' with  intent  to  defraud  the 
president,  directors  and  company  of  the 
Bank  of  the  United  States,"  it  was  held 
that  an  offense  was  stated  under  the  act 
of  1S16,  3  U.  S.  Stat,  at  Large  275,  al- 
though the  persons  whose  signatures 
were  forged  were  not  cashier  and  presi- 
dent of  that  bank,  that  it  was  im- 
material whether  the  bill  be  signed  in 
the  name  of  real  or  fictitious  persons, 
or  whether  it  would  if  genuine  be  bind- 
ing on  the  bank  or  not.  U.  S.  v. 
Turner,  7  Pet.  (U.  S.)  132. 


2.  To  Whom  Passed.  —  The  indictments 
in  U.  S.  V.  Owens,  37  Fed.  Rep.  112, 
and  U.  S.  v.  Howell,  11  Wall.  U.  S.  433, 
do  not  state  the  name  of  the  person  to 
whom  the  note  was  passed,  but  such  an 
averment  is  made  in  the  indictment  in 
U.  S.  V.  Carll,  105  U.  S.  612. 

3.  Misdescription  of  Note.  —  Where  the 
note  is  set  forth  by  its  tenor,  a  mis^ 
description  of  it  as  a  treasury  note, 
when  in  fact  it  is  a  United  States  note, 
is  immaterial.  U.  S.  v.  Marcus,  53 
Fed.  Rep.  784.  But  a  mistake  in  the 
bill  number  or  in  the  denomination  of 
the  bill  is  a  fatal  variance.  U.  S.  v. 
Mason,  12  Blatchf.  (U.  S.)  497. 

Likeness  and  Sinulitade.  —  It  is  not 
necessary  to  allege  that  the  notes  were 
in  the  likeness  and  similitude  of  genuine 
notes.  Nor  need  the  indictment  aver 
that  any  genuine  note  of  the  United 
States  has  been  authorized  by  law,  or 
ever  was  in  circulation  as  an  obligation 
of  the  United  States,  as  the  court  will 
take  judicial  notice  of  the  acts  of  con- 
gress authorizing  such  obligations  and 
the  form  and  substance  thereof.  U.  S. 
V.  Owens,  37  Fed.  Rep.   112. 

"  Words  and  Figures  Following."  —  The 
allegation  that  the  note  is  "in  the 
words  and  figures  following"  does  not 
mean  that  all  the  words  and  figures 
printed  on  the  back  of  the  bill,  and 
forming  no  part  of  the  contract  set 
forth  on  its  face,  are  stated.  U.  S.  v. 
Marcus,  53  Fed.  Rep.  7S4. 

4.  Scienter. —  An  indictment  under 
this  section  is  fatally  defective  if  it 
fails  to  allege  that  the  defendant  knew 
the  bill  to  be  false,  forged  and  counter- 
feited.    U.  S.  V.  Carll,  105  U.  S.  6ri. 

6.  For  present  statute  in  Indiana 
see    supra,    note    2,  p.  839.     See   also 


843 


Volume  5. 


6613.  COUNTERFEITING.  6613. 

[In  the  Porter  Circuit  Court  of  Indiana^  of  the  October  Term,  i857. 

State  of  Indiana 

against 

Frank  Wilkinson.  ]  ^ 

The  grand  jurors  of  the  state  oilndiana,  good  and  lawful  men  of 
Porter  county,  impaneled,  charged  and  sworn  in  the  said  Circuit 
Court  at  the  term  thereof  aforesaid,  to  inquire  within  and  for  the 
body  of  said  county,  upon  their  oaths  present,  that  Frank  Wilkinson^ 
late  of  said  county,  on  the  twentieth  day  oi  March,  a.  d.  i857,  at  Por- 
ter county,  did  unlawfully,  falsely,  fraudulently  and  feloniously,  give, 
barter,  sell,  utter,  publish,  and  put  away  to  one  Joseph  Jones,  a  certain 
false,  forged  and  counterfeit  bank  note,  which  said  note  was  made  in 
imitation  of,  and  did  then  and  there  purport  to  be  a  bank  note  for 
the  sum  oi  Jive  dollars,  issued  by  the  Farmers'  Bank  of  Kentucky,  made 
payable  to  bearer  on  demand  at  their  bank  in  Princeton,  which  said 
[false,  forged  and  counterfeit  bank]^  note  is  of  the  tenor  following, 
to  wit  (^Here  was  set  out  a  copy  of  the  note),  with  intent  to  defraud  the 
said  Joseph  Jones,"^  the  said  Frank  Wilkinson  then  and  there  well 
knowing*  the  said  note  to  be  false,  forged  and  counterfeit;  against 
the  peace  and  dignity  of  the  state  of  Indiana,  and  contrary  to  the 
form  of  the  statute  in  such  cases  made  and  provided. 

Mark  L.  Be  Motte,  Pros.  Att'y. 

b.  Foreign  Bank  Note. 

Form  No.  6613.' 

(Commencing  as  in  Form  No.  6591,  and  continuing  down  to*)  unlaw- 
fully and  feloniously  did  utter,  pass,  put  off  and  tender  in  payment 
to  one  Richard  Roe,  with  intent  to  defraud  said  Richard  Roe,  one 
certain  false,  forged  and  counterfeited  bank  note,  in  the  likeness 
and  similitude  of  a  bank  note  issued  by  a  bank  of  the  United  King- 
dom of  Great  Britain  and  Ireland,  to  wit,  the  Bank  of  England,  and 
intended  by  the  law  and  usage  of  the  said  foreign  government  to  circu- 
late as  money,  the  tenor  of  which  said  false,  forged  and  counterfeited 
bank  note  is  as  follows,  to  wit  {Ilere  set  out  a  copy  of  the  note),  he, 
the  said  John  Doe  then  and  there  well  knowing  the  same  to  be  false, 

other  sufficient  indictments  in  State  v.  3.  At  this  point  in  the  precedent  will 

Harris,  5  Ired.  L.  (27  N.  Car.)  287;  Jett  be  found  the  following  allegation,  "and 

V.  Com.,  18  Gratt.  (Va.)  933.  with  intent  to  have  the  same  put  in  cir- 

1.  The  words  and  figures  enclosed  culation,"  but  the  court  held  that  this 
by  [  ]  will  not  be  found  in  the  reported  was  harmless  surplusage,  being  a  part 
case,  but  have  been  added  to  render  of  the  language  of  another  section  of 
the  form  complete.  the  statute. 

2.  This  indictment  was  objected  to  4.  It  was  objected  to  this  indictment 
on  the  ground  of  uncertainty,  the  con-  that  it  did  not  aver  that  Jones,  to  whom 
tention  being  that  the  word  "said"  the  bill  was  passed,  did  not  know  that 
immediately  preceding  the  words  en-  it  was  counterfeit,  but  the  court  held 
closed  by  [  J  referred  to  the  genuine  that  the  objection  was  groundless,  no 
and  not  to  the  counterfeit  note,  but  the  such  averment  being  necessary, 
court  held  otherwise  and  sustained  the  6.  United  States.  —  23  Stat,  at  Large, 
indictment.      The    words   enclosed   by  c.  52,  §  4. 

[  ]  have  been  supplied  to  meet  the  ob- 
jection urged. 

844  Volume  5. 


6614. 


CO  UNTERFEITING. 


6614. 


torged  and  counterfeited^  against  the  peace  {concluding  as  in  Form 
No.  659t). 

III.  Selung  and  Bartering  Counterfeit  money. 
1.  Sellingr. 

Form  No.  6614. 

(Precedent  in  Leonard  v.  State,  29  Ohio  St.  409.) 


)  In  the  Court  of  Common  Pleas  of  Scioto  County, 
\      Ohio,  for  the  Term  of  February,  a.  d.  i876. 


[State  of  Ohio, 
Scioto  County,  ss. 

The  jurors  of  the  grand  jury  of  the  state  of  Ohio,  within  and  for 
the  body  of  the  county  of  Scioto,  impaneled,  sworn,  and  charged  to 
inquire  of  the  crimes  and  offenses  committed  within  said  county  of 
Scioto,  in  the  name  and  by  the  authority  of  the  state  of  Ohio,  on  their 
oaths  do  find  and  present  that  Richard  Leonard,  late  of  said  county, 
on  the  first  day  of  January,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seventy-six,  with  force  and  arms,  at town- 
ship, in  said  county  of  Scioto,  and  state  of  Ohio^  unlawfully,  feloni- 
ously, and  with  intent  to  defraud,^  did  sell  and  dispose  of  to  one 
George  Miller  a  certain  false,  forged  and  counterfeit  coin,  made  in 
the  likeness  and  similitude  of  a  silver  Mexican  dollar,  a  coin  currently 
passing  as  money  in  the  state  of  Ohio,  he,  the  said  Leonard,  then  and 
there  well   knowing  said   false,  forged  and  counterfeit  coin  to  be 


1.  Boqnisites  of  Indictment — Generally. 
—  For  the  formal  parts  of  an  indict- 
ment in  a  particular  jurisdiction  con- 
sult the  title  Indictments. 

For  statutes  relating  to  the  offense  of 
selling  and  bartering  counterfeit  coin  or 
paper  money  see  as  follows: 

Arizona.  —  Pen.  Code  (1887),  §  747. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 

§  1596- 

California.  —  Pen.  Code  (1897),  §  477. 

Connecticut.  —  Gen.  Stat.  (i888),  § 
1578. 

Idaho.  —  Rev.  Stat.  (1887).  §  7035. 

Indiana.  —  Horner's  Stat.  (1896),  § 
2209. 

Kansas.  — Qi^n.  Stat.  (1889),  §§  2256, 
2261. 

Kentucky.— S\3X.  (1894),  §  1189. 

Maryland.  — V\x\i.  Gen.  Laws  (1888), 
art.  27,  §  38. 

Missouri.  —  Rev.  Stat.  (1889),  §§  3634, 

3639 

Montana.  — Pen.  Code  (1895),  §  847. 

Nebraska. — Comp.  Stat.  (1897),  §  5746. 

New  fersey.  —  Gen.  Stat.  (1895),  p. 
I081,  §  174. 

North  Dakota.  — Kcv.  Codes  (1895), 
§  7422. 

Ohio.  —  Bates'  Anno.  Stat.  (1897), 
§  7104. 

Oklahoma.  —  Stat.  (1893),  §  2343. 


Pennsylvania. — Pepp.  &  L.  Dig.(l894), 
p.  1 140,  §  102. 

Utah.  —Rev.  Stat.  (1898),  §  4350. 
Virginia.  —Code  (1887),  |  3735. 
West  Virginia.  —  Code  (1891),  c.  146, 

§3. 

Unnecessary  Avemients.  —  An  indict- 
ment for  having  counterfeit  bank  notes 
in  possession,  and  for  making  sale  of 
them,  need  not  charge  that  the  sale 
was  for  a  consideration,  or  to  the  in- 
jury of  any  one  where  the  statute  does 
not  require  it,  or  that  the  notes  were 
indorsed.  And  if  such  acts  are  charged 
to  be  felonious  it  is  not  error,  although 
the  offense  is  a  misdemeanor.  Hess  v. 
State,  5  Ohio  5. 

Having  in  Possession  with  Intent  to  Sell. 
—  For  form  of  indictment  for  having 
counterfeit  bank  notes  in  possession 
with  intent  to  sell  and  barter  the 
same  see  Bevington  v.  State,  2  Ohio  St. 
161. 

2.  The  words  and  figures  enclosed 
by  [  ]  will  not  be  found  in  the  reported 
case,  but  have  been  added  to  render  the 
form  complete. 

3.  Intent  to  Defraud.  —  It  is  not  neces- 
sary, in  an  indictment  under  the  Ohio 
statute,  to  aver  that  the  sale  was  made 
with  an  intent  to  defraud.  Leonard  v. 
State,  29  Ohio  St.  408. 


845 


Volume  5. 


6615.  CO  UNTERFEITING.  6616. 

false,  forged  and  counterfeit,  [contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  state  of  Ohio. 

W.  W.  Farnham,  Prosecuting  Attorney.]^ 

Form  No.  6615." 

In  the  Posey  Circuit  Court  of  Indiana,  of  the  February  Term,  a.  d. 

1 857. 

State  of  Indiana  ) 

against         >• 

yohn  Doe.        ) 

The  grand  jury  of  the  county  of  Posey,  upon  their  oath,  do  present 
Xhz-X.  John  Doe,  on  they^rx/day  oi  January,  a.  d.  i8P7,  at  the  county 
of  Posey  aforesaid,  did  unlawfully  and  feloniously  sell  and  barter  to 
ont.  Richard  Roe,  one  forged  and  counterfeited  bank  note,  in  the  like- 
ness and  similitude  of  a  bank  note  issued  by  the  First  National 
Bank  of  Louisinlle,  Kentucky,  which  said  forged  and  counterfeited  bank 
note  is  as  follows,  to  wit  {Here  set  out  a  copy  of  the  note'),  with  intent 
to  defraud  the  sdi\(l  Richard  Roe,  he,  the  said  John  Doe,  then  and  there 
well  knowing  the  same  to  be  forged  and  counterfeited,  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  state  of  Indiana. 

Daniel  Webster,  Prosecuting  Attorney. 

2.  Advertising:  Green  Goods. 

Form  No.  6616. 

(Precedent  in  People  v.  Albow,  71  Hun  (N.  Y.)  123.) 
[Supreme  Court,  Dutchess  County. 
The  People  of  the  State  of  New  York 
against 
George  Albow. ^ 

The  grand  jury  of  Dutchess  county,  by  this  indictment,  accuses 
George  Albow  of  aiding,  abetting  and  assisting  in  a  scheme  of  offer- 
ing or  purporting  to  offer  for  sale  and  exchange  green  goods,  so 
called,  being   [counterfeit]^  paper  money,  or  pretending  so  to  be 

1.  The  words  enclosed  by  [  ]  will  not  of  appeals  (140  N.  Y.  130)  for  the  reason 
be  found  in  the  reported  case,  but  have  that  the  indictment  did  not  charge  the 
been  added  to  render  the  form  com-  offense  described  in  the  statute,  there 
plete.  being  no  averment  that  the  defendant's 

2.  This  form  is  drawn  under  Horner's  scheme  was  to  sell  or  exchange,  or  offer 
Slat.  Ind.  (1896),  §  2209,  and  contains  to  exchange,  "counterfeit"  money,  or 
substantially  the  same  state  of  facts  as  what  purported  to  be  such.  Such  aver- 
shown  by  the  indictment  in  Johnson  v.  ments  are  supplied  in  the  form  as 
State,  2  Ind.  652.     See  also  supra.,  note  given  in  the  text. 

I,  p.  845.  Similar  statutes  are  to  be  found  in 

3.  •' Counterfeit."  —  The       defendant     the  following  states: 

named  in  the  above  indictment,  drawn         Minnesota.  —  Stat.  (1894),  §  6708. 
under  N.  Y.  Pen.  Code,  §  527,  having        New  fersey.  —  Gen.    Stat.    (1894),   p. 
been    convicted,    the    conviction    was     1082,  §  183. 

affirmed  in  the  supreme  court  (71  Hun  Pennsylvania.  —  Pepp.  &  L.  Dig. 
(N.  Y.)  123),  but  reversed  in  the  court     (1894),  p.  1145,  §  116. 

846  Volume  5. 


6617.  COUNTERFEITING.  6617. 

[counterfeit]^  paper  money,  by  means  of  circular  and  letters  and 
telegrams  addressed  and  'sent  to  one  Ephraim  Cassell  at  East  Fork 
Post  Office,  in  State  of  North  Carolina,  in  the  months  of  December, 
iS92,  and  January,  i893,  and  by  which  the  said  Ephraim  Casseil  d^nd. 
Ira  Hogshead 'w^xt.  induced  to  come  to  the  city  of  Pougfikeepsie,  in  the 
county  of  Dutchess  and  State  of  New  York,  to  deal  with  him,  said 
George  A/bow,  therefor,  and  for  that  the  said  George  Albow,  on  the 
12th  day  of  February,  iS92,  at  the  city  of  Poughkeepsie  in  this  county, 
did  state  to  one  Ephraim  Cassell,  that  he  would  take  him,  said  Cassell, 
and  one  Hogshead  then  and  there  being,  to  an  old  gentleman  in  the 
city  of  Ne^v  York,  who  had  one  hundred  thousand  dollars  of  goods  like 
a  one  dollar  greenback  so  called,  being  a  treasury  note  issued  by  the 
government  of  the  United  States  of  America,  and  then  and  there  said 
Albow  showed  said  Cassell  said  one  dollar  treasury  note  as  aforesaid, 
when  he,  said  Ephraim  Cassell,  could  with  said  old  gentleman  exchange 
one  hundred  dollars  of  his,  CasselFs,  money  for  one  thousand  dollars  of 
said  old  gentleman's  [counterfeit]^  money,  which  said  Albow  \.\\t.n  and 
there  said  to  said  Cassell  at  said  city  of  Poughkeepsie,  on  said  12th  day 
of  February,  iS9S,  was  as  good  as  said  one  dollar  bill  which  he,  said 
Albo7v,  showed  to  said  Ephraim  Cassell,  and  asked  said  Cassell  to  go 
with  him  at  once  to  said  city  of  New  York,  and  also  one  Ira  Hogs- 
head to  get  the  said  [counterfeit]  ^  money  of  the  old  gentleman, 
which  said  [counterfeit]^  money  said  Albow  called  and  designated  as 
"goods,"  and  which  offer  and  statements  by  said  George  Albow  were 
to  carry  out  the  scheme  of  selling  or  pretending  to  sell  to  said  Cas- 
sell dind.  said  Hogshead  [counterfeit]^  "paper  money  "  or  "goods,"  or 
what  was  claimed  to  be  such  [with  intent  then  and  ^there  to  defraud 
said  Cassell  and  said  Hogshead],^  contrary  to  section  527  of  the  Code 
of  the  Penal  Code,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided  and  against  the  peace  of  the  People  of  the 
State  of  Ne7u  York  and  their  dignity. 

[Horace  D.  Hufcut,  District  Attorney  of  the  County  of  Dutchess.^^ 

IV.  HA.VING  Counterfeit  money  in  One's  possession. 

1.  Coin.* 

a.  Generally. 

1.  See  supra,  note  3,  p.  846.  —  For  the  formal  parts  of  an   indict- 

2.  Intent  to  Defrand. —  In  the  dissent-     ment  in  a  particular  jurisdiction   con- 
ing opinion  in  this  case  in  the  supreme     suit  the  title  Indictments. 

court  (71  Hun  (N.  Y.)  123),  attention  is  For  statatos  relating  to  the  ofifense  of 

called  to  the  fact  that  the  indictment  having  counterfeit  coin  in  one's   pos- 

did  not  allege   an    intent   to   defraud,  session  see  as  follows: 

No  notice  of  this  point  is  taken  by  the  Alabama.  —  Crim.     Code     (1886),    § 

higher  court  (140  N.  Y.   130),  but  the  3856. 

statute  contains  this  language,  which  Arizona.—  Pen.  Code  (1887),  §749. 

is  accordingly  inserted  in  the  text.  Arkansas. — Sand.  &  H.  Dig.  (1894), 

3.  The  words  enclosed  by  [  ]  will  not  §  1597. 

be  found  in  the  reported  case,  but  have  California.  —  Pen.  Code  (1897),  §  479. 

been  added    to    render  the  form  com-  Colorado. — Mills' Anno.  Stat.  (1891), 

plete.  §  1260. 

4.  BeqaisitM  of  Indictment —  Ghenerally.  Connecticut. —  Gen.  Stat.  (1888),  §  1578. 

847  Volume^. 


6617. 


CO  UNTERFEITING. 


6617. 


Florida.  —  Rev.  Stat.  (1892),  §§  2493, 
2494. 

Idaho.  —  Rev.  Stat.  (1887),  §  7037. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  1287,  par.  229, 

Indiana.  —  Horner's  Stat.  (1896),  § 
2211. 

/^wfl.  —  Code  (1897),  §  4862. 

Kentucky. — Stat.    (1894),  §  1 190. 

Kansas,  —  Gen.  Stat.  (1889),  §  2260. 

Maine.  —  Rev.  Stat.  (1883),  c.  121,  §  3. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
204,  §  14. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§§  9227,  9228. 

Minnesota.  —  Stat.  (1894),  §  6787. 

Mississippi.  —  Anno.    Code   (1892),    § 

IIIO. 

Missouri. —  Rev.  Stat.  (1889),  §  3638. 

Montana. —  Pen.  Code  (1895),  §  849. 

Nebraska. — Comp.  Stat.  (1897),  § 
6819. 

Nevada.  —  Gen.  Stat.  (1885),  §4639. 

New  Hampshire. — Pub.  Stat.  (1891), 
c.  274,  §  9. 

New  Jersey. — Gen.  Stat.  (1895),  p. 
1081,  i^  182.  This  section  prohibits 
keeping  any  counterfeit  coin  with  in- 
tent to  export  to  defraud  any  foreign 
government  or  its  subjects. 

New  Mexico.  —  Comp.    Laws   (1884), 

§795. 

New  York.  —  Pen.  Code,  §  526. 
North  Carolina. —  Code  (1883),  §  1036. 
This  section    prohibits  having  in  pos- 
session Spanish  milled  dollars. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  7436. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
7104. 

Oklahoma. — Stat.  (1893),  §  2362, 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
280,  §  9. 

Tennessee.  —  Code  (1896),  §  6616. 

Texas.  —  Pen.  Code  {1895),  art.  561. 

Utah.—  Rev.  Stat.  (1898),  §  4352. 

Vermont.  — Stat.  (1894),  §  4984. 

Virginia.  —  Code  (1887),  ^  3738. 

West  Virginia. — Code  (1891),  c.  146, 

§6. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  ^  4459- 

Wyoming.  —  Rev.  Stat.  (1887),  §  928. 

For  other  forma  of  indictment  see 
People  V.  Stanton,  39  Cal.  698;  Com.  v. 
Griffin,  21  Pick.  (Mass.)  523;  State  v. 
Keneston,  59  N.  H.  36. 

Number  of  Coins.  —  Under  the  statutes 
of  some  of  the  states,  the  number 
of  coins  the  defendant  had  in  his 
possession  is  immaterial,  the  stat- 
utes being  silent  on  this  point,  but 
in    other    states   the   defendant    must 


have  not  less  than  a  specified  number 
in  his  possession  to  be  guilty  of  an 
offense  under  the  statute,  or  if  he  had 
a  smaller  number  will  be  guilty  in  a 
lower  degree.     See  statutes  cited  supra. 

Describing  Coin  by  Denomination. — 
Where  the  charging  part  of  an  indict- 
ment was  that  the  defendant  "  had 
in  his  custody  and  possession  a  certain 
piece  of  false  and  counterfeit  coin, 
counterfeited  in  the  likeness  and  simili- 
tude of  the  good  and  legal  silver  coin, 
current  within  said  commonwealth  by 
the  laws  and  usages  thereof,  called 
a  dollar^  with  intent  then  and  there  to 
pass  the  same  as  true;  he,  the  said 
Stearns,  then  and  there  well  knowing 
the  same  to  be  false  and  counterfeit," 
it  was  objected  to  as  being  insufficient 
and  uncertain,  the  evidence  having 
proved  the  coin  to  be  in  the  similitude 
of  a  Mexican  dollar.  It  was  held  that, 
although  the  indictment  must  particu- 
larly set  forth  the  kind  of  coin  alleged 
to  be  counterfeit,  it  is  sufficient  to  de- 
scribe the  coin  by  denomination  or 
name,  the  place  of  coinage,  date,  etc., 
being  immaterial.  Com.  v.  Stearns, 
10  Met.  (Mass.)  256. 

Where  it  is  alleged  in  the  indictment 
that  the  defendant  had  in  his  possession 
certain  pieces  of  false  money  or  coin, 
counterfeited  in  the  similitude  of  sil- 
ver coin  current  by  law  and  usage  in 
the  state  of  Iowa,  it  is  not  necessary  to 
charge  that  the  coin  was  counterfeited 
in  the  similitude  of  the  current  coin  of 
the  United  States.  State  v.  Williams, 
8  Iowa  533. 

"At  the  Same  Time."  —  Where  the 
statute  prohibits  the  possession  of  a  cer- 
tain number  of  counterfeit  pieces  "  at 
the  same  time,"  these  exact  words 
must  be  used,  and  it  is  not  sufficient  to 
charge  that  the  accused  had  the  num- 
ber of  pieces  in  his  possession  on  a 
certain  day.  Scott  v.  Com.,  14  Gratt. 
(Va.)  687. 

Scienter.  —  Where  an  indictment  al- 
leged that  the  defendants  "wilfully, 
feloniously  and  knowingly  did  have  in 
their  possession  Jive  counterfeit  silver 
coins  of  the  species  of  the  silver  coin 
then  and  now  current  in  said  state 
of  California,  bi  the  denomination  of 
half  dollars,  with  intent  then  and 
there  wilfully,  feloniously  and  unlaw- 
fully to  utter  and  pass  the  same,  with 
intent  then  and  there  to  defraud  one 
Hyan  and  other  persons  to  the  grand 
jury  unknown,"  it  was  held  that  the 
defendant's  knowledge  of  the  spurious 
character  of  the  coin  was  substantially 


848 


Volume  5. 


6617. 


CO  UNTERFEITING. 


6617. 


Form  No.  6617.' 

(jCominencing  as  in  Form  'No.  6591,  and  continuing  down  to  *)  unlaw- 
fully, knowingly  and  feloniously  did  have  in  his  possession  /^//certain 
false,  forged  and  counterfeit  coins  (or  bars),  each  in  the  resemblance 
and  similitude  of  a  gold  (or  silver)  coin  (or  bar)  coined -and  stamped 
at  the  mints  (or  assay-offices)  of  the  United  States,  called  a  dollar  (or 
describing  the  bar,  giving  weight,  fineness  and  device  stamped  thereon), 
with  intent  to  defraud ^  a  certain  person  or  persons  to  the  grand 
jurors  aforesaid  unknown,^  he,  the  said  John  Doe,  then  and  there 
well  knowing*  the  said  false,  forged  and  counterfeit  coins  (or  bars) 
to  be  false,  forged  and  counterfeited,  against  the  peace  (concluding 
as  in  Form  No.  6591). 


People 


and   sufficiently   charged. 
iStanton,  39  Cal.  698. 

Alle^tion  of  Intent. —  It  is  provided 
by  statute  in  Tennessee  that  in  an  in- 
dictment for  fraudulently  keeping  in 
possession  counterfeit  money  or  bank 
notes,  it  is  not  necessary  to  aver  in  the 
indictment  that  the  party  charged  in- 
tended to  pass  or  impose  the  counterfeit 
money  on  the  community  as  good 
money.  Tenn.  Code  (1896),  §  7098; 
Sizemore  v.  State,  3  Head  (Tenn.)  26. 

1.    C/niteJ  States.  —  Rev.  Stat.  (1878), 

§  5457. 

Insufficient  Indictment.  —  In  U.  S.  v. 
Bicksler,  1  Mackey  (D.  C.)  341,  will  be 
found  the  following  indictment,  to  wit: 

"The  grand  jurors  of  the  United 
States  of  America  in  and  for  the  county 
and  district  aforesaid,  upon  their  oath 
present;  That  one  Thomas  J.  Bicksler, 
late  of  the  county  and  district  afore- 
said, on  ihe  first  day  oi  January,  in  the 
year  of  our  Lord  one  thousand  eight 
hundred  and  eighty,  and  at  divers  other 
days  between  the  said  last  named  day 
and  the  date  of  the  taking  of  this  in- 
quisition at  the  county  and  district 
aforesaid,  ten  certain  false,  forged  and 
counterfeit  coins,  each  in  the  resem- 
blance and  similitude  of  the  minor  sil- 
ver coinage  which  has  been  coined  at 
the  mints  of  the  United  States,  called  a 
half  dollar,  ten  certain  false,  forged  and 
counterfeited  coins,  each  in  the  resem- 
blance and  similitude  of  the  minorsilver 
coinage  which  has  been  coined  at  the 
mints  of  the  United  States,  called  a 
quarter  dollar,  ten  certain  false,  forged 
and  counterfeited  coins,  each  in  the  re- 
semblance and  similitude  of  the  minor 
silver  coinage  which  has  been  coined 
at  the  mints  of  the  United  States,  called 
a  dime,  and  ten  certain  false,  forged  and 
counterfeited  coins,  each  in  the  resem- 
blance and  similitude  of  the  minor  silver 
coinage  which  has  been  coined  at  the 

5  E.  of  F.  P.  —  54.  849 


mints  of  the  United  States,  called  a  half 
dime,  with  force  and  arms,  unlawfully, 
knowingly  and  feloniously  did  have  in 
his  possession  with  intent  to  defraud  a 
certain  person  to  the  grand  jurors 
aforesaid  unknown,  against  the  form 
of  the  statute  in  such  case  made  and 
provided  and  against  the  peace  and 
government  of  the  United  States  of 
America."  The  indictment  was  held 
insufficient  for  the  following  reasons: 

1.  That  as  the  offense  of  having  in 
possession  counterfeit  gold  or  silver 
coin  is  not  complete  unless  the  accused 
had  them  in  his  possession  "knowing 
the  same  to  be  false,  forged  or  counter- 
feit," the  indictment  must  so  allege. 

2.  That  under  section  3515  of  the  Re- 
vised Statutes  none  of  the  particular 
coins  mentioned  in  the  indictment  are 
embraced  under  the  term  "  minor 
coins,"  and  as  none  of  these  minor 
coins  contain  silver,  there  is  no  such 
thing  known  to  the  law  as  "  minor 
silver  coinage,"  and  the  indictment  set 
forth  an  offense  not  known  to  the  law. 

3.  That  the  counterfeiting  of  half 
dimes  cannot  be  punished  under  the  act 
relating  to  minor  coins,  but  must  be 
sought  under  the  act  punishing  the 
forging  of  silver  coins 

EngUsli  Precedent.  —  For  an  English 
precedent  of  indictment  for  having 
counterfeit  coins  in  one's  possession 
see  Reg.  v.  Martin,  11  Cox  C.  C.  343. 

2.  Intent  to  Defiraud.  —  An  allegation 
of  intent  to  defraud  is  necessary.  U.  S. 
V.  Otey,  31  Fed.  Rep.  72. 

3.  Person  to  be  Defraaded.  —  This  is  a 
sufficient  description  of  the  person  to 
be  defrauded.  It  is  not  necessary  to 
give  the  name  of  such  person.  U.  S. 
V.  Bicksler,  i  Mackey  (D.  C.)  341. 

4.  Scienter.  —  The  allegation  of  sci- 
enter is  necessary.  U.  S.  v.  Bicksler, 
I  Mackey  (D.  C.)  341. 


Volume  5. 


6618.  COUNTERFEITING.  6620. 

Form  No.  6618. 

(Ala.  Crim.  Code  {1886),  p.  269.  No.  31.)' 

{Commencing  as  in  Form  No.  6599,  and  continuing  down  to  *)  John 
Doe  had  in  his  possession  a  counterfeit  of  o.  gold  coin  of  the  United 
States,  of  the  denomination  oi  ten  dollars,  which  was  at  the  time^ 
current  in  this  state,  knowing  the  same  to  be  counterfeit,  and  with 
intent  to  defraud  or  injure,  by  uttering  the  same  as  true,  or  caus- 
ing it  to  be  so  uttered,  against  the  peace  (^concluding  as  in  Form 
No.  6599). 

b.  Foreign  Coin. 

Form  No.  6619. 

(Precedent  in  Com.  v.  Fuller,  8  Met.  (Mass.)  313.)^ 

[Commonwealth  of  Massachusetts,  \  At  the  Superior  Court,  begun 

County  of  Middlesex,  )      '    and  holden  at  Lowell,  within 

and  for  the  county  of  Middlesex,  on  the  second  Monday  of  September, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty-four. 
The  jurors  for  the  Cotnmonwealth  of  Massachusetts,  upon  their  oath 
present  that  David  R.  Fuller,  late  of  Lo7vell,  in  the  county  of  Middle- 
sex aforesaid,  on  ^ht  fifteenth  day  of  April,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  zx\^  forty-four\^  at  Lowell,  in  the  county 
of  Middlesex,  had  in  his  custody  and  possession,  at  the  same  time, 
ten  similar  pieces  of  false  and  counterfeit  coin,  of  the  likeness  and 
similitude  of  the  silver  coin  current  within  this  Commonwealth,  by  the 
laws  and  usages  thereof,  called  Mexican  dollars,  with  intent  then  and 
there  the  said  pieces  of  false  and  counterfeit  coin  to  utter  and  pass 
as  true,  he  the  said  David  R.  Fuller  then  and  there  well  knowing 
the  same  to  be  false  and  counterfeit,  against  the  peace  of  the  Com- 
monwealth, and  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided. 

\Daniel  Huntington,  District  Attorney.]* 

Form  No.  6620. 

(Minn.  Stat.  (1894),  §  7239,  No.  23.) 
The  district  court  for  the  county  of  Ramsay  and  state  of  Minnesota: 
The  State  of  Minnesota 
vs. 
John  Doe. 
John  Doe  is  accused  by  the  grand  jury  of  the  county  of  Ramsay,  by 

1.  Alabama.  —  Crim.  Code  (1886),  §  by  the  laws  and  usages  thereof,  called 
3856.  a  half  dollar  "  was  held  bad.      Nichol- 

2.  Time  When    Cnrrent.  —  The    time     son  v.  State,  18  Ala.  529. 

when  a  coin,  of  which  a  counterfeit  is  3,  This  form  is  drawn  under  an  early 

in  the  possession  of  the  accused,  was  ^(7jjrt<r//MJ^to  statute,  which  is  identical 

current  is  a  material  ingredient  of  the  with  Mass.   Pub.  Stat.  (1882),  c.  204,  § 

offense,    and   an    indictment    alleging  14.    The  indictment  was  held  sufficient, 

merely   that   defendant   "  had    in    his  4.  The  words  enclosed  by  [  ]  will  not 

custody   and   possession    the   piece   of  be  found  in  the  reported  case,  but  have 

false  coin,  forged,"  etc.,   "to  the  like-  been  added   to  render  the   form    com- 

ness,"  etc.,  "  of  the  good  and  legal  coin,  plete. 
current  within   the  limits  of  this  state, 

850  Volume  5. 


6621. 


CO  UNTERFEITING. 


6621. 


this  indictment,  of  the  crime  of  having  in  his  possession  counterfeit 
money,  committed  as  follows:  The  said  John  Doe,  on  theyfr^/day  of 
February  a.  d.  \W8,  at  the  city  of  St.  Paul,  in  this  county,  had  in  his 
possession  a  counterfeit  of  a  gold  (or  silver')  coin  of  the  Republic  of 
Mexico,  called  a  dollar,  which  was  at  that  time  current  in"  this  state, 
knowing  the  same  to  be  counterfeited,  with  intent  to  defraud  (or 
injure)  by  uttering  the  same  as  true  (^or  false). 

Dated  at  St.  Paul,  in  the  county  of  Ramsay,  the  first  day  of  April, 
A.  D.  iS98. 

A  True  Bill. 

Andrew  Jackson,  foreman  of  the  grand  jury. 


2.  Paper  Money.^ 
a.  Generally. 


1.  Beqniiites  of  Indictment  —  Gener- 
ally.—  For  the  formal  parts  of  an  in- 
dictment in  a  particular  jurisdiction 
consult  the  title  Indictments. 

For  statutes  relating  to  the  offense  of 
having  in  one's  possession  counterfeit 
paper  money  see  as  follows: 

Arizona.  —  Pen.  Code  (1887),  §  745. 

^ry^awjaj.  — Sand.  &   H.  Dig.  (1894), 

§  1597. 

California.  —  Pen.  Code  (1897),  §  475. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  1261. 

Connecticut.  —  Gen.  Stat.  (1888),  § 
1578. 

Florida.  —  Rev.  Stat.  (1892),  §  2486. 

Georgia.  —  3  Code  (1895),  ^  240. 

Idaho.  — Ke^\.  Stat.  (1887),  §  7033. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  1286,  par.  223. 

Indiana.  —  Horner's  Stat.  (1896),  § 
2211. 

Iowa.  —  Code  (1897),  §  4857. 

Kansas.  —  Gen.  Stat.  (1889),  §  2257, 

Kentucky.  —  Stat.  (1894).  §  1190. 

Maine.  — Rtv.  Stat.  (1883),  c.  121, 
§  3. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
204.  §  5- 

Michigan.  —  How,  Anno.  Stat.  (1882), 
§^  9217,  9220. 

Mississippi.  —  Anno.  Code  (1892),  § 
1 109. 

Missouri.  —  Rev.  Stat.  (1889),  §  3635. 

Montana. —  Pen.  Code  (1895),  §  845. 

Nebraska.  —  Comp.  Stat.  (1897),  § 
6812. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  224,  §  5. 

New  fersey.  —  Gen.  Stat.  (1895),  p. 
1081,  §  176. 

New  Mexico.  —  Comp.  Laws  (1884), 
§786. 


North  Dakota.  —  Rev.  Codes  (1895),  § 

7423- 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§1811. 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 
7104. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1 143,  §  no. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
280,  §  4. 

Tennessee.  —  Code  (1896),  §  6602. 

Texas.  —  Pen.  Code  (1895),  art.  544. 

Utah.  —  Rev.  Stat.  (1898),  ^  4348. 

Vermont.  — Stat.  (1894),  §  4980. 

Virginia.  —  Code  (1887),  S5  3738, 

West  Virginia.  —  Code  (1891),  c.  146, 

§^- 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 

(1889),  §  4455- 

Wyoming.  —  Rev.  Stat.  (1887),  §  927. 

For  other  forms  of  indictments  for 
having  counterfeit  bank  notes  in  pos- 
session see  Gabe  v.  State,  6  Ark.  519; 
Clark  V.  Com.,  16  B.  Mon.  (Ky.)  211; 
State  V.  Bonney,  34  Me.  223;  State  v. 
Symonds,  36  Me.  128;  Brown  v.  Com., 
8  Mass.  59;  State  z/.  Randall,  2  Aik.  (V^t.) 
89. 

For  Having  in  Possession  Tom  Bills.  — 
For  an  indictment  see  Com.  v.  Hay- 
ward,  10  Mass.  34. 

Use  of  Certain  Words  —  '"Feloniously." 
In  an  indictment  for  having  in  posses- 
sion counterfeit  bank  notes  with  intent 
to  utter  or  pass  the  same  as  genuine  it 
is  not  necessary  to  charge  that  the 
offense  was  committed  feloniously,  in- 
famously or  criminally;  if  the  offense 
is  charged  in  the  words  of  the  statute 
it  is  sufficient.  Quigley  v.  People,  3 
111.  301. 

"'At  Same  Time."  —  Where  a  statute 
makes  it  an  offense  to  have  in  posses- 


851 


Volume  5. 


6621. 


CO  UNTERFEITING. 


6621. 


sion  "at  any  one  time  any  number 
not  less  than  ten  "  similar  counterfeit 
bank  bills,  knowing  them  to  be  coun- 
terfeit and  with  intent  to  utter  the 
same,  an  indictment  founded  thereon 
which  alleged  that  defendant  "had  in 
his  custody  and  possession  ten  similar 
false,  forged  and  counterfeit  bank  bills," 
on  a  certain  day,  w^as  held  insufficient 
for  the  reason  that  a  material  part  of 
the  offense  consisted  in  possessing  ten 
similar  counterfeit  bills  "at  one  and 
the  same  time,"  and  should  have  been 
so  alleged.  Edwards  v.  Com.,  ig  Pick. 
(Mass.)  124;  State  v.  Bonney,  34  Me. 
223. 

" /«  the  Similitude  of.'"  —  Where  an 
indictment  alleged  the  defendant  had 
"in  his  custody  and  possession,  at  the 
same  time,  ten  similar  false,  forged 
and  counterfeit  bank  bills,"  etc.,  it  was 
held  that  the  allegation  was  insufficient 
for  the  reason  the  word  "similar"  is 
not  equivalent  to  the  language  of 
the  statute,  "  in  the  similitude  of."  and 
cannot  be  substituted  for  it.  State  v. 
McKenzie,  42  Me.  392. 

"  Bank  Bill  and  Note."  —  An  indict- 
ment which  describes  the  forged  in- 
strument as  a  "bank  bill  and  note," 
when  the  words  of  the  statute  are  a 
"  bank  bill  or  note,"  is  not  defective. 
Stone  V.  State,  20  N.  J.  L.  404. 

'^Commonly  Called  Bank  Note."  — 
Where  an  indictment  uses  the  words 
"  commonly  called  a  bank  note  "  in  the 
description  of  the  forged  instrument, 
in  addition  to  the  description  of  the 
instrument  given  in  the  statute,  they 
will  be  rejected  as  surplusage  or  con- 
sidered as  words  of  additional  descrip- 
tion.    Stone  V.  State,  20  N.  J.  L.  404. 

Copy  of  Note — Generally. — The  in- 
dictment must  set  forth  a  copy  of  the 
counterfeit  note  or  allege  a  sufficient 
reason  for  not  doing  so.  Hooper  v. 
State,  8  Humph.  (Tenn.)  93;  Stale  v. 
Calendine,  8  Iowa  288;  State  v.  Bon- 
ney, 34  Me.  383;  McMillen  v.  State,  5 
Ohio  269;  Com.  v.  Houghton,  8  Mass. 
107.  See  also  Com.  v.  Carey,  2  Pick. 
(Mass.)  47;  Bevington  v.  State,  2  Ohio 
St.  161;  Fergus  v.  State,  6  Yerg.  (Tenn.) 
345;  State  V.  Wheeler,  35  Vt.  261. 

Immaterial  Variances.  —  In  setting 
out  a  bill  immaterial  variances  will  not, 
however,  be  fatal.  Thus,  where  a  bill 
or  note  introduced  in  evidence  was  let- 
tered "  C  "  and  the  copy  set  out  omitted 
this  letter.  Quigley  v.  People,  3  111.  301. 
And  so  where  the  copy  of  the  bill  pur- 
ported to  be  signed  by  "P.  E.  Spinner" 
and  the  name  actually  signed  was  "  F. 


E.  Spinner."  Com.  v.  Hall.  97  Mass. 
571. 

Excuse  for  Not  Setting  Out.  —  Where 
an  indictment  charged  that  the  defend- 
ant "  feloniously  did  have  in  his  posses- 
sion forty  forged,  false  and  counterfeit 
five  dollar  bank  notes  issued  by  the 
Market  Bank"  and  that  the  counterfeit 
notes  were  in  possession  of  the  defend- 
ant, and  therefore  a  more  particular 
description  was  to  the  jurors  unknown, 
etc.,  it  was  held  that  the  reason  for  not 
setting  out  the  notes  was  sufficient  and 
the  indictment  good.  Armitage  v. 
State,  13  Ind.  441. 

Allegation  as  to  Currency.  —  Where  the 
statute  uses  the  words  "current  in 
the  state,"  or  words  to  similar  effect,  the 
indictment  should  contain  an  allegation 
that  the  note,  of  which  a  counterfeit 
was  in  the  possession  of  the  accused, 
was  at  the  time  current  in  the  state. 
State  V.  Shelton,  7  Humph.  (Tenn.)  31. 

Corporate  Existence  of  Bank. —  It  is 
not  necessary  to  aver  the  corporate  ex- 
istence of  the  bank.  Quigley  v.  Peo- 
ple, 3  111.  301;  Owen  V.  State,  5  Sneed 
(Tenn.)  495;  Fergus  v.  State,  6  Yerg. 
(Tenn.)  345. 

In  State  v.  Weller,  20  N.  J.  L.  521,  it 
was  held  sufficient  to  charge  in  an  in- 
dictment that  the  defendant  had  in  his 
possession  a  counterfeit  note,  with  in- 
tent to  pass  the  same  with  intention  to 
defraud  a  certain  named  bank,  with- 
out averring  that  the  bank  was  incor- 
porated. In  the  opinion  this  case  is 
distinguished  from  Stone  v.  State,  20 
N.  J.  L.  401,  in  which  it  was  held  that 
in  an  indictment,  under  a  separate  sec- 
tion of  the  act,  for  having  in  possession 
an  unfinished  counterfeit  note  in  the 
form  of  a  note  "  made  to  be  issued  by 
an  incorporated  bank,"  an  allegation 
of  the  incorporation  of  the  bank  is 
material. 

Where  an  indictment  for  having  in 
possession  counterfeit  bank  bills  al- 
leges that  the  bank  whose  bills  are 
counterfeited  is  an  incorporated  com- 
pany in  a  particular  place  and  state,  it 
is  equivalent  to  stating  that  the  bank 
was  established  in  such  state.  People 
V,  Stewart,  4  Mich.  655,  5  Mich.  243. 

Intent  to  Defraud  —  Generally.  —  The 
indictment  should  contain  an  allega- 
tion of  intent  to  defraud.  State  v. 
Calendine,  8  Iowa  288;  Stone  v.  State, 
20  N.J.  L.  404;  Com.  V.  Davis,  11  Gray 
(Mass.)  8;  Hooper  v.  State,  8  Humph. 
(Tenn.)  100;  Fergus  v.  State,  6  Yerg. 
(Tenn.)  345.  See  also  Townsend  v. 
People,  4  111.  327;  Clark  v.  Com.,  16  B. 


853 


Volume  5. 


6621. 


COUNTERFEI  TING. 


6621. 


Form  No.  6621. 

(Precedent  in  U.  S.  v.  Williams,  4  Biss.  (U.  S.)  302.)' 

[(Commencing  as  in  Form  No.  6591,  and  continuing  down  to  *)]2  un- 
lawfully,  feloniously  and  knowingly  did  then  and  there  have  and 
keep  in  his  possession,  and  conceal,  with  intent  then  and  there  to 


Mon.  (Ky.)  206;  Com.  v.  Carey,  2  Pick. 
(Mass.)  47;  State  v.  Morton,  8  Wis.  352. 
But  it  is  not  necessary  to  allege  an  in- 
tent to  defraud  a  particular  person. 
State  V.  Calendine,  8  Iowa  288; 
Hooper  v.  State,  8  Humph.  (Tcnn.)  93; 
State  V.  Morton,  8  Wis.  352.  See  also 
Gabe  v.  State,  6  Ark.  524;  Quigley  v. 
People,  3  111.  301;  Stone  v.  State,  20  N. 
J.  L.  404;  Fergus  v.  State,  6  Yerg. 
(Tenn.)  352. 

The  People. —  In  an  indictment  for 
having  a  counterfeit  bank  promissory 
note  in  possession  it  is  insufficient  to 
charge  an  intent  "  to  defraud  the  peo- 
ple of  the  state  of  New  Jersey,"  but  it 
is  sufficient  to  allege  an  intent  to  de- 
fraud the  Commercial  Bank  of  Balti- 
more, without  averring  that  the  bank 
was  incorporated.  State  v.  Weller,  20 
N.  J.  L.  521;  Stone  v.  State,  20  N.  J.  L. 
404. 

Illegal  Banking  Corporation.  — Where 
an  indictment  for  having  counterfeit 
bank  notes  in  possession  alleged  an  in- 
tent to  defraud  a  particular  bank  which 
had  been  incorporated  under  an  act  of 
the  legislature  which  did  not  receive 
a  sufficient  number  of  votes  to  make  it 
a  law,  it  was  held  that  there  could  not 
be  a  conviction  on  the  indictment.  De 
Bow  V.  People,  i  Den.  (N.  Y.)  9. 

Wilful  or  Felonious  Intent.  —  It  is  not 
necessary  to  charge  a  wilful  or  felonious 
intent  to  defraud.  State  v.  Calendine, 
8  Iowa  288. 

Intent  to  Pan  —  Generally.  —  An  alle- 
gation of  intent  to  pass  is  generally 
necessary.  Gabe  v.  State,  6  Ark.  519; 
Townsend  v.  People,  4  111.  326;  Clark 
V.  Com.,  i6  B.  Mon.  (Ky.)  206;  Hop- 
kins V.  Com.,  3  Met.  (Mass.)  460;  Com. 
V.  Davis,  II  Gray  (Mass.)  4;  Com.  v. 
Price,  ID  Gray  (Mass.)  472;  Com.  v. 
Cone,  2  Mass.  132.  But  this  allegation 
is  no  longer  required  in  Tennessee. 
Sizemore  v.  State,  3  Head  (Tenn.)  27. 

As  True  and  Genuine.  —  Whether  it 
will  be  necessary  to  allege  an  intent  to 
pass  the  counterfeit  bill  as  true  and 
genuine  depends  upon  the  language  of 
the  statute  under  which  the  indictment 
is  drawn.  Thus  it  has  been  held  under 
the  Massachusetts  statute  that  an  indict- 


ment alleging  that  defendant  had  a 
counterfeit  bill  in  his  possession  "  with 
intent  to  pass  the  same  "  is  sufficient 
without  alleging  an  intent  to  pass  "  as 
true."  Hopkins  v.  Com.,  3  Met.  (Mass.) 
460.  See  also  Com.  v.  Price,  10  Gray 
(Mass.)  472,  71  Am.  Dec.  66g;  Com.  v. 
Cone,  2  Mass.  132. 

But  under  the  Michigan  statute  the 
contrary  view  is  held.  People  v.  Stew- 
art, 4  Mich.  655,  5  Mich.  243. 

Place  of  Passing.  —  In  an  indictment 
for  having  counterfeit  bills  in  pos- 
session with  intent  to  put  them  in 
circulation  it  is  not  necessary  to  state 
that  the  intent  was  to  pass  them  in 
the  county  where  the  indictment  was 
found.  Spence  v.  State,  8  Blackf.  (Ind.) 
282. 

Upon  an  indictment  charging  that 
the  defendant  had  a  counterfeit  bill  at 
Boston,  "  with  intent  then  and  there  to 
utter  and  pass  the  same,"  it  was  held 
that  the  words  "  then  and  there"  were 
needless,  and  should  be  construed  as 
if  they  had  been  inserted  before  the 
words  "  with  intent,"  so  that  they  refer 
to  the  intent  to  pass  and  not  to  the 
time  and  place  of  the  intended  passing; 
it  is  immaterial  where  the  defendant 
intended  to  pass  the  bill.  Com.  v. 
Price,  10  Gray  (Mass.)  472,  71  Am. 
Dec.  669.  See  also  Clark  v.  Com. ,  16 
B.  Mon.  (Ky.)  206;  Com.  v.  Cone,  2 
Mass.  132. 

Scienter.  —  The  indictment  should  al- 
lege that  the  defendant  knew  the  bills 
in  his  possession  were  counterfeit. 
Owen  V.  State,  5  Sneed  (Tenn.)  495. 
See  also  Townsend  v.  People,  4  111. 
327;  Buckley  v.  State,  2  Greene  (Iowa) 
162;  Clark  V.  Com.,  16  B.  Mon.  (Ky  ) 
206;  Brown  v.  Com.,  8  Mass.  67;  Com. 
V.  Carey,  2  Pick.  (Mass.)  47;  Fergus  xl 
State,  6  Yerg.  (Tenn.)  345;  State  v. 
Morton,  8  Wis.  352. 

1.  This  indictment  was  based  on  sec- 
tions ID  and  13  of  the  act  of  congress 
of  June  30,  1864,  which  is  now  con- 
tained in  U.  S.  Rev.  Stat.  (1878),  §§  5413, 

5431- 

2.  The  matter  to  be  supplied  within 
[  ]  will  not  be  found  in  the  reported 
case. 


853 


Volume  5. 


6622. 


CO  UNTERFEITING. 


6622. 


pass,  utter,  and  publish  as  true  to  some  person  or  persons  to  the 
grand  jurors  aforesaid  unknown,  one'^  certain  false,  forged  and  coun- 
terfeit national  bank^  note;  which  said  false,  forged  and  counter- 
feit bank  note  is  as  follows,  to  wit  (^Here  ivas  set  out  a  copy  of  the 
note^j^  with  intent  then  and  there  thereby  to  defraud  some  person  or 
persons  to  the  grand  jurors  aforesaid  unknown,  he,  the  said  Charles 
Williams,  then  and  there  well  knowing  the  said  national  bank  note 
to  be  false,  forged  and  counterfeit,  contrary  to  the  form  of  the 
statute  [{concluding  as  in  Form  No.  6591).\^ 


Form  No.  6622. 

(Precedent  in  Tomlinson  v.  People,  5  Park.  Cr.  Rep.  (N.  Y.  Supreme  Ct.)  314. ) 

City  a«</ County  oi  New  York,  ss: 

The  jurors  of  the  People  of  the  State  of  New  York,  in  and  for  the 
body  of  the  city  and  county  oi  New  York,  upon  their  oath,  present: 

That  IVilliam  Smith,  late  of  the^rst  ward  of  the  city  of  New  York, 
in  the  county  of  Neia  York,  aforesaid,  and  yohn  Tomlinson,  late  of  the 


1.  The  nomber  of  notes  must  be  stated, 
and  ^n  averment  that  the  defendant 
had  in  his  possession  "divers  false, 
forged  and  counterfeit "  notes  is  insuf- 
ficient.    U.  S.  V.  Fisler,  4  Biss.  (U.  S.) 

59- 

2.  Name  of  Bank.  —  The  indictment 
need  not  aver  that  the  counterfeit  note 
purported  to  be  a  note  of  any  desig- 
nated national  bank,  if  the  instrument 
be  copied  into  the  indictment  and  by 
its  terms  purports  to  be  such  a  note. 
U.  S.  V.  Williams,  4  Biss.  (U.  S.)  302. 

Incorporation  of  Bank. —  It  is  not  neces- 
sary that  the  indictment  should  aver 
that  the  bank  was  a  legal  corporation: 
the  national  courts  will  take  judicial 
notice  of  the  existence  of  all  national 
banks.  U.  S.  v.  Williams,  4  Biss. 
(U.  S.)  302. 

3.  Copy  of  Note.  —  The  indictment 
must  not  only  set  out  but  must  profess 
to  set  out  an  exact  copy  of  the  counter- 
feit note,  or  must  state  some  valid 
reason  for  not  doing  so,  and  an  indict- 
ment charging  that  the  defendant  "  un- 
lawfully and  feloniously  did  have  and 
keep  in  his  possession,  and  conceal, 
with  intent  to  pass,  utter  and  publish 
as  true,  divers  false,  forged  and  coun- 
terfeit treasury  notes,  and  each  of  them 
are  in  substance  described  as  follows, 
that  is  to  say,"  one  of  the  supposed 
forged  notes  being  pasted  on  the  in- 
dictment at  this  point,  is  insufficient. 
U.S.  z.'.  Fisler,  4  Biss.  (U.  S,)  59.  In 
this  case  the  court  expressed  a  doubt 
whether  it  is  sufficient  to  paste  the 
counterfeit  note  itself  on  the  indictment 
as  a  part  of  it. 


Failure  to  set  out  a  copy  is  sufficiently 
excused  by  the  following  averment,  to 
wit: 

"And  the  grand  jurors  aforesaid, 
upon  their  oath  aforesaid,  do  further 
present  and  say  that  the  said  false, 
forged  and  counterfeit  notes  and  obli- 
gations so  kept  and  had  in  the  posses- 
sion of  the  said  Martin  D.  Howell  as 
aforesaid  are  not,  and  each  of  them  is 
not,  more  particularly  described  herein, 
and  copies  thereof,  and  the  tenors 
thereof,  respectively,  and  of  each  there- 
of, are  and  is  not  herein  set  forth,  for 
the  reason  that  the  grand  jurors  afore- 
said have  no  knowledge  or  informa- 
tion as  to  where,  in  whose  possession, 
or  under  whose  control  the  said  false, 
forged  and  counterfeit  notes  and  obli- 
gations, and  each  thereof,  now  are 
and  is,  and  have  and  has  been  since  the 
same  were  and  was  so  kept  and  had  in 
the  possession  of  the  said  Martin  D. 
Howell,  as  aforesaid."  U.  S.  v.  Howell, 
64  Fed.  Rep.  no. 

Where  an  indictment  charged  that 
the  defendant  had  in  his  possession 
counterfeit  United  States  treasury 
notes,  it  was  held  unnecessary  to  aver 
that  the  counterfeits  were  made  in  the 
resemblance  of  genuine  notes,  and  that 
the  indictment  need  not  in  terms  set 
forth  the  name  of  the  counterfeit  notes, 
as  the  court  will  determine  what  they 
are  by  the  copies  set  forth  in  the  indict- 
ment. U.  S.  V.  Trout,  4  Biss.  (U.  S.) 
105. 

4.  The  matter  to  be  supplied  within 
[  ]  will  not  be  found  in  the  reported 
case. 


854 


Volume  5. 


6623.  COUNTERFEITING.  6623. 

same  place,  on  the  M/W<f<f«M  day  of  ^a^aj/,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  sixty-one,  with  force  and  arms  at  the 
ward,  city  and  county  aforesaid,  feloniously  had  in  their  possession  a 
certain  forged  and  counterfeited  negotiable  promissory  note,  for  the 
payment  of  money,  to  wit,  the  sum  oi  five  dollars,  commonly  called  a 
bank  note,  purporting  to  have  been  issued  by  a  certain  corporation 
or  company,  called  the  Judson  Bank,  duly  authorized  for  that  purpose 
by  the  laws  of  the  State  oi  Neio  York,  a  further  description  of  which 
said  last  mentioned  forged  and  counterfeited  negotiable  promissory 
note,  for  the  payment  of  money,  is  to  the  jurors  aforesaid  unknown,^ 
with  intention  to  utter  and  pass  the  same  as  true,  and  to  permit,  cause 
and  procure  the  same  to  be  so  uttered  and  passed,  with  the  intent  to 
injure  and  defraud  one  Charles  Meyer,  and  divers  other  persons  to  the 
jurors  aforesaid  unknown,  he,  the  said  William  Smith  zxiA  John  Tom- 
linson,  then  and  there  well  knowing  the  said  last  mentioned  forged 
and  counterfeited  promissory  note,  for  the  payment  of  money,  to  be 
forged  and  counterfeited  as  aforesaid,  against  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  of  the  People 
of  the  State  of  New  York  and  their  dignity. 

Nelson  J.  Waterbury,  District  Attorney. 

b.  Blank  and  Unfinished  Bank  Note. 
Form  No.  6623. 

(Precedent  in  Com.  v.  Woods,  10  Gray  (Mass.)  477.)' 

^Commencing  as  in  Form  No.  6619,  and  continuing  downto^y^  had 
in  nis  custody  and  possession  a  certain  false,  forged  and  counterfeit 
promissory  note*  for  the  payment  of  money,  of  the  tenor  following, 
that  is  to  say:^ 

1.  Description  of  Note.  —  This  indict-  Delaware.  —  Rev.  Stat.  (1893),  p.  949, 
ment  was  objected  .to  on   the  ground     c.  129,  ^2. 

that  it  was  insufficient  in  that  it  did  not         Idaho.  —  Rev.  Stat.  (1887),  §  7033. 
set  forth  a  copy  of  the  note  or  allege         Montana.  —  Pen.  Code  (1895),  §  845. 
a  reason  for  not  so  doing,  but  the  court         Nevada.  — Gen.  Stat.  (1885),  i^  4642. 
held   that   this   was   unnecessary.     See         New  Jersey. — Gen.     Stat.    (1895),    p. 

further,   on  this  point,  note  3,  p.  854,  1081,  §  177. 
supra.                                                      '  New  York.  —  Pen.  Code,  §  511. 

2.  This  indictment  was  properly  North  Dakota.  —  Rev.  Codes  (1895), 
framed,    although    the    proof    showed  §  7420. 

the  possession  of  a  falsely  and  fraudu-  Ohio.  —  Bates'  Anno.  Stat.  (1897),  § 

lently  altered  genuine  bank  note.     See  7104. 

Mass.  Pub.  Stat.  (1882),  c.  204,  §  5.  Tennessee.  —  Code  (1896),  §  6602. 

For   other   statutes    relating   to    the  Utah.  —  Rev.  Stat.  (1898),  §  4348. 

possession    of     blank    and    unfinished  Wyoming. — Rev.  Stat.  (1887),  §  927. 

forged  or  counterfeited  bank  notes  see  3.  The  words  to  be  supplied  within  [  1 

as  follows:  will  not  be  found  in  the  reported  case. 

Alabama.  — Crim.  Code  (1886),  §  3857.  4.  The  fact  that  the  forged  bank  note 

Arizona.  — Pen.  Code  (1887),  g  745.  in  this  case  was  described  as  a  promis- 

California.  —  Pen.     Code    (1897),     §  sory  note  was  held  to  be  no  variance. 

475.  6.  Under  the  New  Jersey  statute,  an 

Colorado.  —  Mills'  Anno.  Stat.  (1891),  indictment  for  having  in  possession  an 

§  1261.  unfinished   counterfeit    note    must    al- 

Connecticut.  —  Gen.    Stat.    (1888),    §  lege   that   the  bank  was  incorporated. 

1578.  Stone  V.  State,  20  N.  J.  L.  401. 

856  Volume  5. 


6624.  COUNTERFEITING.  6625. 

"State  of  Rhode  Island.     The  Liberty  Bank  will  pay- 
Providence  Aug.  —  1854,  to  bearer  ten  dollars  on  demand. 
C.  R.  Droun,  Cashier.  D.  Evans,  Prest.'' 

unless  upon  said  promissory  note  there  is  a  date  of  the  day  in  the 
month  of  August.,  eighteen  hundred  and  fifty-four.,  which  is  to  said 
jurors  unknown;  tht  S2i\6.  Edward  James  then  and  there  knowing  the 
same  to  be  false,  forged  and  counterfeit,  with  intent  thereby  then 
and  there  to  injure  and  defraud  \{condusion  as  in  Form  No.  QQW)^  ^ 

c.  Foreign  Bank  Note. 

Form  No.  6624.* 

{Commencing  as  in  Form  No.  6591,  and  continuing  down  to  *)  unlaw- 
fully, feloniously  and  knowingly  did  have  in  his  possession  a  certain 
false,  forged  and  counterfeit  bank  note  in  the  likeness  and  similitude 
of  a  bank  note  issued  by  a  bank  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  duly  authorized  by  the  laws  of  said  United  Kingdom  of 
Great  Britain  and  Ireland,  to  wit,  the  Bank  of  England,  and  intended 
by  the  law  and  usage  of  said  United  Kingdom  of  Great  Britain  and 
Ireland  to  circulate  as  money,  the  tenor  of  which  said  false,  forged 
and  counterfeit  bank  note  is  as  follows,  that  is  to  say  {Here  set  out 
a  copy  of  the  note),  with  intent  of  him,  the  ssiid  John  Doe,  to  utter, 
pass  and  put  off  the  same  as  true,  he,  the  said  John  Doe,  then  and 
there  well  knowing  the  same  to  be  false,  forged  and  counterfeited, 
against  the  peace  {concluding  as  in  Form  No.  6691). 

V.  MAKING  INSTRUMENTS  FOR  COUNTERFEITING.^ 

1.  The  words  to  be  supplied  within         Kentucky.  —  Stat.  (1894),  §  1192. 

[]  will  not  be  found  in  the  reported  Maine.  —  Rev.    Stat.    (1883),    c.    121, 

case.  §  6. 

2.  United  States.  —  23  Stat,  at  Large,  Maryland.  —  Pub.  Gen.  Laws  (1888), 
c-  52,  §  5-  p.  471,  §  37. 

3.  Bequisites  of  Indictment  —  Gen-  Massachusetts.  —  Pub.  Stat.  (1882),  c. 
•nilly.  —  For  the  formal  parts  of  an  in-     204,  ^  17. 

dictment   in  a  particular    jurisdiction  Michigan.  —  How.  Anno.  Stat.  (1882), 

consult  the  title  Indictments.  §  9230. 

For  statutes  relating  to  the  offense  of  Missouri.  —  Rev.  Stat.  (1889),  g  3636. 

making  instruments  used  in  forging  or  Montana.  —  Pen.  Code  (1895),  §  850. 

counterfeiting  paper  money  or  coin  see  Nebraska. — Comp.  Stat.  (1897),  §  6813. 

as  follows:  Nevada.  —  Gen.  Stat.  (1885),  §  4644. 

Alabama.— Crirti.  Code  (1886),  §  3857.  New  Hampshire.  —  Pub.  Stat.  (1891), 

Arizona.— V^n.  Code  (1887),  §  750.  c.  274,  §§  6,  10. 

Arkansas.— %iiVi6..  Si.  H.   Dig.  (1894),  New' Mexico.— Qomi^.    Laws   (1884), 

§  1599-  §  788,  796. 

California.  —  Pen.  Code  {1897),  §  480.  North  Dakota.  —  Rev.    Codes   (1895), 

Colorado.  —  Mills' Anno.  Stat.  (1891),  §7420. 

§  "^-  Ohio.  —  Bates'   Anno.    Stat.    (1897), 

Connecticut.— Q,^n.  Stat.  (18S8),  §  1578.  §§  7099,  7103. 

Delaware.  —  Rev.  Stat.  (1893),  p.  949,  ''Oklahoma.  —  Stat.  (1893),  §  2346. 

^'  l?,^'.,         «  Oregon.  — YWWs  Anno.  Laws  (1892), 

Florida.- Kt:v.  Stat.  (1892),  §§  2496.  g§  1812,  1815. 

^97-  Pennsylvania.  —  Pepp.     &    L.      Dig. 

Idaho.— K^^.  Stat.  (1887),  §  7038.  (1894),  p.  1140,  §  104;  p.  1142,  g  108. 

Kansas.— G^n.  Stat.  (1889),  §§  2258,  Rhode  Island— Gen.  Laws  (1896),  c. 

22^°'  "81.  280,  §§  5,  10. 

856  Volume  5. 


6625. 


CO  UNTERFEI  TING. 


6626. 


Form  No.  6625.' 

{Commencing  as  in  Form  No.  6591,  and  continuing  down  to  *)  unlaw- 
fully and  feloniously,  and  without  authority  from  the  Secretary  of 
the  Treasury  of  the  United  States  or  other  proper  ofificer,  did  make 
(or  willingly  aid  and  assist  in  making  or  caused  and  procured  to  be  made) 
a  certain  die  (or  hub  or  mould)  of  steel  {or plaster  or  any  other  sub- 
stance), in  the  likeness  and  similitude,  as  to  the  design  and  inscrip- 
tion thereon,  of  a  die  (or  hub  or  mould)  designated  for  the  coining 
and  making  of  one  of  the  genuine  gold  coins  of  the  United  States, 
coined  at  the  mints  of  the  United  States,  to  wit,  an  eagle,  against  the 
peace  {concluding  as  in  Form  No.  6591). 

VI.  HAVING  INSTRUMENTS  IN  ONE'S  POSSESSION.^ 

1.  For  Counterfeiting'  Coin. 


a.  Generally. 


Tennessee.  —  Code  (1896),  §§  6605, 
6617,  6618. 

Texas.  —  Pen.  Code  (1895),  arts.  543, 
562. 

Utah.  —  Rev.  Stat.  (1898),  §  4353. 

Vermont. —  Stat.  (1894),  t^§  4982,  4985. 

Virginia.  —  Code  (1887),  |  3736. 

Washington.  —  Pen.  Code  (1897),  §  64. 

West  Virginia.  —  Code  (1891),  c.  146, 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §p  4456,  4461. 

Wyoming.  —  Rev.  Stat.  (1887),  §  932. 

United  States.  —  26  Stat,  at  Large,  p. 
742,  c.  127,  §§  I,  2;  Rev.  Stat.  (1878), 
^  5430. 

For  form  of  indictment  for  engraving 
a  plate  for  counterfeiting  a  foreign 
bank  note  see  U.  S.  v.  Arjona,  120  U. 

S.  479- 

Intent. —  There  must  be  an  allegation 
of  intent  when  required  by  the  statute. 
People  V.  D'Argencour,  32  Hun  (N.  Y.) 
178. 

1.  United  States.  —  26  Stat,  at  Large, 
p.  742.  c.  127,  §  I. 

2.  Seqnisites  of  Indictment  —  Gener- 
ally. —  For  the  formal  parts  of  an  in- 
dictment in  a  particular  jurisdiction 
consult  the  title  Indictments. 

For  statutes  relating  to  the  offense  of 
having  in  one's  possession  instruments 
used  in  forging  or  counterfeiting  paper 
money  or  coin  see  as  follows: 

Alabama.  —  Crim.     Code     (1886),    § 

3857. 

Arizona.  —  Pen.  Code  (1887),  §  750. 

Arkansas. — Sand.  &  H.  Dig.  (1894), 
§  1599- 


California.  —  Pen.  Code  (1897),  §  480, 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  1266. 

Connecticut.  —  Gen.     Stat.    (1888),    | 
1578. 

Delaware.  —  Rev.  Stat.  (1893),  p.  949, 
c.  129. 

Georgia.  — 3  Code  (1895),  §  241. 

Idaho.  —Rev.  Stat.  (1887),  §  7038. 

Illinois. — Starr   &    C.    Anno.     Stat. 
(1896),  p.  1288,  par.  230. 

Indiana.  —  Horner's    Stat.    (1896),    § 
2212. 

Iowa.  — Code  (1897),  §  4867. 

Kansas.  —  Gen.  Stat.  (1889),  §§  2258, 
2280,  2281. 

Kentucky.  — Stat.  (1894),  §  1192. 

Maine.  —  Rev.  Stat.  (1883),  c.  121,  §  6. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
204,  §j5  9,  17. 

Michigan.  —  How.  Anno.  Stat.  (1882), 
§§  9221,  9230. 

Minnesota.  — Stat.  (1894),  §  6692. 

Mississippi. — Anno.    Code   (1892),  § 
1103. 

Missouri.  —  Rev.  Stat.  (1889),  §  3636. 

Montana.  —  Pen.  Code  (1895),  §  850. 

Nebraska.  —  Comp.    Stat.    (1897),    ^§ 
6S13,  6815. 

Nevada.  —  Gen.  Stat.  (1885),  §4644. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  274,  §§  6,  10. 

New  jersey, — Gen.    Stat.    (1895),    p. 
1081,  §  178. 

New  Mexico.  —  Comp.   Laws  (1884), 
§§  788,  796. 

New  York.  —  Pen.  Code,  §  511. 

North  Dakota.  —  Rev.   Codes  (1895) 
§  7420. 


857 


Volume  5. 


6626. 


CO  UNTERFEITING. 


6626. 


Ohio.  —  Bates'  Anno.  Stat.  (1897),  §^ 
7099,  7103. 

Oklahoma.  —  Stat.  (1893),  §  2346. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§§  1812,  1815. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1 140,  §  104;  p.  I142,  §  108. 

Rhode  Island.— Gen.  Laws  (1896),  c. 
280,  §§  5,   10. 

Tennessee.  — Code  (1896),  §  6606. 

7V.r<w.  — Pen.  Code  (1895),  arts.  543, 

562. 

Utah.  —  Kav.  Stat.  (1898),  §  4353. 
FifrOT^wA  —Stat. (1894),  §g  4982,  4985. 
Virginia.— Code^  (1887),  §  3736. 
Washington.  —  Pen.  Code  (1891),  i^  64. 
West  Virginia.  —  Code  (1891),  c.  146, 

§4. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 

(1889),  §§4456,  4461. 

Wyoming.  —  Rev.   Stat.  (1887),  §  932. 

United  States.  —  26  Stat,  at  Large,  p. 
742,  c.  127,  g  i;  Rev.  Stat.  (1878),  § 
5430. 

For  other  forms  of  indictments  see 
State  V.  Collins,  3  Hawks  (10  N.  Car.) 
191;  Sutton  V.  State,  9  Ohio  133;  Long 
V.  State,  10  Tex.  App.  194. 

Defendant  not  Employed  in  Mint.  —  The 
indictment  need  not  allege  that  the  de- 
fendant was  not  employed  in  the  mint 
of  the  United  States.  Harlan  v.  People, 
I  Dougl.  (Mich.)  207. 

Description  of  Instrument.  —  The  in- 
dictment must  describe  by  name  or 
otherwise  the  instrument  which  the  de- 
fendant had  in  his  possession.  Cham- 
berlain V.  State,  5  Blackf.  (Ind.)  573; 
Peoples  V.  State,  6  Blackf.  (Ind.)  95. 

Under  the  Tennessee  statutes,  it  is  not 
necessary  to  give  in  the  indictment  a 
particular  description  of  the  machine 
or  instrument  the  defendant  had  in  his 
possession,  as  by  setting  forth  particu- 
larly the  description  of  the  coin  it  was 
designed  to  counterfeit,  and  an  indict- 
ment charging  that  the  defendant  did 
feloniously  and  fraudulently,  and  with- 
out any  lawful  excuse,  keep  in  his 
possession  a  machine,  which  said  ma- 
chine was  then  and  there  intended  by 
the  said  defendant  for  the  purpose  of 
forging  and  counterfeiting  the  coin  cur- 
rent by  law  and  usage  in  the  state  of 
Tennessee  and  the  United  States,  is 
sufficient.  Bradford  v.  State,  3  Humph. 
(Tenn.)  370. 

See  insufficient  description  in  Bell  v. 
State,  10  Ark.  536;  Peoples  v.  State,  6 
Blackf.  (Ind.)  95. 

Intent  to  Use.  —  It  is  unnecessary  to 


allege  an  intent  to  use  the  instrument 
for  counterfeiting,  as  such  does  not 
constitute  an  ingredient  of  the  offense. 
People  V.  White,  34  Cal.  183;  Sasser  v. 
State,  13  Ohio  453. 

Allegation  of  Currency  of  Coin.  —  An 
indictment  alleging  that  the  defendants 
"  feloniously  and  unlawfully,  did  have 
in  their  possession  a  certain  tool,  or 
other  instrument,  called  a  crucible, 
made  of  hard  substance  and  material 
to  the  jurors  aforesaid  unknown;  said 
crucible  then  and  there  being  con- 
structed and  contrived  for  the  purpose 
of  melting,  mixing,  roasting,  debasing, 
altering  and  counterfeiting  other  base 
metals,  to  wit,  copper  and  zinc  and  tin, 
to  the  imitation  and  likeness  of  good, 
legal  and  pure  silver;  they,  the  said  Za- 
dock  and  Baxter,  then  and  there  having 
the  said  crucible  in  their  possession, 
for  the  purpose  of  forging,  alter- 
ing and  counterfeiting  the  current  sil- 
ver coin  of  this  state  and  of  the  United 
States,  called  half -do  liars;  aiXiA  then  and 
there  intending  to  employ  and  use  the 
said  crucible  in  and  about  the  forming 
and  altering  and  counterfeiting  the 
said  silver  coin,  called  half-dollars; 
which  forged,  altered  and  counterfeited 
and  base  coin,  so  intended  then  and 
there  to  be  forged,  altered  and  counter- 
feited  by  them  the  said  Baxter  and 
Zadock,  would  then  and  there  be  of  the 
similitude  and  likeness  of  the  good  cur- 
rent and  legal  silver  coin  coined  at  the 
United  States  mint,  and  the  current  coin 
of  this  state  and  of  the  United  States, 
called  half-dollars,  contrary,"  etc.,  was 
held  insufficient,  the  words  "  were 
current  silver  coins  of  this  state  and  of 
the  United  States"  in  the  indictment 
not  being  equivalent  to  the  statutory 
language,  "which  shall  be  made  cur- 
rent by  the  laws  of  this  or  the  United 
States."      State     v.     Bowman,    6     Vt. 

594- 

Incorporation  of  Bank.  —  In  an  indict- 
ment for  having  in  possession  instru- 
ments for  counterfeiting  bank  notes  it 
is  not  necessary  to  allege  the  incorpora- 
tion of  the  bank,  the  fact  of  its  incor- 
poration not  being  an  element  of  the 
crime.  People  v.  McDonnell,  80  Cal. 
285. 

Scienter.  —  Under  the  Ohio  statute 
(Bates'  Anno.  Stat.  (1897),  §  7099),  an 
averment  that  the  defendant  secretly 
kept  instruments  for  counterfeiting 
coin  sufficiently  shows  a  scienter.  Sut- 
ton V.  State,  9  Ohio  133. 


858 


Volume  5. 


6626.  COUNTERFEITING.  6627. 

Form  No.  6626. 

(Precedent  in  People  v.  White,  34  Cal.  183.)' 

[In  the  County  Court  for  the  county  Sonoma,  state  of  California, 
the  sixth  day  oi  June,  a.  d.  \Z66. 
The  People  of  the  State  of  California  ) 

against  >•  Indictment. 

William  White.  ) 

William  White  is  accused  by  the  grand  jury  of  the  county  of  So- 
noma, state  of  California,  by  this  indictment,  of  the  crime  of  know- 
ingly having  in  his  possession  instruments  used  in  counterfeiting 
United  States  gold  coin,  committed  as  follows :]2 

The  said  William  White,  on  th.&  fourteenth  day  of  February,  a.  d. 
i?>66,  at  the  county  of  Sonoma,  did  knowingly  procure  and  have  in 
his  possession  a  certain  mould,  pattern,  die,  puncheon,  tool,  instru- 
ment, and  apparatus,  made  of  wood  and  iron,  made  use  of  in 
counterfeiting  the  gold  and  silver  coin  of  the  United  States,  now 
made  current  in  this  state,  to  wit:  a  gold  coin  called  a  dotible  eagle, 
of  the  value  of  twenty  dollars,  and  a  silver  coin  called  a  half  dollar, 
contrary  to  the  form  of  the  statute  [in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  people  of  the  state 
of  California. 

J.  G.  McCullough,  District  Attorney,  j^ 

b.  Foreign  Coin. 

Form  No.  6627. 

(Precedent  in  Miller  v.  People,  3  111.  234.)* 

State  of  Illinois,  Cook  County,  ss. 

The  grand  jurors  chosen,   selected,  and  sworn,   in  and  for  the 

1.  The  defendant  demurred  to  this  offense  to  have  been  committed  feloni- 
indictment  on  the  ground  that  the  ously.  2.  That  the  facts  were  not 
facts  stated  in  the  indictment  did  not  properly  charged.  3.  That,  in  the  first 
constitute  a  public  offense,  and  on  the  count,  the  offense  was  not  charged  in 
further  ground  that  the  indictment  did  tlje  language  of  the  code,  nor  in  the 
not  state  that  defendant  had  the  in-  language  of  the  common  law.  4.  That, 
struments  in  his  possession  for  the  pur-  in  the  second  count,  the  offense  in- 
pose  or  with  the  intent  to  use  the  same  tended  to  be  charged  is  not  sufficiently 
in  counterfeiting  the  coin  of  the  United  set  out  either  under  the  statute  or  at 
States,  or  defrauding  any  person  or  common  law.  5.  That  the  second  count 
body  politic  or  corporate,  but  the  de-  failed  to  state  in  what  county  the 
murrer  was  overruled  and  the  judg-  offense  charged  was  committed,  nor 
ment  affirmed  on  appeal.  upon    what   authority   the   indictment 

See  Cal.  Pen.  Code  (1897),  §  480,  and  was   found.      6.  That   the    indictment 

list    of    statutes   cited   supra,    note   2,  was  uncertain,    imperfect  and   insuffi- 

p.  857.  cient    in    other   respects.      7.  That    it 

2.  The  words  and  figures  enclosed  did  not  state  with  sufficient  precision 
by  [  ]  will  not  be  found  in  the  reported  or  certainty  any  offense,  either  under 
case,  but  have  been  added  to  render  the  statute  or  at  common  law.  The 
the  form  complete.  judgment  of  the  lower  court,  overrul- 

3.  This  indictment  was  attacked  for  ing  a  motion  in  arrest  of  judgment 
the  following  reasons:  i.  That  it  was  founded  upon  the  above  objections, 
insufficient  in  that  it  did  not  charge  the  was  affirmed. 

859  Volume  5. 


6627.  COUNTERFEITING.  6627. 

county  of  Cook.,  in  the  name  and  by  the  authority  of  the  people  of 
the  state  of  Illinois^  upon  their  oaths  present,  \.\vaX  John  B.  Miller, 
late  of  said  county,  on  the  first  day  of  December.,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  thirty-seven,  in  the  county 
aforesaid,  one  press  for  coinage,  made  of  iron,  otherwise  called  a 
"bogus  press";  one  edging  tool,  made  of  iron  and  steel,  adapted  and 
intended  for  the  working  of  coin  around  the  edges,  with  grainings, 
apparently  resembling  those  on  the  edges  of  coin  then  and  now  cur- 
rent in  the  state  aforesaid,  to  wit,  Mexican  dollars;  one  die,  made  of 
steel,  in  and  upon  which  then  and  there  were  made  and  impressed 
the  figure,  resemblance  and  similitude  of  one  of  the  sides,  to  wit,  the 
eagle  side  of  the  coin  then  and  now  current  within  the  state  afore- 
said, to  wit,  a  Mexican  dollar;  one  other  die,  made  of  steel,  in  and 
upon  which  then  and  there  were  made  and  impressed  the  figure, 
resemblance  and  similitude,  to  wit,  the  reverse  of  the  eagle  side  of 
the  coin  and  now  current  within  the  state  of  Illinois,  called  a  Mexican 
dollar;  two  crucibles  made  of  clay  and  sand,  made  use  of  in  counter- 
feiting the  coin  then  and  now  current  within  the  state  aforesaid,  to 
"vi'xX.,  Mexican  dollars,  without  lawful  excuse;  —  then  and  there  know- 
ingly, [unlawfully  and  feloniously]^  had  in  his  possession,  contrary 
to  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  same  people  of  the  state  of 
Illinois. 

And  the  same  grand  jurors,  chosen,  selected,  and  sworn,  in  and  for 
the  county  aforesaid,  in  the  name  and  by  the  authority  aforesaid, 
upon  their  oaths  aforesaid,  do  further  present,  that  John  B.  Miller,  late 
of  said  county,  on  the  first  day  oi  December,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  thirty-seven,  in  the  county  aforesaid, 
one  press  for  coinage,  made  of  iron ;  one  edging  tool  made  of  iron 
and  steel,  adapted  and  intended  for  the  working  of  coin  round  the 
edges,  with  grainings,  apparently  resembling  those  on  the  edges  of 
coin  then  and  now  current  within  the  state  aforesaid,  to  wit,  Mexican 
dollars;  one  die,  made  of  steel,  in  and  upon  which  then  and  there  were 
made  and  impressed  the  figure,  resemblance  and  similitude  of  one 
of  the  sides,  to  wit,  the  eagle  side  of  coin  then  and  now  current 
within  the  state  aforesaid,  to  wit,  Mexican  dollars;  one  other  die, 
made  of  steel,  in  and  upon  which  then  and  there  were  made  and  im- 
pressed the  figure,  resemblance  and  similitude  of  one  of  the  sides, 
to  wit,  the  reverse  of  the  eagle  side  of  coin  then  and  now  current 
within  the  state  of  Illinois,  called  Mexican  dollars;  two  crucibles, 
made  of  sand  and  clay,  made  use  of  in  counterfeiting  the  coin  then 
and  now  current  within  the  state  aforesaid,  called  Mexican  dollars, 
then  and  there  knowingly,  unlawfully  [and  feloniously]^  had  in  his 
custody  and  possession,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
same  people  of  the  state  of  Illinois. 

A.  Huntington,  State's  Attorney. 

1.  The  words  enclosed  by  [  ]  are  not  ever,  because  necessary  under  the 
found  in  the  reported  case  and  the  in-  present  statute,  which  makes  the  offense 
dictment  was  held  sufficient  without  a  felony.  See  Starr  &  C.  Anno.  Stat. 
Ihem.     They   have  been  added,  how-     111.  (1896),  p.  1288,  par.  230. 

860  Volume  5. 


6628.  COUNTERFEITING.  6629. 

c.  One  Side  Only. 

Form  No.  6628. 
(Precedent  in  Com.  v.  Kent,  6  Met.  (Mass.)  221.)' 
[(Commeruing  as  in  Form  No.  6619,  and  continuing  down  to  *)]2  did 
knowingly  have  in  his  possession  a  certain  mould,  pattern,  die,  punch- 
eon, tool  and  instrument,  adapted  and  designed  for  coining  and 
making  one  side  of  a  counterfeit  coin  in  the  similitude  of  one  side  or 
half  part  of  a  certain  siher  coin,  called  a  half  dollar,  to  wit,  that  side 
or  half  part  thereof  which  represents  a  spread  eagle,  and  has  the 
words  "  United  States  of  America,"  "half  dollar;  "  said  coin,  called 
a  half  dollar,  being  current  by  law  and  usage  in  this  State  and  Com- 
monwealth aforesaid,  with  intent  to  use  and  employ  the  same  mould, 
pattern,  die,  puncheon,  tool  and  instrument,  and  cause  and  permit 
the  same  to  be  used  and  employed,  in  coining  and  making  such  false 
and  counterfeit  coin  as  aforesaid,  \{concluding  as  in  Form  No.  6619).^^ 

2.  For  Counterfeiting  Gold  Dust. 

Form  No.  6629. 

(Precedent  in  People  v.  Page,  i  Idaho  102.)^ 

[The  Territory  of  Idaho  \  In  the  District  Court  of  the Judicial 

against  >■      District,  in  the  County  of  Ada,  February 

JohnC.  Page.  )      Term,  a.  d.  i867. 

John  C.  Page  is  accused  by  the  grand  jury  of  the  county  of  Ada  of 
the  crime  of  having  and  secretly  keeping  in  his  possession  instru- 
ments for  the  counterfeiting  of  gold  dust,*  committed  as  follows:]^ 

The  said  John  C.  Page  on  the  fifteenth  day  of  November,  1866,  at  the 
county  of  Ada,  did  knowingly  an^  wilfully  have  in  his  possession  and 
secretly  did  keep  one  furnace,  three  bottles  acid,  one  mortar  and 
pestle,  two  sieves,  one  pair  tongs,  one  gold  pan,  one  large  file,  one 
frying  pan,  one  lot  buckshot,  one  sack  of  spelter,  one  sack  of  sand, 
two  crucibles,  six  iron  bars,  the  same  then  and  there  being  instru- 
ments for  the  purpose  of  counterfeiting  uncoined  gold,  gold  lumps 
and  pieces  commonly  called  gold  dust,  then  and  there  currently  pass- 
ing in  the  territory  oi  Idaho,  [with  intent  to  use  the  said  instruments 
for  the  said  purpose  of  counterfeiting  uncoined  gold,  gold  lumps  and 
pieces  commonly  called  gold  dust,]^  contrary  [to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  territory  oi Idaho.\^ 

1.  This  indictment  was  held  to  suflS-  and  secretly  keeping  instruments  for 
ciently  charge  an  offense.  the  counterfeiting  of  gold  dust,"  is  a 

2.  The  matter  to  be  supplied  within  gross  error.  People  v.  Page,  i  Idaho 
[  ]  will  not  be  found  in  the  reported  102. 

case.  5.  The  words  and  figures  enclosed  by 

3.  Idaho.  —  Rev.  Stat.  (1887),  §7038.  []  will  not  be  found  in  the  reported 
Similar  statutes  exist  as  follows:  case,  but  have  been  added  to  render  the 
Arizona.  —  Pen.  Code  (1887),  §  750.  form  complete. 

California.  —  Pen.  Code  (1897^,  §  480.  6.  The  precedent  does    not   contain 

Nevada.  —  Gen.  Stat.  (1885),  $4648.  this  allegation,  and  the  indictment  was 

Montana.  —  Pen.  Code    (1895),!  847.  held   insufficient   because   it   failed    to 

4.  Charging  that  the  defendant  is  allege  that  the  instruments  were  had  by 
guilty  of  a  "  felony,"  instead  of  nam-  the  defendant  for  the  purpose  of  conn- 
ing the  real  offense,  that  of  "having  terfeiting.    People  z/.  Page,  i  Idaho  102. 

861  Volume  5. 


COUNTY  COMMISSIONERS. 

See  the  GENERAL  INDEX  to  this  work. 


COUPONS. 


See  the  titles  BILLS  AND  NOTES,  vol.  3,  p.  260;  BONDS  AND 
UNDERTAKINGS  {ACTIONS  ON),  vol.  3,  p.  528. 


COVENANT.^ 

I.  In  ENGLAND,  862. 

1,  At  Common  Law,  862. 

2.  Under  Hilary  Rules,  864, 
II.  IN  THE  UNITED  STATES,  864. 

CROSS-REFERENCES. 

For  Forms  of  Declarations  in  Actions  for  Breach  of  Particular  Cove- 
nants, see  the  title  COVENANTS. 

For  Forms  of  Fleas  in  Actions  of  Covenant,  see  the  various  special  titles 
in  this  work. 

See  also  the  GENERAL  INDEX  to  this  work. 

For  matters  of  Procedure,  see  the  title  CO  VENANTS,  5  Encyclo- 
PiEDiA  OF  Pleading  and  Practice,  p.  342. 

I.  IN  ENGLAND. 
1.  At  Common  Law.* 

Form  No.  6630. 

(2  Chit.  PI.  241.) 

Markham  and  Le  Blanc. 

Wednesday  next  after  fifteen  days  of  the  Holy 
Trinity,  in  Trinity  Term,  51   Geo.  III. 

Middlesex,  to  wit.    John  Doe  complains  of  Richard  Roe  being  in 

1.  This  title  is  intended  to  comprise        2.  The  form  of  common-law  declara- 

only  forms   pertaining  strictly   to  the  tion  given  in  the  text  was  that  used  in 

common-law  form  of  action,  known  as  a    declaration    by   bill    in    the   king's 

the  action  of  covenant.     For  forms  in  bench.     For  the  formal  parts  of  decla- 

actions  for  breaches  of  particular  cove-  rations   in   other   courts,    and   by  and 

nants    see   the   title   Covenants,  post,  against  particular  persons,  consult  the 

P-  868.  title  Declarations. 

862  Volume  5. 


6630. 


COVENANT. 


6630. 


the  custody  of  the  marshal  of  the  Marshalsea  of  our  lord  the  now 
king,  before  the  king  himself,  of  a  plea  of  breach  of  covenant.  For 
that  whereas,  heretofore,  to  wit,  on  the  twenty-fifth  day  of  October^ 
A.  D.  \Z10^  at  Westminster^  in  the  county  of  Middlesex  aforesaid,  by 
a  certain  indenture  then  and  there  made  between  the  said  John  Doe 
of  the  one  part,  and  the  said  Richard  Roe  of  the  other  part,^  the 
counterpart^  of  which  said  indenture,  sealed  with  the  seal^  of  the 
sz\6.  Richard  Roe  \.)\^  sdiid  John  Doe  novi  brings  here  into  court,  the 
date  whereof  is  the  day  and  year  aforesaid,  the  said  John  Doe  did 
(^Here  set  out  the  substance  of  the  covenant  in  the  words  to  be  found  in 
the  appropriate  form  tender  the  particular  title).^  As  by  the  said 
indenture,  reference  being  thereunto  had,  will  (amongst  other  things) 
more  fully  and  at  large  appear.*     And  although  the  sdi\<\  John  Doe 


1.  Date.  —  A  deed  may  be  stated  in 
pleading  to  have  been  made  on  a  day 
different  from  its  date,  omitting  the 
words  "bearing  date,"  etc.  Hall  v. 
Cazenove,  4  East  477.  But  it  is  most 
usual  to  insert  the  date.  2  Chit.  PI. 
241,  note  d. 

2.  Addition  of  Parties. —  It  is  not  neces- 
sary or  advisable  to  state  the  addition 
of  the  parties.    2  Chit.  PI.  241,  note/. 

3.  Profert  —  Generally.  —  A  profert,  or 
an  excuse  for  the  want  of  it,  must  in 
general  be  stated  or  the  declaration 
will  be  bad  on  special  demurrer.  Stat. 
4  Ann.,  c.  16;  Read  v.  Brookman,  3  T. 
R.  151.  And  where  profert  is  stated, 
and  the  deed  cannot  be  produced,  the 
plaintiff  will  be  nonsuited  on  the  plea 
oi  non  est  factum .  Smith  z'.  Woodward, 
4  East  585.  As  to  proferts  in  general, 
see  I  Chit.  PI.  349  ^^j^^.;  i  Saund.  9, 
note  I. 

Both  Parts  Originals.  —  If  both  parts 
of  the  deed  be  originals,  that  is,  signed 
by  all  the  contracting  parties,  profert 
should  be  made  in  the  following  words, 
to  wit,  "  one  part  of  which  said  inden- 
ture," etc.     2  Chit.  PI.  241,  note^. 

4.  Seal.  —  The  declaration  must  state 
that  the  contract  was  under  seal.  2  Ld. 
Raym.  1336,  1536. 

5.  Covenant,  How  Set  Out.  —  The  words 
of  the  covenant  are  in  general  to  be  set 
out  verbatim.  2  Chit.  PI.  242,  note  k\ 
I  Saund.  PI.  392.  But  no  unnecessary 
covenant  or  other  irrelevant  parts  of 
the  deed  should  be  stated,  i  Saund. 
233,  note  2;  2  Saund.  366,  note  i. 
For  the  statement  of  any  superftwous 
matter  will  be  censured  by  the  court. 
Dundass  v.  Weymouth,  2  Cowp.  665; 
Price  z/.  Fletcher,  2  Cowp.  727;  Bristow 
V.  Wright,  2  Dougl.  665;  i  Saund.  PI. 
393- 

Thus  in  an  action  on  a  lease,  if  the 
description  of    the    premises   be   very 


long,  say,  "  certain  tenements,  with  the 
appurtenances  particularly  mentioned 
and  described  in  the  said  indenture, 
situate,"  etc.,  and  in  order  to  avoid 
variance  it  is  advisable  not  to  state  the 
abuttals,  or  any  other  very  particular 
description,  i  Saund.  233,  note  2;  2 
Saund.  366,  note  i;  Pitt  v.  Green,  9  East 
188.  If,  however,  personal  property 
have  been  demised,  together  with  land, 
etc.,  the  above  concise  statement  will 
not  suffice;  and  when  the  action  is  for 
not  repairing  buildings,  ditches,  etc.,  it 
is  most  usual  to  state  all  such  premises. 
2  Chit.  PI.  242,  note  i. 

And  any  exception,  or  condition,  or 
matter  qualifying  the  covenant  should 
be  stated,  or  an  omission  would  be 
fatal  on  non  est  factum.  Howell  v. 
Richards,  11  East  633.  But  there  is  a 
distinction  between  a  proviso  and  an 
exception.  A  proviso  is  properly  the 
statement  of  something  extrinsic  of  the 
subject  matter  of  the  covenant  which 
shall  go  in  discharge  of  that  covenant 
by  way  of  defeasance.  An  exception 
is  the  taking  out  of  the  covenant  some 
part  of  the  subject  matter  thereof.  A 
plaintiff  need,  therefore,  never  state  a 
proviso.     I  Saund.  PI.  393. 

Consideration.  —  No  consideration  need 
be  stated  unless  a  covenant  operating 
under  the  statute  of  uses   be  pleaded. 

1  Saund.  PI.  392.  And  the  averment 
that  the  defendant  "  for  the  considera- 
tions in  the  indenture  mentioned,"  etc., 
is  sufficient.  Homer  z*.  Ashford,  3  Bing. 
322,  II  E.  C.  L.  121.  Where  the  plain- 
tiff states  any  part  of  the  consideration, 
he  must  state  the  whole,  and  failure  to 
do  so  is  a  fatal  variance.  Swallow  v. 
Beaumont,  i  Chit.   Rep.  518,  18  E.  C. 

L.  153- 

6.  Reference  to  Indenture,  —  The  refer- 
ence to  the  indenture  is  not  necessary. 

2  Chit.  PI.  243,  note  m. 


863 


Volume  5. 


6631.  COVENANT.  6631. 

hath  always,  from  the  time  of  making  the  said  indenture,  hitherto 
well  and  truly  performed,  fulfilled,  and  kept  all  things  in  the  said 
indenture  contained  on  his  part  and  behalf,  to  be  performed,  fulfilled, 
and  kept,  according  to  the  tenor  and  effect,  true  intent  and  meaning 
of  the  said  indenture,  to  wit,  at  Westminster  aforesaid.  ^  Yet  protest- 
ing that  the  said  Richard  Roe  hath  not  performed,  fulfilled,  or  kept 
anything  in  the  said  indenture  contained  on  his  part  and  behalf,  to 
be  performed,  fulfilled,  and  kept,  according  to  the  tenor  and  effect, 
true  intent  and  meaning  thereof,^  the  said  John  Doe  saith,  that  after 
the  making  of  the  said  indenture  {Here  set  out  the  particular  breach  or 
breaches  complained  of^^  contrary  to  the  tenor  and  effect,  true  intent 
and  meaning  of  the  said  indenture,  and  of  the  said  covenant  of  the 
sd\d  Richard  Roe  by  him  in  that  behalf,  so  made  as  aforesaid,  to  wit, 
at  Westminster  aforesaid.  And  so  the  said  John  Doe  in  fact  saith,* 
that  the  said  Richard  Roe^  although  often  requested  so  to  do,  hath 
not  kept  the  said  covenant  so  by  him  made  as  aforesaid,  but  hath 
broken  the  same,  and  to  keep  the  same  with  the  said  John  Doe 
hath  hitherto  wholly  neglected  and  refused,  and  still  doth  neglect 
and  refuse,  to  the  damage  of  the  said  John  Doe  of  j£20y^  and  there- 
fore he  brings  his  suit,  etc. 

(     John  Den 
Pledges  to  prosecute  •<  and 


(  Richard  Fenn. 


2.  Under  Hilary  Rules. 


Form  No.  6631. 

(Petersd.  Prec.  7,  147.) 

In  the  King's  Bench. 

Tenth  day  of  March,  iS34. 

Middlesex.  John  Doe,  by  Jeremiah  Mason,  his  attorney  (or  in  his 
07vn  person^,  complains  of  Richard  Roe,  who  has  been  summoned  to 
answer  the  plaintiff  in  an  action  of  covenant.  For  that  whereas 
heretofore,  to  wit,  on  the  first  day  of  May,  in  the  year  x2,33,^  by  a 
certain  indenture  then  made  between  the  plaintiff  of  the  one  part, 

1.  Performance  by  Plaintiff.  —  This  according  to  the  legal  effect,  i  Saund. 
general  averment  of  performance  by  235,  note  6.  As  to  the  averments,  and 
the  plaintiff  is  unnecessary,  i  Saund.  the  statement  of  the  breach  in  general, 
235,   note    5;   2  Chit.    PI.   243,   note   0.  see  i  Chit.  PI.  336  ^^  j-^^. 

But  if  there  be  a  condition  precedent,  4.  This  statement  is  unnecessary,  for 

performance  must  be  specially  shown,  there  being  a  breach  of  covenant  al- 

2  Chit.  PI.  243,  note  o\  i  Saund.  PI.  393.  leged  before,  it  is  holden  unnecessary 

2.  Protestation.  —  There  is  no  occa-  to  make  a  repetition  of  it  in  the  conclu- 
sion for  this  protestation  or  allegation  sion.     i  Saund.  235,  note  7. 

of  the  general  nonperformance  of  cove-  6.  Damages.  —  In  all   declarations  in 

nants  by  the  defendant;  the  declaration  covenant,    a   sum   should   be   inserted 

may  proceed  at  once  to  the   material  sufficient  to  cover  the  real  demand  and 

averments  and  the  particular  breach  for  interest  to  the  time  final  of  judgment, 

which  the  action  is  brought.    2  Chit.  PI.  2  Chit.  PI.  244,  note  /  ;  i  Saund.  PI.  393. 

243,  note/.  6.  Date. —  The   date  when   the  cove- 

3.  Statement  of  Breach.  —  The  breach  nant  purports  to  have  been  made,  or 
maybe  in  the  negative  of  the  covenant  actually  was  made,  should  in  general 
generally.  Harris  v.  Mantle,  3  T.  R,  be  stated.  Petersd.  Prec.  4,  note  2. 
307;   Procter  v.  Burdet,  3  Mod.  69.     Or  But  see  jw/ra,  note  i,  p.  863. 

864  Volume  5. 


6632.  COVENANT.  6632. 

and  the  defendant  of  the  other  part,  the  counterpart^  of  which  said 
indenture,  sealed  with  the  seal^  of  the  defendant,  the  plaintiff  now 
brings  here  into  Court,-  the  date  whereof  is  the  day  and  year  afore- 
said, the  plaintiff  {Here  set  out  the  substance  of  the  covenant  in  the 
words  to  be  found  i?i  the  appropriate  form  in  the  particular  title),^  and 
although  the  plaintiff  has  always  from  the  time  of  jmaking  the  said 
indenture  hitherto  well  and  truly  performed,  fulfilled,  and  ,kept  all 
things  in  the  said  indenture  contained  on  his  part  and  behalf  to  be 
performed,  fulfilled,  and  kept  according  to  the  tenor  and  effect,  true 
intent,  and  meaning  of  the  said  indenture;*  Yet  protesting^  that  the 
defendant  has  not  performed,  fulfilled,  or  kept  anything  in  the  said 
indenture  contained  on  his  part  and  behalf  to  be  performed,  fulfilled, 
and  kept,  according  to  the  tenor  an^  effect,  true  intent  and  meaning 
thereof;  And  the  plaintiff  says,  that,  after  the  making  the  said 
indenture,  (^Here  set  out  the  partictilar  breach  or  breaches  complained 
of),^  contrary  to  the  tenor  and  effect,  true  intent,  and  meaning  of 
the  said  indenture,  and  of  the  said  covenant  of  the  defendant  by  him 
in  that  behalf  so  made  as  aforesaid;  And  the  plaintiff  in  fact  says, 
that  the  defendant,  although  often  requested  so  to  do,  has  not  kept 
the  said  covenant  so  by  him  made  as  aforesaid,  but  has  broken  the 
same,  and  to  keep  the  same  with  the  plaintiff  has  hitherto  wholly 
neglected  and  refused,  and  still  does  neglect  and  refuse.  To  the 
damage  of  the  plaintiff  of  £,20-^   and  therefore  he  brings  his  suit,  etc. 

II.  IN  THE  UNITED  STATES.^ 

Form  No.  6632. 

State  of  West  Virginia,  )  ^^^    j^  ^^^  ^.^^^.^  ^^^^^  ^^ 
County  of  Preston.  \ 

John  Doe  complains  of  Richard  Roe  of  a  plea  of  covenant  broken;^ 
for  this,  to  wit,  that  heretofore,  to  wit,  on  t\vQ  first  day  of  June,  iS97, 
by  a  certain  indenture  made  between  the  said  defendant  of  the  first 
part  and  the  said  plaintiff  of  the  second  part,^°  which  said  indenture, 
sealed^^  with  the  seal  of  the  said  defendant,  is  to  the  court  now  here 

1.  Profert. —  See  supra,  note  3,  p,  W^ifj^  FiV^zWa  the  words  "  plea  of  cove- 
863.  nant  broken"  are  used.     In  the  other 

2.  Seal.  —  The  declaration  must  state  common-law  states  it  is  customary 
that  the  contract  was  under  seal.  2  Ld.  to  use  the  words  "plea  of  breach  of 
Raym.  1336,  1536.  covenant." 

3.  Coveoant,  How  Set  Out.  —  See  supra,  10.  With  Whom  Covenant  was  Made.  — 
note  5,  p.  863.  It   must    appear,    in    the    declaration, 

4.  Performance  by  Plaintiff.  —  See  with  whom  the  covenant  was  made. 
supra,  note  i,  p.  864.                              «  Keatly    v.    McLaugherty,    4    Mo.    221; 

6.  Protestation.  —  See  supra,  note  2,  Perkins  v.  Reeds,  8  Mo.  33. 

p.  864.  11.  Seal. — The  declaration  must  show 

6.  Statement  of  Breach.  —  See  supra,  that  the  instrument  upon  which  the  ac- 
note  3,  p  864.  tion  is  founded  is  a  sealed  instrument. 

7.  Damages.  —  See  supra,  note  5,  Wineman  v.  Hughson,  44  111.  App.  22; 
p.  864.  Manning  v.  Perking,  86  Me.  419;  Pier- 

8.  For  the  formal  parts  of  a  declara-  son  v.  Pierson,  6  N.  J.  L.  168;  Bilder- 
tion  in  any  common-law  state  consult  back  v.  Pouner,  7  N.  J.  L.  64.  And  it  is 
the  title  Declarations.  not  sufficient  to  allege  that  the  parties 

9.  In  New  Hampshire,  Virginia  and  made  their  covenant,  the  word  "  cove- 

5  E.  of  F.  P.  —  55.  865  Volume  5. 


6632. 


COVENANT. 


6632. 


shown,^  the  date  whereof  is  the  day  and  year  aforesaid,  the  said 
defendant,  for  a  certain  valuable  consideration  therein  mentioned,^ 
did  (Jlere  set  out  the  substance  of  the  covenant  in  the  words  to  be  found  in 
the  appropriate  form  in  the  particular  title')?  as  from  the  said  deed, 
reference  being  had  thereto,  will  appear.  And  the  said  plaintiff  in 
fact  saith  that,  from  the  time  of  the  execution  of  said  deed,  he  hath 
at  all  times  kept  and  performed  all  and  singular  the  covenants  on 
his  part  to  be  kept  and  performed,  according  to  the  tenor  and  effect, 
true  intent  and  meaning  of  the  said  deed;*  yet  the  said  defendant, 
since  the  making  of  said  deed,  has  not  performed  and  kept  said  cove- 
nants in  the  said  deed  contained,  to  be  on  his  part  kept  and  per- 
formed, as  by  the  said  deed  is  of  him  required,  and  particularly  in 
this,  that  (Jlere  set  out  the  particular  breach  or  breaches  complained  of  ).^ 


nant"  not  importing  a  sealed  instru- 
ment. Hays  V.  Lasater,  3  Ark.  565. 
Nor  does  the  declaration  sufficiently 
show  that  the  parties  to  the  covenant 
sealed  it,  although  it  is  set  out  in  hcec 
verba  and  contains  the  words  "  witness 
our  hands  and  seals."  Hays  v.  Lasa- 
ter, 3  Ark.  565.  But  where,  in  describ- 
ing the  instrument,  words  of  art,  such 
as  deed,  indenture,  etc.,  are  used,  such 
words  import  the  seal.  Wineman  v. 
Hughson,  44  111.  App.  22. 

The  declaration  should  show  that 
the  agreement  on  which  the  action  is 
founded  was  originally  sealed  by  the 
defendant,  and  remained  under  seal  at 
the  time  of  declaring,  or  accounting  for 
the  omission  of  such  averment.  It  is 
not  sufficient  to  say  "And  for  the  faith- 
ful performance  of  the  said  covenant 
and  agreement  the  said  parties  did 
thereunto  set  their  hands  and  affix  their 
seals."  Smith  z/.  Emery,  12  N.  J.  L.  53. 

See  also  supra,  note  4,  p.  863. 

1.  Profert.  —  In  an  action  of  covenant, 
the  declaration  should  contain  a  profert 
in  curia  of  the  agreement  set  forth  or 
an  excuse  for  the  omission  of  it.  And 
the  words  of  reference  "as  by  the  said 
covenant  and  agreement,  reference 
being  thereunto  had,  may  more  fully 
appear,"  inserted  in  a  declaration,  after 
a  statement  of  the  contents  of  the  in- 
strument, are  no  profert,  nor  are  they 
sufficient  to  supply  the  want.  Smith  v. 
Emery,  12  N.  J.  L.  53. 

See  also  supra,  note  3,  p.  863. 

2.  Consideration.  —  It  is  not  necessary 
to  aver  or  prove  a  consideration.  Buck- 
master  V.  Grundy,  2  111.  310;  Jones  v. 
Thomas,  21  Gratt.  (Va.)  96.  See  supra^ 
note  5,  p.  863. 

8.  Covenant,  How  iJet  Out.  — A  cove- 
nant should  be  pleaded  according  to  its 
form  in  the  deed,  leaving  its  effect  to 
be    ascertained    afterward.      Peck    v. 


Houghtaling,  35  Mich.  127.  But  it  is 
not  necessary  to  set  out  the  whole  deed, 
but  only  those  covenants  which  con- 
tain mutual  stipulations  and  conditions 
which  are  essential  to  the  plaintiff's 
cause  of  action.  Killian  v.  Herndon, 
4  Rich.  L.  (S.  Car.)  196;  Hughes  v. 
Houlton,  5  Blackf.  (Ind.)  180. 

In  a  declaration  on  a  covenant,  it 
should  be  set  out  without  any  inter- 
mediate inducement,  but  if  averments 
are  made  which  may  be  treated  as  mere 
surplusage  they  will  not  vitiate  the 
declaration.  Jones  v.  Thomas,  21  Gratt. 
(Va.)  96. 

4.  Performance  by  Plaintiff.  —  Where 
covenants  are  mutual  and  dependent, 
the  declaration  must  aver  that  the 
plaintiff  was  able,  ready  and  willing  to 
perform  on  his  part.  Dunlap  v.  Chi- 
cago, etc.,  R.  Co.,  151  111.  409;  Bourland 
V.  Sickles,  26  111.  497;  Davis  v.  Wiley, 
4  111.  234;  Hunter  v.  Miller,  6  B.  Mon. 
(Ky.)  612;  Keatly  v.  McLaugherty,  4 
Mo.  221;  Potts  V.  Point  Pleasant  Land 
Co.,  49  N,  J.  L.  411;  Arnold  v.  Cole,  42 
W.  Va.  663. 

5.  Breaches,  How  Stated. —  Breaches  of 
a  covenant  must  be  specified.  English 
V.  Horner,  3  N.  J.  L.  382;  Ridgell  v. 
Dale,  16  Ala.  36.  But  one  good  breach  is 
sufficient.    Gasterz^.  Ashley,  i  Ark.  325. 

While  in  an  action  for  breach  of  a 
covenant  the  covenant  may  be  set  out 
in  its  own  words,  the  breach  must  be 
assigned  in  accordance  with  its  mean- 
ing. Chicago,  etc.,  R.  Co.  v.  Hoyt.  37 
111.  App.  64.  And  a  breach  can  be  as- 
signed in  the  words  of  the  covenant 
only  where  those  words  mean  the 
same,  whether  read  with  the  context  or 
without  the  rest  of  the  instrument. 
Chicago,  etc.,  R.  Co.  v.  Hoyt,  44  111. 
App.  48.  As  where  the  covenant  is  to 
do,  or  forbear  to  do,  a  particular  act. 
Carter  v.  Denman,  23  N.  J.  L.  260. 
66  Volume  5. 


6632. 


COVENANT. 


6632. 


And  so  the  said  plaintiff  says,  that  the  said  defendant,  although  often 
requested^  so  to  do,  has  not  kept  the  said  covenant  so  by  him  made 
as  aforesaid,  but  hath  broken  the  same  with  the  said  plaintiff,  hath 
hitherto  wholly  neglected  and  refused,  and  still  doth  neglect  and 
refuse  to  keep  the  same,^  to  the  damage  of  the  said  plaintiff  of  one 
thousand  diQtWdss.'^     And  therefore  he  sues. 

Jeremiah  Mason,  P.  Q. 


1.  Bequest  to  Defendant.  —  Where  a 
special  request  is  not  necessary  to  im- 
pose on  the  defendant  the  obligation 
to  pay,  nor  to  render  him  liable  on  his 
covenant,  it  is  not  necessary  to  be 
averred.     Smith  v.  Emery,  I2  N.  J.  L. 

53- 

2.  That  part  of  the  declaration  be- 
ginning "And  so  the  said  plaintiff  says 
that  the  said  defendant,  although  often 


requested  so  to  do,  hath  not  kept  his 
said  covenant,  but  hath  broken  the 
same,"  etc.,  is  a  merely  formal  allega- 
tion and  may  be  omitted.  4  Min. 
Inst.,  pt.  2,  p.  587;  3  Rob.  Pr.  362  etseq., 
582  et  seq.\  and  see  supra,  note  4, 
p.  864. 

3.  Damages.  —  See  supra,   note  5,  p. 
864. 


867 


Volume  5. 


COVENANTS. 

For  Forms  in  Actions  for  Breach  of  Particular  Covenants^  see  the  titles 
ANNUITIES,  vol.  i,  p.  789;  APPRENTICES,  vol.  2,  p. 
I-  BUILDERS  AND  ARCHITECTS,  vol.  4,  p.  121; 
CHARTER-PARTIES,  vol.  4,  P-  7591  GOOD -WILL; 
LANDLORD  AND  TENANT;  LEASES;  PARTNER- 
SHIP;  PARTY  WALLS;  VENDOR  AND  PUR- 
CHASER-, and  also  the  GENERAL  INDEX  to  this  work. 

For  Forms  in  Actions  to  Compel  Specific  Performance  of  Covenants,  see 
the  title  SPECIFIC  PERFORMANCE. 


COVERTURE. 

By  Thomas  E.   O'Brien. 

I.  PLEA,  ANSWER  OR  AFFmAVIT  OF  DEFENSE,  868. 
1.    Generally,  869. 
3.   Setting  Up  Exempted  Liability,  870. 

II.  REPLICATION  OR  REPLY,  872. 
1,   Denying  Coverture,  872. 
8.  Denying  Exempted  Liability,  873. 

CROSS-REFERENCES. 

For  Forms  of  Pleas  setting  up  Coverture  in  Abatement,  see  the  title 
ABATEMENT,  PLEAS  IN,\o\.  1,  p.  21. 

For  Forms  of  Answers  and  Pleas  setting  up  matter  of  defense  by  way  of 
Confession  and  Avoidance,  generally,  consult  the  title  CONFES- 
SION AND  AVOIDANCE,  ante,  p.  37,  and  the  GENERAL 
INDEX  to  this  work. 

For  matters  of  Procedure,  see  the  title  HUSBAND  AND  WIFE,  10 

ENCYCLOPiEDIA  OF  PLEADING  AND  PRACTICE,   p.    I9I. 

I.  PLEA,  ANSWER  OR  AFFIDAVIT  OF  DEFENSE.^ 

1.  CoTertnre,  Who  may  Plead.  —  The  erture  of  his  testatrix.  Baker  z/.  Gar- 
plea  of  coverture  is  a  personal  privi-  ris,  108  N.  Car.  218.  And  the  children 
lege  of  a  married  woman,  and  of  those  may  plead  the  coverture  of  their 
who  may  derive  their  title  through  her,  mother.  Ellis  v.  Baker,  116  Ind.  408. 
and  it  is  for  her  and  them  only  to  set  it  In  this  case  a  married  woman  had 
up  in  defense.  Newhart  v.  Peters,  80  signed  a  note  and  executed  a  mortgage 
N.  Car.  166;  Bennett  v.  Mattingly,  no  upon  her  separate  estate  as  security  for 
Ind.  197;  Johnson  z'.  Jouchert,  124  Ind.  debts  of  her  husband,  and  died  intes- 
105.    Thus,  an  executor  may  plead  cov-  late,  leaving  children.     An  answer  to 

868  Volume  5. 


6633. 


COVERTURE. 


6633. 


1.  Generally. 

Form  No.  6633. 

(2  Chit.  PI.  472.) 

In  the  King's  Bench  (or  Common  Pleas  or  Exchequer). 

Trin.  Term,  51  Geo.  III. 
Jane  Roe 

ats. 
John  Doe. 


an  action  to  foreclose  said  mortgage, 
alleging  that  "  the  note  in  suit  was  the 
note  of  said  John  K.  Ellis,  and  said 
Clara  A.  Ellis  signed  such  note  as  his 
surety;  that,  on  the  gth  day  of  August, 
l?>84,  said  Clara  A.  Ellis  was  a  married 
woman,  the  wife  of  defendant,  y^o/i«  K. 
Ellis;  that  the  real  estate  described  in 
the  complaint  herein,  as  mortgaged  to 
plaintiff,  was,  on  said  gth  day  oi  August, 
1^84,  and  had  continued  to  be  since,  the 
sole  and  separate  property  of  said  Clara 
A.  Ellis,  except  as  hereinafter  shown, 
and  was  a  gift  from  her  ia.ihGT,  Jesse  K. 

Baker;  that,  on    the  day  of  , 

li86,  said  Clara  A.  Ellis  died  at  Martin 
county,  intestate,  leaving  as  her  heirs 
at  law  these  infant  defendants  and  their 
co-defendant,  s&id  Johti  K.  Ellis,  when 
the  title  to  the  two-thirds  part  of  such 
real  estate  was  cast  upon  these  infant 
defendants,  and  the  only  title  or  inter- 
est they  have  in  said  real  estate  is  by 
such  inheritance;  and  that  repeatedly, 
before  her  death,  said  Clara  A.  Ellis  de- 
clared  to  sa.\d  John  K.  Ellis  and  others, 
that  when  an  effort  should  be  made  to 
foreclose  the  mortgage  now  in  suit  she 
would  set  up  her  suretyship  and  ask 
to  be  released  from  such  mortgage  and 
note,"  was  held  to  constitute  a  sufficient 
defense  to  the  action,  the  court  holding 
that  the  defendants  were  the  privies  of 
the  deceased,  both  in  blood  and  estate, 
and  had  the  right  to  avail  themselves 
of  any  defense  which,  if  living,  sfte 
might  have  pleaded,  including  the  de- 
fense founded  on  coverture. 

Coverture,  How  Pleaded  —  In  Abate- 
ment. —  Where  the  objection  does  not 
go  to  the  liability  of  the  defendant,  but 
is  merely  that  the  husband  ought  to 
have  been  sued  jointly  with  her,  the 
plea  should  be  in  abatement,  i  Chit. 
PI.  (i6th  Am.  ed.)  465.  Thus,  where, 
since  entering  into  the  contractor  com- 
mitting the  tort,  the  defendant  has  mar- 
ried. I  Chit.  PI.  (i6th  Am.  ed.)  465; 
Lovell  V.  Walker,  9  M.  &  W.  299; 
Sheppard  v.  Kindle,  3  Humph.  (Tenn.) 


80;  Kennard  v.  Sax,  3  Oregon  263. 
And  the  same  is  true  where  the  objec- 
tion is  made  that  the  plaintiff  sued 
alone  when  her  husband  should  have 
been  joined  as  a  party  plaintiff.  James 
V.  Stewart,  9  Ala.  855;  Hayden  v.  Attle- 
borough,  7  Gray  (Mass.)  338;  Morgan 
V.  Cubitt,  3  Exch.  612;  Milnerf.  Milnes, 
3  T.  R.  627;  Caudell  v.  Shaw,  4  T.  R. 
361. 

For  forms  of  pleas  in  abatement  in 
both  classes  of  cases  consult  the  title 
Abatement,  Pleas  in,  vol.  i.  Forms 
Nos.  65  to  71. 

In  Bar.  —  Where,  however,  the  de- 
fense goes  to  the  root  of  the  demand  and 
destroys  the  cause  of  action,  as  where 
the  coverture  existed  at  the  time  the 
supposed  contract  was  made,  the  plea 
should  be  in  bar.  Morris  v.  Lindsley, 
45  »N.  J.  L.  435;  Kennard  v.  Sax,  3 
Oregon  263;  Steer  v.  Steer,  14  S.  & 
R.  (Pa.)  379;  Roseberry  v.  Roseberry, 
27  W.  Va.  759. 

To  be  available  as  a  defense,  cover- 
ture must  be  specially  pleaded.  Mar- 
ion V.  Regenstein,  98  Ala.  475;  Long 
V.  Dixon,  55  Ind.  352;  Landers  v.  Doug- 
las, 46  Ind.  522;  Elson  v.  O'Dowd,  40 
Ind.  300;  McDaniel  v.  Carver,  40  Ind. 
250;  Van  Metre  v.  Wolf,  27  Iowa  341; 
Von  Schrader  v.  Taylor,  7  Mo.  App. 
361;  Baker  v.  Garris,  108  N.  Car.  218; 
Neville  v.  Pope,  95  N.  Car.  346;  Bur- 
nett V.  Nicholson,  86  N.  Car.  99;  Vick 
V.  Pope,  8i  N.  Car.  22;  Caldwell  v. 
Brown,  43  Tex.  216;  Phelps  v.  Brack- 
ett,  24  Tex.  236. 

Mere  Plea  of  Coverture,  When  Not  Suffi- 
cient.—  When,  by  statute,  a  married 
woman  is  given  absolute  control  over 
her  separate  property,  and  permitted  to 
sue  and  be  sued  as  ai  feme  sole,  there  is 
a  presumption  that  she  had  power  to 
make  the  contract  upon  which  the  suit 
is  brought,  and  a  mere  plea  of  cover- 
ture, without  additional  averments  to 
show  that  the  contract  is  one  beyond 
her  power  to  make,  is  insufficient.  Britt 
V.  Pitts,  III  Ala.  401;  Strauss  v.  Glass, 


809 


Volume  5. 


6634.  COVERTURE.  6635. 

And  the  said  Jane  Roe  in  person^  comes  and  defends  the  wrong 
and  injury,  when,  etc.,  and  says  that  the  said  John  Doe  ought  not  to 
have  or  maintain  his  aforesaid  action  thereof  against  her,  because 
she  says  that  she,  the  said  Jane  Roe.,  before,  and  at  the  time  of  the 
making  of  the  said  several  supposed  promises  and  undertakings  in 
the  said  declaration  mentioned,  was  and  still  is  the  wife  of  one 
Richard  Roe.,  to  wit,  at  Westminster  aforesaid,  and  this  the  said  Jane 
Roe  is  ready  to  verify,  wherefore  she  prays  judgment  if  the  said  John 
Doe  ought  to  have  or  maintain  his  aforesaid  action  thereof  against 
her,  etc. 

Form  No.  6634. 
(Bullitt's  Civ.  Code  Ky.  (1895),  p.  639.) 

John  Doe,  plaintiff,       )  Lee  Circuit  Court, 

against  >•  Answer  of  Defendant. 

Martha  Roe,  defendant.  ) 

The  defendant,  Martha  Roe.,  says  that  at  the  time  of  the  making  of 
the  note  sued  on,  she  was  (and  yet  is)  a  married  woman,  the  wife  of 
Richard  Roe. 

Oliver  Ellsworth,  Attorney. 
(J^erijicaiion.y^ 

2.  Setting  Up  Exempted  Liability. 

Form  No.  6  6  3  5  .^ 

State  of  Indiana,  \  In  the  Posey  Circuit  Court. 
Posey  County.       \  October  Term,  i2,97. 
John  Doe  ) 

against  j-  Separate  Answer  of  Julia  Roe. 

Richard  Roe  and  Julia  Roe.  ) 

Julia  Roe,  defendant  herein,  for  separate  answer  to  plaintiff's  com- 
plaint, says,  that  at  the  time  of  the  execution  of  the  said  note  and 
mortgage  she  was  a  married  woman,  the  owner  of  the  real  estate 
described  in  the  mortgage;  that  the  said  note  was  given  for  a  debt 
then  owing  by  her  husband  and  co-defendant,  Richard  Roe,  and  that 

108  Ala.  546;  Wofford  z/.  Baker,  80  Ala.  person,  and  not  by  attorney.     2  Chit. 

303;  Miller   v.    Shields,    124   Ind.   166;  PI.   472,  note  i;   i  Chit.   PI.  (i6th  Am. 

Ferris  z/.   Holmes,  8  Daly  (N.  Y.)  217.  ed.)  444;   Stephens    PI.   65;    2   Saund. 

And  the  same  is  true  in  all  cases  where  2oqf,  note;  Oulds  v.  Sansom,  3  Taunt, 

contracts     are    ordinarily   enforceable  261;  Keddeslin  z/.  Meyer,  2  Miles  (Pa.) 

agamst  a  married  woman.     Vansyckel  295;   Phillips  v.    Burr,   4  Duer  (N.  Y.) 

V.  Woolverton,  56  N.  J.  L.  8;  Hinkson  113. 

z/.  Williams.  41  N.  J.  L.  35.  2.  For  the  form  of  verification   in   a 

For  the  formal  parts  of  an  answer  or  particular  jurisdiction  consult  the  title 

plea  in  a  particular  jurisdiction  consult  Verifications. 

the  titles  Answers  in  Code  Pleading,  3.  This  is  in  substance  the  answer  in 

vol.    I     p.   79g;   and   Pi.eas.      For   the  Allen  v.  Davis,  loi   Ind.   187.     In  that 

lormal  parts  of  an  affidavit  of  defense  case  the  answer  was  held  to  constitute 

consult  the  title  Affidavits  of  Merits,  a  good  defense   and  that  A  mortgage 

°i   T    T»          t*  executed  by  a  married  woman  to  secure 

•f  7,  ^'*/"P*^'^«"«»»-— Atcommon  law,  her  husband's  debt  could  not  be  bind- 

it  the  defendant  be   still  married,  she  ing  on  her. 
must   plead   her    coverture   in   proper 

870  Volume  5. 


6636.  COVERTURE.  6636. 

she  executed  the  said  note  and  mortgage  jointly  with  her  said  hus- 
band as  his  surety. 1 

Oliver  Ellsworth,  Attorney  for  Defendant. 
(  Verification.^' 

Form  No.  6636.' 

John  Doe  )  In  the  Court  0/  Common  Pleas,  No.  4, 

against  >■      of  Philadelphia  County. 

Richard  Roe  and  Martha  Roe.  )  March  Term,  i8P7,  No.  101. 

City  and  County  of  Philadelphia,  ss. 

Martha  Roe,  one  of  the  defendants,  being  duly  sworn,  for  defense 
to  the  claim  of  plaintiffs  in  this  suit,  says,  that  at  the  time  of  the 
making  of  the  promissory  note  on  which  this  suit  has  been  brought, 
this  defendant  was  and  still  is  the  wife  of  Richard  Roe,  who  has  been 
joined  with  her  in  this  suit,  and  that  the  consideration  of  the  said 
note  was  not  for  necessaries  furnished  by  said  plaintiffs  for  the  use 
of  herself  and  family.  That  her  said  husband  resided  with  this 
defendant  at  the  time  of  the  making  of  the  said  note,  and  still  con- 
tinues to  live  and  reside  with  her.  That  the  title  to  the  property  on 
which  the  defendant  resides  is  not  in  her  name,  as  is  alleged  in  the 
affidavit  filed  by  the  plaintiff  in  this  suit.  This  defendant  further 
says  that  she  has  paid  to  said  plaintiffs,  on  account  of  the  said  note, 
the  sum  of  two  hundred  and  eighty  dollars,  and  that  the  said  note  was 
given  by  mistake  to  the  plaintiffs  for  two  hundred  dollars  above  the 
true  amount  of  their  claim,  and  further,  says  not. 

Martha  Roe. 

Sworn  to  and  subscribed  before  me  this  7?rj/ day  of  J/arM,  i857. 

Norton  Porter,  Notary  Public. 

1.  Contract  of  SoretysMp  Void  as  to  Pennsylvania  statute  providing  that 
Married  Woman.  —  In  some  states  it  is  "  In  all  cases  where  debts  may  be  con- 
provided  by  statute  that  married  women  tracted  for  necessaries,  for  the  support 
shall  not  enter  into  any  contract  of  and  maintenance  of  the  family  of  any 
suretyship,  whether  as  indorser,  guar-  married  woman,  it  shall  be  lawful  for 
antor,  or  in  any  other  manner,  and  the  creditor,  in  such  case,  to  institute 
that  such  contract  as  to  her  shall  be  suit  against  the  husband  and  wife  for 
void.  Horner's  Stat.  Ind.  (1896),  §  the  price  of  such  necessaries,  and  after 
5119;  Bright.  Pur.  Dig.  Pa.  (1894),^.  obtaining  a  judgment  have  an  execu- 
1299,^24.  But  in  an  action  upon  a  tion  against  the  husband  alone;  and  if 
promissory  note,  executed  by  a  married  no  property  of  the  said  husband  be 
woman  and  secured  by  mortgage,  exe-  found,  the  officer  executing  the  said 
cuted  by  her  jointly  with  her  husband,  writ  shall  so  return,  and  thereupon  an 
there  is  no  presumption  that  she  acted  alias  execution  may  be  issued,  which 
as  surety  or  guarantor  and  the  burden  may  be  levied  upon  and  satisfied  out 
is  upon  her  to  show  that  she  is  not  of  the  separate  property  of  the  wife, 
liable.     Miller  v.  Shields,  124  Ind.  166.  secured  to  her  under  the  provisions  of 

2.  For  the  form  of  verification  in  a  the  first  section  of  this  act:  Provided, 
particular  jurisdiction  consult  the  title  That  judgment  shall  not  be  rendered 
Verifications.  against  the  wife,  in  such  joint  action, 

3.  This  is  in  substance  the  affidavit  unless  it  shall  have  been  proved  that 
in  Imhoff  v.  Brown,  30  Pa.  St.  504.  the  debt  sued  for  in  such  action  was 
The  affidavit  was  deemed  sufficient,  the  contracted  by  the  wife,  or  incurred  for 
court  holding  that  it  is  sufficient  for  a  articles  necessary  for  the  support  of  the 
married  woman  sued  on  a  promissory  family  of  the  said  husband  and  wife." 
note  to  allege  coverture  in  her  affidavit  Bright.  Pur.  Dig.  Pa.  (1894),  p.  1302, 
of  defense,  and  to  state  that  the  note  §42.  A  similar  statute  exists  in  TVjraj. 
was    not    given    for    necessaries,    the  Tex.  Rev.  Stat.  (1895),  arts.  1201,  2970. 

871  Volume  5. 


6637. 


COVERTURE. 


6637. 


II.  REPLICATION  OR  REPLY.i 
1.  Denying:  Coverture. 

Form  No.  6637. 

(2  Chit.  PI.  638.) 

In  the  King's  Bench  (or  Common  Fleas  or  Exchequer). 

Trin.  Term,  ^7  Get.  III. 
John  Doe 
agt. 
Martha  Roe. 

And  the  said  John  Doe  saith  that  his  said  bill  (or  the  said  writ),  by 
reason  of  anything  by  the  said  Martha  Roe  in  her  said  plea  above 
alleged,  ought  not  to  be  quashed,  because  he  says  that  at  the  time  of 
exhibiting  the  said  bill  (or  at  the  time  of  issuing  of  the  said  writ) 
against  the  said  Martha  Roe,  she,  the  said  Martha  Roe,  was  not  mar- 


1.  Bequisites  Generally.  —  Where,  un- 
der special  circumstances,  a  married 
woman  is  liable  notwithstanding  her 
coverture,  the  replication  must  state 
such  special  circumstances.  2  Chit. 
PI.  638,  note  a;  Arnold  v.  Engleman,  103 
Ind.  512;  Cupp  V.  Campbell,  103  Ind. 
213;  Murray  v.  Keyes,  35  Pa.  St.  384; 
Mahon  v.  Gormley,  24  Pa.  St.  80. 

For  the  formal  pcirts  of  a  replication  or 
reply  in  a  particular  jurisdiction  con- 
sult the  title  Replications. 

Precedents. —  In  De  Gaillon  v.  L'Aigle, 
1  B.  «&  P.  357,  the  replication,  omitting 
formal  parts,  was  as  follows:  "  that  be- 
fore and  at  the  time  of  making  the  said 
several  promises  and  undertakings  in 
the  said  declaration  mentioned  and  from 
thence  hitherto,  the  said  fohn  Martin 
Hard  VAigle  lived  and  resided  in  parts 
beyond  the  seas,  out  of  this  kingdom, 
to  wit,  at  Hamburgh^  and  that  during  all 
that  lime  the  said  Victoire  Hard  L'Aigle 
lived    in   this   kingdom   separate    and 


defendant,  who  was  an  English- 
woman, was  an  alien  and  had  never 
resided  in  England,  and  the  decision 
seems  to  have  turned  upon  that  fact. 
But  where  the  husband  is  an  English- 
man the  right  of  the  wife  to  sue  and  be 
sued  as  a.  feme  sole  seems  to  be  limited 
to  cases  of  civil  death  of  the  husband. 
See  Robinson  v.  Reynolds,  i  Aiken 
(Vt.)  174,  where  the  leading  English 
cases  are  considered  and  discussed. 
See  also  note  to  Boggert  v.  Frier,  11 
East  301. 

In  Britt  v.  Pitts,  in  Ala.  401,  it  was 
held  that  under  section  2347  of  the  code 
of  1886,  providing  that  for  all  torts  com- 
mitted by  a  married  woman  she  must 
be  sued  alone,  where  A  sued  B  in  deti- 
nue to  recover  certain  cotton  and  C 
interposed  a  claim  to  the  property, 
filing  a  bond  signed  by  plaintiff  and 
defendant  as  sureties,  the  property  be- 
ing subsequently  released  to  defendant, 
by  whom  it  was  sold  and  the  proceeds 


apart  from  the  %a.\A  John  Martin  Harel    converted,   and  later  a  judgment    was 


L'Aigle  and  followed  and  carried  on  the 
trade  and  business  of  a  merchant,  as  a 
single  woman  and  a  sole  trader,  to  wit, 
at  JVesiminster,  eic,  and  that  the  plain- 
tiff did  not  give  any  credit  to  the  said 
fohn  Martin  Harei  L'Aigle,  but  traded 
and  dealt  with  the  said  Victoire  Harel 
as  a  feme  sole  and  on  her  sole  credit; 
and  that  the  said  Victoire  Harel  made 
the  said  several  promises  and  under- 
takings in  the  said  declaration  men- 
tioned as  SMchfeme  sole  as  aforesaid  " 
Demurrer  to  this  replication  was  over- 
ruled and  judgment  entered  for  the 
plaintiff.     In  this  case  the  husband  of 


rendered  against  the  sureties  on  the 
bond,  which  judgment  was  paid  by 
plaintiff,  in  an  action  brought  against 
defendant  to  recover  damages  sus- 
tained by  defendant's  failure  to  deliver 
the  cotton,  a  reply  to  an  answer  setting 
up  the  coverture  at  the  time  of  signing 
the  bond,  "  that  the  cause  of  action  set 
forth  in  the  complaint  is  for  the  tort  al- 
leged to  have  been  committed  by  the  de- 
fendant, and  if  she  be  a  married  woman 
as  alleged  in  the  plea  she  is  liable  for 
said  tort  and  said  plea  is  no  answer  to 
the  action,"  was  sufficient  and  that 
plaintiff  was  entitled  to  recover. 


873 


Volume  5. 


6638.  COVERTURE.  6638. 

ried  ^  to  the  said  Richard  Roe.,  in  the  said  plea  mentioned,  in  manner 
and  form  as  the  said  Martha  Roe  hath  above  in  her  said  plea  in  that 
behalf  alleged,  and  this  "he,  the  sdad  John  Doe,  prays  may  be  inquired 
of  by  the  country,  etc. 

2.  Denying-  Exempted  Liability.' 

Form  No.  6  6  3  8 .« 

State  of  Indiana,  \  In  the  Posey  Circuit  Court, 
Posey  County.        [  October  Term,  i8P7. 
John  Doe  ) 

against  >•  Reply. 

Richard  Roe  and  Martha  Roe.  ) 

The  plaintiff  admits  that  defendant  is  a  married  woman,  as  in  her 
answer  alleged,  but  says  that  the  consideration  of  the  aforesaid  notes 
was  certain  personal  property  purchased  by  the  defendant,  Martha 
Roe,  for  use  in  her  own  separate  business,  from  Francis  Fern,  the 
payee  named  in  the  said  notes. 

Wherefore  plaintiff  demands  judgment,  as  prayed  for  in  his  com- 
plaint. 

Oliver  Ellsworth,  Attorney  for  Plaintiff. 

1.  If  defendant  had  been  married  but  and  that  she  executed  them  as  surety 
her  husband  dead,  the  latter  fact  should  for  her  husband,  and  that  no  part  of 
be  replied.     2  Chit.  PI.  638,  note  a.  the  consideration  for  which   the  notes 

2.  This  form  is  based  upon  the  reply  were  given  was  received  by  her.  It 
in  Chandler  v.  Spencer,  109  Ind.  553.  was  held  that  plaintiff's  reply  was  sufE- 
In  that  case  the  action  was  brought  cient  without  alleging  that  the  property 
against  husband  and  wife  to  recover  was  delivered  to,  or  received  by,  de- 
on  their  promissory  notes,  executed  by  fendant. 

them,  and  which  had  been  assigned  to         See  also  substance  of  a  sufficient  re- 
plaintiff.     The  wife,  in  a  separate  an-     ply  in  Arnold  v,   Engleman,  103  Ind. 
swer,  alleged  that  she  was  a  married     512. 
woman  when  she  executed  the  notes, 

87?  Volume  5. 


CREDITORS'  SUITS. 

By  W.  R.  BUCKMINSTER. 

I.  TO  SUBJECT  PROPERTY  NOT  REACHABLE  BY  EXECUTION,  874. 
1.  In  General,  874. 
».  Dower  Interest  not  Set  Off,  883. 

3.  Judgment  Standing  in  Favor  of  Debtor,  884. 

4,  Patent-right,  886. 

6.  Property  in  Name  of  Another  where  Purchase  Money  was  Fur- 
nished by  Debtor,  887. 

6.  Royalty  Payable  tinder  a  Publisher' s  Contract,  891. 

7.  Treasury  Warrant,  894. 

8.  Trust  Property,  895. 

a.  Devise  in  Trust,  895. 

b.  Express  Trust,  899. 

c.  Secret  Trust,  902. 

9.  To  Enjoin  Transfer  of  Note  and  Foreclosure  of  Mortgage  Held 

by  Debtor  and  to  Apply  Same  to  Plaintiff's  Claim,  907. 

II.  TO  OBTAIN  DISCOVERY  OF  PROPERTY  OF  JUDGMENT  DEBT©R, 

909. 

III.  BY  Creditors  of  a  corporation,  910. 

1,  For  Ratable  Distribution  of  Assets,  910. 
a.   To  Collect  Unpaid  Stock  Subscriptions,  914. 

CROSS-REFERENCES. 

For  Forms  in  Suits  to  Set  Aside  Fraudulent  Conveyances,  see  the  title 
ERA  UDULENT  CONVEYANCES. 

For  Forms  in  Proceedings  to  Subject  Decedent's  Estate  to  Payment  of 
Debts  in  Default  of  Personal  Property,  see  the  title  PROP  A  TE 
AND  ADMINISTRA  TION. 

For  Forms  in  Proceedings  Supplementary  to  Execution,  see  the  title  SUP- 
PLEMENTARY PROCEEDINGS. 

For  matters  of  Procedure,  generally,  see  the  title  CREDITORS'  BILLS, 

5   ENCYCLOPiEDIA  OF  PLEADING   AhD   PRACTICE,  p.   388. 

I.  To  Subject  property  not  reachable  by  execution.^ 
1.  In  General. 

1.  Eeqnlsites  of  Bill  or  Complaint,  Gen-  to  give  the  judgment  its  legal  and  full 

erally.  — No  particular  form  of  bill  or  effect.     Dunham  v.  Cox,    10  N.J.  Eq. 

formal  specific  allegations  are  necessary  467. 

to  constitute  the  bill  a  good  one,  but  For  forms  of  bills  in  equity,  gener- 

facts  must  be  stated   from  which,  at  ally,  consult  the  title  Bills  in  Equity, 

th*^^'-^^^'"^^'^^"*^^  ^^^  ^^  drawn,  that  vol.  3,  p.  417.     For  the  formal  parts  of 

the  aid  of  a  court  of  equity  is  required  complaints  or  petitions,  generally,  con- 

874  Volume  5. 


6639. 


CREDITORS'  SUITS. 


6639. 


suit  the  title  Complaints,  vol.  4,  p, 
1019. 

Bill  with  Double  Aspect. — 'As  to  the 
permissibility  of  framing  a  bill  with  a 
double  aspect,  see  5  Encycl.  of  PI.  and 
Pr.  560. 

Jorisdictional  Facts.  —  It  should  ap- 
pear from  the  bill  that  the  court  in 
which  it  is  filed  has  jurisdiction  of  the 
action.  5  Encycl.  of  PI.  and  Pr.  557. 
But  in  an  action  under  Bullitt's  Civ. 
Code  Ky.  (1895),  §  439,  to  subject  an 
interest  in  land  it  is  not  necessary  to 
allege  expressly  that  the  land  was 
situated  in  the  county  where  the  suit 
was  brought  when  this  fact  is  made 
plainly  evident  by  the  pleadings  and 
exhibits.  Bryant  v.  Bryant,  (Ky.  1892) 
20  S   W.  Rep.  270. 

Inv'tation  to  Other  Creditors.  —  As  to 
when  it  is  necessary  to  state  in  whose 
behalf  the  bill  is  filed  and  when  it  must 
contain  an  invitation  to  other  creditors 
to  join,  see  5  Encycl.  of  Pi.  and  Pr. 
558. 

Negation  of  Collasion  with  Debtor. — 
In  the  absence  of  some  statute  or  rule 
of  court  requiring  it,  the  complainant 
need  not  allege  that  the  bill  is  not  pre- 
ferred and  prosecuted  by  collusion, or  for 
the  purpose  of  protecting  the  property 
and  effects  of  the  debtor  against  the 
claims  of  other  creditors.  Hammond  v. 
Hudson  River  Iron,  etc.,  Co.,  20  Barb. 
(N.  Y.)  378.  Such  a  rule  exists  in  Wis- 
consin. Sanb.  &  B.  Anno.  Stat.  Wis. 
(1889);  §  3029,  note.  In  New  York  also 
there  was  formerly  such  a  rule.  McEl- 
wain  z/. Willis,  3  Paige  (N.  Y.)  505.  But 
this  rule  was  superseded  by  the  code. 
Quick  V.  Keeler,  2  Sandf.  (N.  Y.)  231. 
And  even  where  the  rule  exists,  no 
averment  is  necessary  if  the  complaint 
states  facts  from  which  it  is  apparent 
that  there  is  no  collusion.  Faber  v. 
Matz,  86  Wis.  370. 

Description  of  Indebtedness.  —  A  debt 
need  not  be  reduced  to  judgment  in  or- 
der to  maintain  a  bill  in  equity  under 
Mass.  Pub.  Stat.  (1882),  c.  151,  55  2,  cl. 
II,  and  Stat.  (1884),  c.  285,  to  reach  and 
apply  in  payment  of  a  debt  property  of 
the  debtor  which  cannot  be  attached  or 
taken  on  execution  at  law,  but  in  such 
case  the  bill  should  set  out  the  cause  of 
action  as  specifically  as  is  required  in 
an  action  at  law.  Sandford  v.  Wright, 
164  Mass.  85.  See  also  Elwell  v.  John- 
son, 3  Hun  (N.  Y.)  558;  Louis  z/.  Bel- 
gard,  (Supreme  Ct.)  17  N..  Y.  Supp.  882. 
Where,  however,  a  judgment  has  been 
recovered,  it  is  not  necessary  to  allege 
the   indebtedness  on  which  it  was  re- 


covered. Tatum  V.  Rosenthal,  95  Cal. 
129. 

Ezhanstion  of  Legal  Bemedies  —  Gen- 
erally. —  To  entitle  a  judgment  creditor 
to  go  into  chancery,  the  bill  must  show 
that  he  has  exhausted  his  legal  remedie. 
Roper  V.  McCook,  7  Ala.  318;  Newman 
V.  Willetts,  52  111.98;  Webster  z/.  Clark, 
25  Me.  313;  Voorhees  v.  Howard,  4 
Keyes  (N.  Y.)  371;  Rhodes  v.  Cousins, 
6  Rand.  (Va.)  188;  Daskam  v.  Nef!,  79 
Wis.  161;  Taylor  v.  Bowker,  11 1  U.  S. 
no,  6  Am.  and  Eng.  Corp.  Cas.  609.  Or 
must  allege  facts  excusing  complain- 
ant's failure  so  todo.  Corey  z/.  Greene, 
51  Me.  114. 

The  Judgment.  —  The  bill  should  set 
forth  a  judgment.  Taylor  v.  Bowker, 
III  U.  S.  no,  6  Am.  and  Eng.  Corp.  Cas. 
609;  Block  V.  Marks,  47  La.  Ann.  107. 
And  where  a  transcript  of  the  judg- 
ment must  be  recorded  in  another 
county  than  that  in  which  it  is  recov- 
ered in  ordef  to  make  the  judgment  a 
lien  upon  land  belonging  to  the  de- 
fendant in  such  other  county,  the  bll> 
must  contain  an  averment  that  a  tran- 
script of  the  judgment  was  duly  re- 
corded.   Barnes  v.  Beighly,  9  Colo.  475. 

In  pleading  a  right  acquired  under  a 
judgment  of  an  inferior  court  of  limited 
jurisdiction,  sufficient  should  be  stated 
to  show  that  such  court  had  jurisdic- 
tion to  render  such  judgment.  Dix  v. 
Briggs,  9  Paige  (N.  Y.)  595.  See  also 
Siegmund  v.  Ascher,  37  III.  App.  122. 

In  reciting  the  judgment  recovered,  a 
variance  of  six  cents  assessed  for  costs 
is  not  a  fatal  variance.  Baggott  v. 
Eagleson,  Hoffm.  Ch.  (N.  Y.)  377.  Nor 
will  relief  be  denied  on  the  ground  that 
judgment  was  entered  on  a  later  date 
than  that  stated  in  the  bill,  if  it  appears 
that  the  later  judgment  entry  was 
merely  to  correct  the  one  relied  on  be- 
fore, or  does  not  appear  that  counsel 
did  not  have  notice  of  the  correction  or 
were  misled  by  the  variance.  Marshall 
First  Nat.  Bank  v.  Hosmer,  48  Mich. 
200.  See  also  Baggott  v.  Eagleson, 
Hoffm.  Ch.  (N.  Y.)  377. 

Where  the  bill  is  brought  by  one  not  a 
party  to  the  judgment,  the  bill  must 
allege  complainant's  ownership  of  the 
judgment  in  a  proper  manner,  and  an 
allegation  of  ownership  of  an  execution 
issued  thereon  and  returned  unsatis- 
fied is  not  sufficient.  Richardson  v. 
Gilbert,  21  Fla.  552.  But  the  assignee 
of  a  judgment  need  not  aver  the  con- 
sideration for  the  assignment.  Gleason 
V.  Gage,  7  Paige  (N.  Y.)  121.  Nor  that 
it  was  in  writing.    Jones  v.  Smith,  92 


875 


Volume 


6639. 


CREDITORS'  SUITS. 


6639. 


Ala.  455.  In  such  case,  however,  an 
assignment  of  the  whole  judgment 
should  be  alleged  if  the  complainant 
seeks  the  payment  of  the  judgment  in- 
cluding costs.  Strange  v.  Longley,  3 
Barb.  Ch.  (N.  Y.)  650.  And  an  aver- 
ment that  complainant  recovered  the 
judgment  in  his  own  name  for  the  use 
of  another,  and  further  that  the  said 
judgment  is  now  his  property,  is  suffi- 
cient.    Postlewait   v.  Howes,    3  Iowa 

3^5- 

The  Execution.  —  The  bill  should  al- 
lege that  execution  actually  issued. 
Taylor  v.  Bowker,  iii  U.  S.  no,  6  Am. 
and  Eng.  Corp.  Cas.  609;  Roper  v.  Mc- 
Cook,  7  Ala.  318.  And  should  state 
the  time  when  the  execution  was  re- 
turnable. Cassidy  v.  Meacham,  3 
Paige  (N.  Y.)  311;  Albright  v.  Herzog, 
12  111.  App.  557.  Except  where  the  exe- 
cution is  made  by  law  returnable  in  a 
specified  time,  in  which  case  the  bill 
need  not  set  out  what  time  it  was  made 
returnable.  Strange  v.  Longley,  3  Barb. 
Ch.  (N.  Y.)  650. 

An  allegation  that  on  the  same  day 
the  judgment  was  recovered  a  fi.  fa. 
was  "  sued  out  and  prosecuted,"  and 
that  before  delivery  it  was  indorsed 
"and  was  then  delivered  to  the  said 
sheriff  to  be  executed  in  due  form  of 
law,"  was  held  to  be  a  sufficient  aver- 
ment of  delivery  to  the  sheriff  before 
the  return  day.  Conant  v.  Sparks,  3 
Edw.  Ch.  (N.  Y.)  104. 

Where  a  creditor's  bill  is  founded 
upon  a  judgment  upon  which  an  exe- 
cution may  be  issued  to  any  county, 
the  complainant  must  show  affirma- 
tively in  his  bill  that  he  has  exhausted 
his  remedy  by  issuing  an  execution  to 
the  county  in  which  the  defendant  re- 
sided at  the  time  that  such  execution 
was  issued,  or  must  state  in  his  bill 
some  sufficient  legal  excuse  for  issuing 
his  execution  to  a  different  county. 
Reed  v.  Wheaton,  7  Paige  (N.  Y.)  663; 
Leggett  V.  Hopkins,  7  Paige  (N.  Y.)  149. 
And  it  should  be  specifically  alleged 
that  at  the  time  of  the  issuance  of  the 
execution  defendant  was  a  resident  of 
the  county  to  which  the  execution  is- 
sued. Preston  v.  Wilcox,  38  Mich.  578; 
Wheeler  v.  Heermans,  3  Sandf.  Ch.  (N. 
Y.)  597;  Smith  V.  Fitch,  Clarke  Ch. 
(N.  Y.)  265;  Hope  V.  Brinckerhoff,  3 
Edw.  Ch.  (N.  Y.)  445.  But  in  Alabama 
it  is  held  that  the  bill  need  not  contain' 
a  specific  allegation  that  the  execution 
was  issued  to  the  county  in  which  the 
defendant  had  a  fixed  and  known  resi- 
dence, and   that  it  devolves   upon  the 


defendant  to  show  that  the  execution 
was  issued  to  an  improper  county. 
Brown  v.  Bates,  10  Ala  432,  followed 
in  Nix  V.  Winter,  35  Ala.  309. 

The  bill  need  not  specifically  allege 
that  the  writ  of  fieri  facias  directed  the 
amount  of  the  judgment  to  be  made 
out  of  the  lands  and  tenements  of  the 
defendant,  when  an  ordinary  execution 
as  prescribed  by  statute  authorizes  a 
levy  on  the  debtor's  lands,  as  it  will  be 
presumed,  in  the  absence  of  proof  to 
the  contrary,  that  the  execution  was 
regular  and  conformed  to  the  law. 
Brown  v.  Bates,  10  Ala,  432. 

The  Return.  —  The  bill  should  allege 
that  the  execution  was  returned  unsat- 
isfied. Mixon  V.  Dunklin,  48  Ala.  455; 
Roper  z/.  McCook,  7  Ala.  318;  Newman 
V.  Willetts,  52  111.  98;  Taylor  v.  Bow- 
ker, III  U.  S.  no,  6  Am.  and  Eng.  Corp. 
Cas.  609.  And  should  allege  an  actual 
return  of  the  execution  before  the  filing 
of  the  bill,  stating  the  time  when  it  was 
made.  Shea  v.  Dulin,  3  MacArthur 
(D.  C.)  339;  Albrigh  v.  Herzog,  12  111. 
App.  557;  Preston  v.  Wilcox,  38  Mich. 
578;  Cassidy  v.  Meacham,  3  Paige  (N. 
Y.)  311.  And  where  it  appears  that  the 
execution  was  returned  on  a  day  sub- 
sequent to  the  commencement  of  the 
suit,  the  bill  will  be  dismissed,  although 
the  objection  was  not  taken  in  the  an 
swer,  and  although  the  execution  as 
exemplified  was  returnable  and  proved 
to  have  been  returned  and  filed  prior 
to  the  filing  of  the  bill.  Pardee  v.  De 
Cala,  7  Paige  (N.  Y.)  132.  But  see 
Long  V.  Page,  10  Humph.  (Tenn.)  541, 
where  it  was  held  that  an  objection  so 
taken  came  too  late. 

But  the  return  need  not  be  set  forth 
in  hcec  verba.  Daskam  v.  Neff,  79  Wis. 
i6i.  A  statement  that  an  execution 
had  been  issued  on  a  judgment  and 
"  duly  returned  unsatisfied  "  is  suffi- 
cient. Page  V.  Grant,  9  Oregon  116. 
And  the  return  nulla  bona  is  sufficient 
without  stating  that  search  was  made 
for  property  by  the  officer.  Suydam  v. 
Beals,  4  McLean  (U.  S.)  12.  But  a  re- 
turn that  defendant  has  "  no  goods" 
is  insufficient  under  a  statute  allowing 
the  bill  where  the  judgment  debtor  has 
not  personal  or  real  property  sufficient 
to  satisfy  the  judgment.  State  Bank 
V.  Oliver,  i  Disney  (Ohio)  159. 

An  allegation  that  the  sheriff  returned 
that  A  and  B  had  no  goods,  etc.,  was 
held  to  show. a  want  of  individual  as 
well  as  joint  goods.  Conant  z/.  Sparks, 
3  Edw.  Ch.  (N.  Y.)  104. 

Insolvency  of  Debtor.  —  Where    it    is 
76  Volume  5. 


6639. 


CREDITORS'  SUITS.' 


6639. 


alleged  that  an  execution  has  been 
issued  and  returned  unsatisfied,  it  need 
not  be  otherwise  distinctly  averred  that 
the  debtor  has  no  other  property  than 
that  out  of  which  the  creditor  seeks 
payment.  McElwain  v.  Willis,  g  Wend. 
(N.  Y.)  559;  Page  v.  Grant,  9  Oregon 
116;  Daskam  v.  Neff,  79  Wis.  161.  But 
insolvency  is  frequently  an  excuse  for 
exhausting  legal  remedies,  and  in  such 
case  the  allegation  as  to  insolvency 
should  be  clear  and  specific.  5  Encycl. 
of  PI.  and  Pr.  567.  The  debtor's  insol- 
vency need  not  be  stated  in  terms  when 
facts  are  alleged  from  which  it  may  be 
deduced.  Dunsback  v.  Collar,  95  Mich. 
6n;  and  see  Turner  v.  Adams.  46  Mo. 

95- 
Description  of  Property  in  Alternative. 

—  Under  the  Alabama  act  of  1844,  which 
enacted  "  that  whenever  an  execution 
against  the  property  of  a  defendant 
shall  have  been  issued  on  a  judgment 
of  law,  and  shall  have  been  returned 
unsatisfied,  *  *  *  the  party  suing  out 
such  execution  may  file  a  bill  in  chan- 
cery against  such  defendant,  and  any 
other  person  or  persons,  to  compel  the 
discovery  of  any  property,  money,  or 
thing  in  action,  belonging  to  the  de- 
fendant, and  of  any  property,  money, 
or  thing  in  action,  due  to  him,  or  held 
in  trust  for  him,"  etc.,  it  was  held  suf- 
ficient to  allege  in  the  bill  the  supposed 
interests  of  the  defendant  in  property, 
etc.,  in  the  general  terms  of  the  stat- 
ute, either  positively  or  in  the  alterna- 
tive. Brown  v.  Bates,  10  Ala.  432.  So 
under  Ala.  Civ.  Code  (1886),  §  3540. 
Floyd  V.  Floyd,  77  Ala.  353. 

Intent.  —  The  bill  need  not  allege  the 
concealment  by  defendant  of  property 
or  effects  to  have  been  with  the  inten- 
tion to  delay  or  hinder  the  complainant,, 
or  other  creditors,  in  the  collection  of 
their  debts.  Brown  v.  Bates,  10  Ala. 
432;  Floyd  V.  Floyd,  77  Ala.  353;  Alden 
V.  Gibson,  63  N.  H.  12. 

Fraad.  —  Under  x.\i^  Alabama  act  of 
1844,  the  bill  need  not  allege  a  fraud  on 
the  part  of  the  defendant.  Brown  v. 
Bates,  10  Ala.  432.  And  so  under  Ala. 
Civ.  Code  (1886),  §  3540.  Floyd  v. 
Floyd,  77  Ala.  353. 

The  Prayer.  —  As  to  what  relief  can 
be  granted  under  the  general  prayer  for 
other  and  further  relief,  see  the  title 
Bills  in  Equity,  vol.  3,  p.  417;  5  Encycl. 
of  PI.  and  Pr.  568. 

For  statutes  relating  to  creditors'  suits 
see  as  follows: 

Alabama.  —  Civ.  Code  (i886),  §§ 
3540-3548;  Acts  (1888-9),  P-  96,  No.  114. 


Arkansas. —  Sand.  &  H.  Dig.  (1894), 
§S  3 I 29-3 I 34. 

Colorado.  —  Mills'  Anno.  Code  (1896), 
§251. 

Georgia.  —  2  Code  (1895),  §§  2716- 
2722. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  593,  par.  49. 

Iowa.  — Code  (1897),  §§  4087-4090. 

Kentucky. —  Bullitt's  Civ.  Code  (1895), 
§430. 

Maine.  —  Rev.  Stat.  (1882),  c.  46, 4^  52. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
151,  §  2,  cl.  11;  c.  106,  §  64;  Pub.  Stat. 
(Supp.  1888),  p.  124,  c.  223;  p.  214,  c. 
285. 

Michigan.  — How.  Anno.  Stat.  (1882), 
§§  6614-6618. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  205,  §  7. 

Ohio. — Bates'    Anno.  Stat.    (1897),  § 

5464. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  %%  3029  et  seq. 

The  Illinois  statute  is  adopted  from 
the  former  JVew  York  statute  and  the 
construction  of  the  latter  is  followed. 
Singer,  etc.,  Stone  Co.  v.  Wheeler,  6 
111.  App.  225. 

Although  the  Alabama  code  uses  the 
word  "discovery"  in  all  the  sections 
relating  to  creditors'  bills,  yet  it  is  not 
necessary  that  the  bill  shall  ask  a  dis- 
covery, or  conform  to  the  requisites  of 
a  bill  for  discovery.  Zelnicker  v. 
Brigham,  74  Ala.  598. 

To  Subject  Property  Not  Beachable  by 
Execution — Generally. — The  bill  must 
allege  that  the  debtor  has  assets  or 
property  which  cannot  be  reached  by 
execution,  or  which  are  covered  up  or 
kept  out  of  the  reach  of  creditors. 
Preston  v.  Colby,  117  111.  477.  See  also 
Crabb  v.  Hiil,  (Ky.  1895)  30  S.  W. 
Rep.  415. 

Allegations  as  to  Debtor' s  Distributive 
Share.  — Where  it  is  sought  to  reach  an 
interest  of  the  debtor  in  the  estate  of 
his  deceased  father  before  a  settlement 
of  the  administrator's  account  and  an 
order  of  distribution,  the  bill  should 
aver  the  value  of  the  estate  of  the  de- 
ceased over  and  above  the  amount  of 
his  debts,  general  expenses  and  ex- 
penses of  administration,  so  that  it  may 
appear  that  the  debtor  has  an  interest 
in  the  assets  in  the  hands  of  the  ad- 
ministrator.    Ginn  v.  Brown,   14  R.  I. 

524- 

Indebtedness   at    Time   of  Fraudulent 

Concealment.  —  Where  the  bill  proceeds 

upon  the  theory  that  a  sale  made   by 

the  judgment   creditor  created  an  in- 

77  Volume  5, 


6639.  CREDITORS'  SUITS.  6639. 

Form  No.  6639.' 

State  of  Illinois^  \         Circuit  Court  of  Cook  County,  February  Term, 
CookQ,o\xn\.y.       \  a.  b.  i898. 

To  the  Judges  of  said  Court,  in  Chancery  Sitting. 

Your  orator,  /oM  Doe,  of  Chicago^  in  the  county  of  Cook  and  state 
of  Illinois,  respectfully  represents  unto  your  honors  that  at  the  Novem- 
ber term,  a.  d.  i8P7,  of  the  Circuit  Court  of  said  Cook  county,  to  wit, 
on  the  eighteenth  day  of  Novefnber,  iS97,  the  same  being  one  of  the 
regular  days  of  said  term,  your  orator  recovered  a  judgment 
against  Richard  Roe,  one  of  the  defendants  hereinafter  named,  for 
the  sum  of  five  thousand  six  hundred  dollars  and  twenty-eight  cents, 
for  the  damages  which  he  had  sustained  and  the  costs  of  suit,  and 
charges  of  your  orator  by  him  about  his  suit  in  that  behalf  expended, 
which  were  adjudged  to  your  orator  in  and  by  the  said  court,  whereof 
the  said  Richard  Roe  was  convicted,  as  by  the  record  of  the  said 
judgment  in  the  ofifice  of  the  clerk  of  said  court,  reference  being 
thereto  had,  and  to  which,  for  greater  certainty,  your  orator  prays 
leave  to  refer,  will  more  fully  and  at  large  appear. 

And  your  orator  further  represents  unto  your  honor,  that  the  said 
judgment  so  recovered  in  manner  aforesaid,  remaining  in  full  force 
and  effect,  and  the  costs,  charges  of  suit,  and  damages  aforesaid 
unpaid  and  unsatisfied,  your  orator  on  or  about  the  twentieth  day  of 
November,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-seven,  for  the  purpose  of  obtaining  satisfaction  of  the  said  judg- 
ment, sued  and  prosecuted  out  of  the  said  court  a  writ  of  fieri  facias, 
directed  to  the  sheriff  of  Cook  county,  that  being  the  county  in  which 
said  defendant  resided  at  the  time  of  the  issuing  of  said  writ,  by  which 
said  writ  the  said  sheriff  was  commanded,  that  of  the  goods,  chattels, 
lands  and  tenements  of  the  defendant  Richard  Roe,  in  his  county,  he 
cause  to  be  made  the  sum  oifive  thousand  six  hundred  doWairs  and  twenty- 
eight  cents,  which  your  orator  in  said  Circuit  Court  recovered  against 
the  said  defendant  Richard  Roe,  and  that  he  should  have  the  money 
at  the  clerk's  office  of  the  said  court,  at  Chicago,  in  said  county,  in 
ninety  days  from  the  date  thereof,  to  satisfy  the  judgment  so  recov- 
ered by  your  orator  as  aforesaid,  and  that  he  should  have  then  and 
there  that  writ. 

And  your  orator  further  shows  that  the  said  writ  of  fieri  facias, 
before  the  delivery  thereof  to  the  said  sheriff,  was  duly  indorsed,  and 
was  afterward,  to  wit,  on  or  about  the  twenty-first  day  of  November, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-seven, 
delivered  to  the  said  sheriff  to  be  executed  in  due  form  of  law. 

And  your  orator  further  shows  that  the  said  sheriff  of  said  county 
aforesaid,  on  the  eighteenth  day  of  February,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  ninety-eight,  returned  on  the  said  writ 
to  him,  in  that  behalf  directed  and  delivered  as  aforesaid,  that  after 

debtedness  to  him  which  was  fraudu-  immaterial  that  the  bill  fails  to  state 

lently  covered  up  and  concealed,  which  that   the  complainants   were  creditors 

really  belonged  to  the  judgment  debtor  when  the  sale  took  place.     Deimel  z/. 

and    which   constituted   assets    which  Brown,   136  111.  586. 

were  in  equity  liable  for  the  payment  1.  Consult  note  i,  p.  874,  supra. 
of   the   complamant's   judgment,  it  is 

878  Volume  <;. 


6639.  CREDITORS'  SUITS.  6639. 

due  search  he  had  been  unable  to  find  within  said  county  of  Cook  any 
goods,  chattels,  lands  or  tenements  of  the  said  Richard  Roe  whereof 
the  amount  of  said  judgment  and  execution  or  any  part  thereof 
could  be  made,  as  by  the  said  writ  of  fieri  facias,  and  the  directions, 
and  the  return  of  the  said  sheriff  indorsed  thereon,  as  aforesaid,  now 
on  file  in  the  office  of  the  clerk  of  the  said  court,  will  more  fully 
appear,  and  to  which,  or  to  a  copy  thereof,  your  orator  prays  leave 
to  refer. 

And  your  orator  further  shows  that  the  said  judgment  still  remains 
in  full  force  and  effect,  not  reversed,  or  satisfied,  or  otherwise 
vacated;  and  that  the  said  Richard  Roe  has  not  paid  the  same  to 
your  orator,  but  has  hitherto  wholly  neglected  and  refused  so  to  do. 

And  your  orator  further  shows  that  there  is  now  actually  and 
equitably  due  to  your  orator,  upon  the  aforesaid  judgment,  the  sum 
of  five  thousand  six  hundred  dollars  and  twenty-eight  cents,  together 
with  interest  thereon  from  the  eighteenth  day  of  November,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  ninety-seven,  over  and 
above  all  claims  of  said  defendant,  by  way  of  set-off,  or  otherwise. 

And  your  orator  further  shows  unto  your  honors  that  on  or  about 
the  first  day  of  November  and  before  that  time,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-seven,  the  said  <\ti&n6.- 
zxiX.  Richard  Roe  was  engaged  in  a  mercantile  business  at  the  Produce 
Exchange  Building  in  the  city  of  Chicago,  and  that  your  orator  is 
informed  and  believes  that  in  the  course  of  the  said  mercantile  busi- 
ness of  the  said  defendant  Richard  Ror,  divers  persons  became 
indebted  to  him  to  a  large  amount,  and  that  the  said  defendant  last 
named,  at  the  time  of  filing  this  your  orator's  bill  of  complaint,  has 
debts  due  to  him  and  for  which  he  holds  divers  securities  and  evi- 
dences to  a  large  amount,  and  has  divers  goods,  wares  and  merchan- 
dise, and  other  articles  of  personal  property  which  belong  to  him,  or 
in  which  he  in  some  way  or  manner  is  beneficially  interested;  and 
that  he  has  equitable  interests  and  things  in  action  of  some  nature  or 
kind,  which  might  and  ought  to  be  applied  to  the  payment  of  your 
orator's  said  judgment  against  him  the  said  defendant  Richard  Roe. 

And  your  orator  also  charges  that  the  said  defendant  Richard  Roe 
is  owner  of  or  in  some  way  or  manner  beneficially  interested  in  some 
real  estate,  in  this  or  some  other  state;  or  some  chattels  real  of  some 
name  or  kind;  or  some  contract  or  agreement  relating  to  real  estate; 
or  the  rents,  issues  and  profits  of  some  real  estate;  and  also  that  the 
said  defendant  Richard  Roe  is  owner  of  or  in  some  way  beneficially 
interested  in  the  stock  of  some  company,  incorporated  or  unincor- 
porated, or  in  the  profits  of  some  company,  or  copartnership;  and 
also  that  he  has  in  his  possession,  at  the  time  of  the  filing  of  this  your 
orator's  bill  of  complaint,  some  money  in  coin  or  bank  bills;  or  that 
he  has  money  deposited  in  some  bank  or  elsewhere,  to  his  credit;  or 
that  he  has  money,  or  securities  for  the  payment  of  money,  held  by 
some  other  person,  in  trust  or  otherwise,  for  his  benefit. 

And  if  the  said  defendant  Richard  Roe  has  made  any  sale,  assign- 
ment or  transfer  of  his  property  or  effects,  or  any  part  thereof,  your 
orator  expressly  charges  that  he  believes  such  sale,  assignment  or 
transfer  is  merely  colorable,  and  made  with  a  view  of  protecting  the 

879  Volume  5. 


6639.  CREDITORS'  SUITS.  6639. 

property  or  effects  of  said  defendant  Richard  Roe  so  assigned,  and 
placing  the  same  beyond  the  reach  of  your  orator's  said  judgment, 
and  enabling  the  said  dLtiQ-n^zxit  Richard  Roe  to  control  and  enjoy  the 
same,  and  the  avails  thereof,  or  to  hinder  or  delay  your  orator  in  the 
collection  of  his  debt  now  in  judgment  as  aforesaid;  and  that  so  it 
would  appear,  if  the  said  AQitndi.2iX\t  Richard  Roe  would  state  and  set 
forth  when  and  to  whom  such  sale,  transfer  or  assignment  was  made, 
and  what  was  the  amount  in  value  of  the  property  or  effects  so 
sold,  assigned  or  transferred,  and  what  were  the  terms  upon  which 
said  sale,  transfer  or  assignment  was  made,  and  what  disposition  has 
been  made  of  the  property  or  effects  so  sold,  assigned  or  transferred, 
and  in  whose  possession  the  same  now  is,  or  what  has  been  done  with 
the  avails  thereof.  And  your  orator  claims  a  full  and  complete  dis- 
covery of  all  such  property,  effects  and  things  in  action,  belonging  to 
the  said  defendant  Richard  Roe  and  of  all  trusts  whereby  any  prop- 
erty, debts  or  effects  are  held  for  the  use  or  benefit  of  the  said 
defendant  last  named,  and  of  every  sale,  assignment  or  transfer 
which  the  said  defendant  last  named  has  made  of  his  property,  debts 
or  other  effects,  and  of  the  person  or  persons  to  whom  such  sale, 
assignment  or  transfer  has  been  made;  the  amount  and  value  of  the 
property,  debts  or  other  effects  so  sold, assigned  or  transferred;  and 
the  trusts  and  other  conditions  upon  which  such  sale,  assignment  or 
transfer  was  made,  and  all  the  facts  and  circumstances  relating 
thereto;  and  particularly  what  is  the  situation  of  the  property, 
debts  or  other  effects  sold,  assigned  or  transferred,  at  the  time  of 
filing  this  your  orator's  bill  of  complaint. 

And  your  orator  further  shows  unto  your  honors,  that  he  has  reason 
to  believe,  and  does  believe,  that  the  said  defendant  last  named  has 
property  and  other  equitable  interests,  things  in  action  or  effects,  of 
the  value  of  more  than  ten  thousand  do\\a.rs,  exclusive  of  all  prior  first 
claims  thereon,  and  which  your  orator  has  been  unable  to  reach  by 
execution  on  said  judgment,  against  the  said  defendant  last  named; 
and  that  this  your  orator's  bill  of  complaint  is  not  exhibited  by 
collusion  with  the  said  defendant  or  with  any  other  person,  or  for  the 
purpose  of  protecting  the  property  or  effects  of  said  defendant 
Richard  Roe  against  the  claims  of  other  creditors,  but  for  the  sole 
purpose  of  compelling  payment  and  satisfaction  of  the  judgment  so 
as  aforesaid  recovered  by  your  orator  against  the  defendant  Richard 
Roe. 

And  your  orator  well  hoped  that  the  said  defendant  Richard 
Roe  would  have  paid  to  your  orator  the  amount  due  him  on  said 
judgment,  or  would  have  applied  for  that  purpose  any  property, 
money,  debts,  or  other  equitable  interest  or  things  in  action  belong- 
ing to  him,  or  in  which  he  is  in  any  way  interested,  as  in  equity  and 
good  conscience  he  ought  to  have  done. 

But  now,  so  it  is,  may  it  please  your  honors,  that  the  said  defend- 
ant, combining  and  confederating  together  with  divers  other  per- 
sons, to  your  orator  unknown,  but  whose  names,  when  discovered,  he 
prays  may  be  inserted  herein,  with  proper  and  apt  words  to  charge 
them,  and  contriving  how  to  injure  and  defraud  your  orator  in  the 
premises,  neglects  and  refuses  to  pay  the  amount  so  due  to  your  ora- 

880  Volume  5. 


6639.  CREDITORS'  SUITS.  6639. 

tor  on  his  said  judgment,  or  to  apply  for  that  purpose  any  property, 
money,  debts,  or  other  equitable  interest,  or  things  in  action  belong- 
ing to  the  said  defendant  Ric},iard  Roe^  and  for  reason  thereof 
the  said  defendant  sets  up  a  variety  of  unfounded  pretenses;  all  of 
which  actings,  doings,  neglects  and  pretenses  are  contrary  to  equity 
and  good  conscience,  and  tend  to  the  manifest  wroag  and  injury  of 
your  orator  in  the  premises. 

In  tender  consideration  whereof,  and  forasmuch  as  your  orator  is 
remediless  in  the  premises,  by  the  strict  rules  of  the  common  law, 
and  cannot  have  adequate  relief,  save  in  a  court  of  equity,  where 
matters  of  this  and  a  similar  nature  are  properly  cognizable  and 
relievable. 

To  the  end,  therefore,  that  the  said  defendant  may,  if  he  can, 
show  why  your  orator  should  not  have  the  relief  hereby  prayed,  and 
may,  upon  his  corporal  oath,  and  according  to  the  best  and  utmost 
of  his  knowledge,  remembrance,  information  and  belief,  full,  true, 
direct  and  perfect  answer  make  to  all  and  singular  the  matters  and 
things  hereinbefore  stated  and  charged,  and  particularly  to  such  of 
the  several  interrogatories  hereinafter  numbered  and  set  forth,  as  by 
the  note  hereunder  written  he  is  required  to  answer: 

That  is  to  say,  the  said  defendant  may  fully  set  forth  and  discover, 
according  to  the  best  of  his  knowledge,  remembrance,  information 
and  belief,  the  nature  and  situation,  amount  and  value  of  all  the 
property,  interest  and  effects  of  the  said  defendant  Richard  Roe, 
including  all  things  in  action  of  whatever  nature  or  kind,  with  all  the 
particulars  relating  thereto,  and  that  he  may  answer  and  state  whether, 
at  the  time  of  filing  this  your  orator's  bill  of  complaint,  he,  the  said 
defendant  had  not  debts  due  to  him  to  a  considerable  amount;  and 
if  so  that  he  may  state  particularly  the  amount  of  such  debts  re- 
spectively, and  from  whom  the  same  are  due,  and  what  security  is 
held  therefor;  and  also  that  he  may  state  which  and  what  amount 
of  said  debts  are  good  and  collectible,  and  what  amount  are  bad  or 
doubtful;  and  whether  at  the  time  of  filing  this  your  orator's  bill  of 
complaint  he  has  not  some  property,  real  or  personal,  in  law  or 
equity,  belonging  to  him,  or  held  in  trust  for  him,  or  in  which  he 
has  some  beneficial  interest  of  some  kind  or  description,  and  if  so 
that  he  may  state  and  set  forth  a  full,  true  and  particular  account 
thereof,  and  the  nature  and  value  of  his  interest  therein;  and  that 
he  may  also  state  whether  he  has  not  money  of  some  kind  in  his 
possession  or  under  his  control,  or  deposited  to  his  credit,  or  for  his 
use,  or  in  some  way  or  manner  held  for  his  use  and  benefit;  and  if  so, 
that  he  may  state  and  set  forth  particularly  the  amount  thereof,  and 
how  and  by  whom  the  same  is  held;  and  that  he  may  also  state 
whether  he  has  any  other  equitable  interest  or  thing  in  action,  or 
other  means  belonging  to  him,  or  in  which  he  is  in  any  way  inter- 
ested, whereby  he  could  pay  any  part  of  the  amount  so  as  aforesaid 
due  to  your  orator  upon  said  judgment  against  him,  to  your  orator. 

And  if  the  said  defendant  has  made  any  sale,  assignment  or  transfer 

of  his  property  and  effects,  or  any  part  thereof,  that  then  the  said 

defendant  may  state  and  set  forth  generally,  but  not  in  items,  what 

property  or  effects  have  been  so  sold,  assigned  or  transferred,  and 

5  E.  of  F.  P.  — 56.  881  Volumes. 


6639.  CREDITORS'  SUITS.  6639. 

the  value  thereof,  and  particularly  when  and  to  whom,  and  for  what 
purpose,  and  upon  what  terms  and  conditions,  such  sale,  assignment 
or  transfer  was  made,  and  what  has   been  done   under   such  sale, 
assignment  or  transfer,  and  what  has  been  done  with  the  property  or 
effects  so  sold,  assigned  or  transferred,  and  the  avails  thereof.     And 
that  the  said  defendant  may  specially  state  or  set  forth  whether  he 
has  sold,  assigned,  transferred,  or  in  any  other  manner  disposed  of 
the  whole  or  any  part  of  a  lot  of  twenty-Jive  one  thousand  dollar  unreg- 
istered four  per  cent,  bonds  of  the   United  States,  whose  further 
description  is  to  your  orator  unknown,  which  were  purchased  by 
said  defendant  from  Richard  Fen,  of  Chicago  aforesaid,  on  the  twelfth 
day  of  September,  in  the  year  of  our  Lord   one  thousand  eight  hun- 
dred and  ninety-seven;    and  if  so,   to  whom  he  has  sold,  assigned, 
transferred,  or  otherwise  disposed  of  said  bonds,  and  for  what  pur- 
pose, and  for  what  price,  consideration  or  other  thing,   and  what 
were  the  avails  of  such  sale,  assignment,  transfer  or  disposal,  both  in 
amount  and  nature,  and  whether  the  avails  aforesaid,  if  any,  have 
been  secreted  or  in  any  manner  transferred  or  disposed  of,  and  if  so, 
how,  and  to  whom,  and  for  what  purpose,  and  upon  what  considera- 
tion.    And  that  the  said  defendant  may  be  decreed    to  pay  your 
orator  the  amount  so  as  aforesaid  due  to  him  for  principal  and 
interest  on  his  said  judgment,  together  with  your  orator's  costs  and 
charges  in   this  behalf  sustained;    and   may  be  decreed    to  apply 
for  that  purpose  any  money  or  property,  real  or  personal,  in  law  or 
equity,  debts,  choses  in  action  or  equitable  interests  belonging  to 
said  ^titndsiwt  Richard  Roe,  or  held  iri  trust  for  him,  or  in  which 
he  in  any  way  or  manner  is  beneficially  interested;  and  that  the  said 
defendant  may  be  enjoined  and  restrained  from  selling,  assigning, 
transferring,  delivering,  negotiating,  discharging,  receiving,  collect- 
ing, incumbering,  or  in  any  way  or  manner  disposing  of,  or  inter- 
meddling with  any  debts  or  demands  due  to  him,  or  any  bills,  bonds, 
notes,  drafts,  checks,  book  accounts,  mortgages,  judgments,  or  other 
debts  due  to  him,  whether  in  his  possession,  or  held  by  some  other 
person  in  trust  for  him  or  to  his  use  or  benefit;   and  also  from  sell- 
ing, assigning,  transferring,  or  in  any  manner  incumbering  or  dis- 
posing of,  or  intermeddling  with  any  money  in  coin,  bank  bills,  drafts 
or  checks  belonging  to  him,  whether  in  his  possession,  or  held  by 
any  person  in  trust  for  his  use  or  benefit,  or  any  stock  or  interest 
in  any  private  or  incorporated  company,  or  any  property,   real  or 
personal,  things  in  action,  or  chattels  real  held  by  him,  or  by  any 
other  person  for  him,   or  in  which  he   has  any  interest  whatever, 
except  when  such  trust  has  been  created  by,  or  the  fund  so  held  in 
trust  has  proceeded  from,  some  person  other  than  the  said  defendant 
Richard  Roe. 

And  that  the  said  defendant  may  also  be  in  like  manner  prohibited 
from  making  any  assignment  of  his  property,  and  from  confessing 
any  judgment  for  the  purpose  of  giving  preference  to  any  other 
creditor  oyer  your  orator,  and  from  doing  any  other  act  to  enable 
other  creditors  to  obtain  his  property.  And  that  a  receiver  may  be 
appointed,  according  to  the  course  of  practice  in  this  court,  and  with 
the  usual  powers  of  receivers  in  like  cases,  of  all  the  property,  equi- 

888  Volume  5. 


6640.  CREDITORS'  SUITS.  6640. 

table  interests,  things  in  action  and  effects  of  the  said  defendant 
Richard  Roe. 

And  that  your  orator  may  have  such  further  or  such  other  relief 
in  the  premises  as  the  nature  of  his  case  shall  require,  and  as  shall 
be  agreeable  to  equity  and  good  conscience. 

May  it  please  your  honors  to  grant  unto  your  oratcJr  the  people's 
writ  of  injunction,  issuing  out  of  and  under  the  seal  of  this  honorable 
court,  to  be  directed  to  the  said  defendant  Richard  Roe.,  and  to  his 
counselors,  attorneys,  solicitors,  trustees  and  agents,  therein  and 
thereby  commanding  and  strictly  enjoining  the  said  defendant  and 
the  persons  before  mentioned,  in  manner  aforesaid. 

And  may  it  please  your  honors  to  grant  unto  your  orator  the  peo- 
ple's writ  of  summons,  issuing  out  of  and  under  the  seal  of  this  hon« 
orable  court,  to  be  directed  to  the  said  defendant  Richard  Roe., 
therein  and  thereby  commanding  him  on  a  certain  day  and  under 
a  certain  penalty,  to  be  therein  inserted,  that  he  personally  be  and 
appear  before  this  honorable  court,  on  the  first  day  of  the  next 
regular  term  thereof,  to  be  held  at  the  court-house,  in  the  county  of 
Cook  aforesaid,  the  second  dB.y  of  March  next,  then  and  there  to  answer 
all  and  singular  the  premises,  and  to  stand  to  and  abide  by  and  per- 
form such  order  and  decree  therein  as  to  your  honors  shall  seem 
agreeable  to  equity  and  good  conscience. 

And  your  orator  will  ever  pray,  etc. 

John  Doe. 

Mason  ^  Webster,  Complainant's  Solicitors. 
State  of  Illinois,  \ 
Cook  County.        \ 

On  this  twenty-first  day  of  February,  one  thousand  eight  hundred 
and  ninety-eight,  personally  came  before  me  John  Doe,  who,  being  duly 
sworn,  saith  that  he  is  the  complainant  and  your  orator  in  the  above 
bill  of  complaint;  that  he  has  read  the  foregoing  bill  of  complaint, 
and  knows  the  contents  thereof,  and  that  the  same  is  true  of  his  own 
knowledge,  except  as  to  the  matters  and  things  therein  stated  to  be 
upon  information  and  belief,  and  as  to  these  matters  he  believes  it  to 
be  true. 

John  Doe. 

Subscribed  and  sworn  to  before  me  this  twenty-first  day  of  Feb- 
ruary, A.  D.  iW8.  Abraham  Kent,  J.  P. 

2.  Dower  Interest  Not  Set  Off. 

Form  No.  6640.' 

To  the  Hon.  the  Justices  of  the  Superior  Court  within  and  for  the 
County  of  Worcester.  Sitting  in  Equity. 

1.  This  form  is  copied  from  the  record  13,  may  maintain  a  bill  in  equity  under 
in  the  case  of  McMahon  v.  Gray,  150  Mass.  Pub.  Stat.  (1882),  c.  151,  §  2,  cl. 
Mass.  289,  in  which  case  it  was  held  11,  as  amended  by  Stat.  (1884),  c.  284, 
that  the  creditor  of  a  widow  who  is  en-  to  reach  and  apply  in  payment  of  his 
titled  to  dower  which  has  not  been  as-  debt  her  right  to  have  her  dower  as- 
signed to  her,  and  who  is  in  occupation  signed  to  her  out  of  such  lands.  See 
of  the  lands  of  her  deceased  husband,  also  supra,  note  i,  p.  874. 
under  Mass.  Pub.  Stat.  (1882;,  c.  124,  § 

883  ,      Volume  5. 


664.1.  CREDITORS'  SUITS.  6641. 


Between 

Michael  F.  McMahon  and  John  Burns,  plaintiffs,  ^ 

and 

Catherine  Gray,  defendant. 

All  of  the  City  and  County  of  Worcester. 

1.  And  the  plaintiffs  say  that  the  defendant  and  John  F.  Gray 
made  a  promissory  note,  a  copy  of  which  is  hereto  annexed  marked 
A,  payable  to  the  order  of  the  plaintiffs.  And  the  defendant  owes 
the  plaintiffs  the  amount  of  said  note  and  interest  thereon. 

2.  Said  Catherine  Gray  is  the  wife  of  said  John  F.  Gray,  and,  before 
her  marriage  with  said  John  F.,  was  the  widow  of  one  Timothy  D. 
Leahy,  late  of  said  Worcester,  deceased;  that  said  Leahy  died  seised  in 
fee  of  the  following  described  real  estate  situated  in  said  Worcester. 
{Jlere  folloxved  a  description  of  the  land.  )^ 

3.  Said  Timothy  D.  Leahy  died  intestate,  leaving  this  defendant, 
Catherine  Gray,  as  his  widow. 

Said  Catherine  was  at  the  time  of  the  death  of  said  Leahy,  and  now 
is,  entitled  to  dower  in  said  real  estate,  and  to  have  the  same  assigned 
to  her,  but  the  same  has  never  been  assigned  to  her,  and  no  petition 
has  ever  been  filed  by  any  person  entitled  so  to  petition  to  have  said 
dower  interest  of  said  Catherine  assigned  to  her,  and  said  Catherine 
has  been  ever  since  her  said  husband  Leahy's  death,  and  is  now,  in 
occupation  of  said  estate. 

4.  The  said  dower  interest  of  said  defendant  Catherine  cannot  be 
come  at  to  be  attached  or  taken  on  execution. 

Wherefore  said  plaintiffs  pray  that  said  interest  and  right  of  said 
defendant  Catherine  to  have  dower  assigned  to  her  out  of  said  real 
estate  may  be  applied  in  payment  of  said  plaintiffs'  debt,  and  that  a 
receiver  may  be  appointed  with  authority  to  petition  in  said  defend- 
ant Catherine  s  name  to  have  said  dower  assigned  and  to  receive  the 
rents  and  profits  thereof,  and  for  other  and  further  relief,  and  that 
she  may  be  enjoined  from  conveying  or  disposing  of  her  said  right 
and  interest,  and  that  a  subpoena  may  be  issued  to  her  to  appear  and 
answer  hereto.  By  their  Attorneys, 

Verry  6"  Gaskill. 

8.  Judg-ment  Standing-  in  Favor  of  Debtor. 

Form  No.  6641.' 

To  the  Honorable  the  Justices  of  the  Supreme  Judicial  Court,  sitting 
in  Equity  for  the  County  of  Worcester, 
Complains  Welcome  A.  Thayer  oi  Blackstone,  in  said  county,  against 

1.  The  land  was  described  as  follows,  erly  by  land  now  or  late  oi  John  P.  Pond 

to  wit:  y8  feet,    more  or  less;  easterly  by  land 

"A  certain  tract  of  land  situated  on  of  Mason  H.   Morse  41  feet;  northerly 

Ward  street  in    said  Worcester,    being  by  land  now  or  formerly  of  said  Arro- 

the  southerly  part   of    tfie  parcel   con-  ^?«>r  6/ feet,  more  or  less,  and  the  same 

veyed    to    T.   Arroquier  by  Mason  H.  conveyed  to  Z^-a/^j  by  said  ^rr^Ji^wzVr  by 

Morse,  by  deed   dated   March  s,  1869,  deed  dated  y4/r?7/2.  1869,  recorded  with 

and  bounded  and  described  as  follows,  the  Worcester  County  Deeds.  Book  787, 

^°  w'^:  Page  432." 

Westerly  hy  Ward  street  s^  feet;  south-        2.  This  form  is  copied  from  the  rec- 

884  Volume  5. 


6641.  CREDITORS'  SUITS.  664-1. 

John  M.  Daniels  of  Mendon^  in  said  county,  and  Mahlon  M.  Daniels  of 
Blackstone^  in  said  county,  and  shows  that  by  the  consideration  of  our 
justices  of  the  Superior  Court,  holden  at  Worcester  on  the  tenth  day  of 
December^  a.  d.  i87j2,  he  recovered  judgment  against  the  said  John  M. 
Daniels  for  the  sum  of  seven  hundred  and  seven  and -thirty-seven  one- 
hundredths  dollars  debt  or  damage  and  one  hundred  and  three  and 
twelve  one-hundredths  dollars  costs  of  suit,  which  judgment  has  been 
satisfied  in  part  only,  to  wit,  in  the  sum  of  one  hundred  and  eighteen  and 
forty-eight  one-hundredths  dollars,  and  that  he,  the  said  plaintiff,  is  a 
creditor  of  the  saixd  John  2M.  Daniels  \x\  the  snxn  oi  six  hundred  and 
ninety-two  and  eleven  one-hundredths  dollars  and  interest  from  the  date 
of  said  judgment  to  the  time  of  filing  this  bill. 

And  your  orator  further  shows  that  said  John  M.  Daniels  has  not 
any  property  which  can  be  come  at  to  be  attached  or  taken  in  execu- 
tion for  the  payment  of  said  judgment  debt. 

And  your  orator  further  shows  that  %^\A  Mahlon  M.  Daniels  \s  in- 
debted to  the  said  John  M.  Daniels  in  the  sum  of  about  two  hundred 
dollars  damage  and  costs  of  suit,  to  wit,  in  about  the  sum  of  eighty 
dollars  debt  or  damage  and  one  hundred  and  twenty  dollars  costs  of 
suit,  for  which  sums  judgment  has  been  rendered  in  our  said  Superior 
Court,  but  no  execution  has  been  issued  on  said  judgment,  which 
sums  cannot  be  reached  by  your  orator  by  the  ordinary  trustee 
process  or  by  any  process  of  the  common  law. 

And  your  orator  further  shows  that  said  John  M.  Daniels  is  about 
to  take  out  execution  on  said  judgment  so  recovered  by  him  and  to 
collect  the  same  of  the  said  Mahlon  M.  Daniels  for  his  own  use,  and 
does  not  intend  to  apply  the  same  to  the  payment  of  the  plaintiff's 
demand. 

All  of  which  actings  and  doings  are  contrary  to  equity  and  tend  to 
the  manifest  wrong  and  injury  of  your  orator  in  the  premises.  In 
consideration  whereof,  and  forasmuch  as  your  orator  can  only  have 
adequate  relief  in  the  premises  in  a  court  of  equity,  where  matters 
of  this  nature  are  properly  cognizable  and  relievable. 

Wherefore  your  orator  prays  that  a  writ  of  subpoena  may  issue  re- 
quiring said  John  M.  Daniels  to  appear  and  answer  hereto,  but  not 
under  oath,  which  is  waived,  and  that  said  Johti  M.  Daniels,  his 
attorneys,  agents,  servants,  etc.,  may  be  enjoined  from  taking  out 
execution  on  said  judgment  against  said  Mahlon  M.  Daniels,  and  from 
collecting  said  judgment  debt  and  cost  for  his  own  use;  and  that  said 
Mahlon  M.  Daniels  may  be  enjoined  from  paying  said  judgment  debt 
and  cost  to  the  said  John  M.  Daniels,  or  to  any  other  person  except 
on  the  order  of  this  court,  and  may  be  decreed  to  pay  said  judgment 
debt  and  cost  to  the  plaintiff  in  part  satisfaction  of  the  balance  due 
the  plaintiff  as  aforesaid  from  the  said  John  M.  Daniels,  and  that  your 

ord  in  the  case  of  Thayer  v.  Daniels,  attorney  at  law,  had  also  a  lien  upon  it 

113  Mass.  129,  in  which  case,  however,  for  fees  and  disbursements  for  prose- 

the  bill  was  dismissed,  as  the  master  to  cuting  the  suit  in  which  it  was  obtained 

whom  the  case  was  referred  found  that  to    final   judgment.      For   the  present 

the  judgment  had  been   assigned   for  form  of  a  bill  in  equity  in  Massachusetts 

valuable  consideration  before  the  filing  see  vol.  4,  Form  No.  4273. 
of  the  bill,  and  that  one  Burgess,  an        See  also  supra,  note  i,  874. 

885  Volume  5. 


6642.  CREDITORS'  SUITS.  6642. 

orator  may  have  such  other  and  further  relief  as  to  your  honors  shall 
seem  meet. 

Welcome  A.  Thayer. 

Worcester,  ss.  Feb.  18,  i875. 

Then  personally  appeared  Welcome  A.  Thayer  and  made  oath  that 
the  allegations  aforesaid  are  true  to  the  best  of  his  knowledge  and 
belief.  Before  me, 

T.  G.  Kent,  J.  P. 

T.  G.  Kent,  Complainant's  Solicitor. 

4.  Patent-right. 

Form  No.  6642.' 

Commonwealth  of  Massachusetts. 
Suffolk,  ss.  In  Equity. 

John  C.  Wilson  ) 

Martin-  Wilson  Automatic  Fire  Alarm  Co.  ) 

To  the  Honorable  the  Justices  of  the  Superior  Court  within  and  for 
the  County  of  Suffolk. 

The  complainant  shows  unto  your  honors  that  the  respondent 
company  owes  him  one  thousand  dollars  for  services  as  treasurer  and 
electrician  for  the  year  \2>86,  and  the  respondent  has  admitted  the 
complainant's  claim,  and  has  often  promised  to  pay  the  same.  And 
the  complainant  has  made  diligent  search  but  has  been  unable  to  dis- 
cover any  goods  or  estate  of  the  respondent  which  can  be  come  at 
to  be  attached  to  secure  the  complainant's  claim,  all  the  goods  and 
chattels  of  the  respondent  in  this  commonwealth  having  been  attached 
for  more  than  their  value,  to  secure  claims  of  other  creditors  of  the 
respondent.  But  the  respondent  is  the  owner  of  certain  letters 
patent  of  the  United  States  for  fire  alarm  apparatus,  numbered  as 
follows,  viz.,  156,560;  266,706;  272,893;  329,468;  329,469;  329,470; 
341,114;  341,115;  342,114;  360,968;  and  certain  inventions  or 
improvements  in  such  apparatus  made  by  Morris  Martin,  and  by  him 
assigned  to  the  respondent,  he  having  made  application  for  letters 
patent  of  the  United  States  therefor. 

The  complainant  further  shows  unto  your  honors  that  the  respond- 
ent has,  by  vote,  authorized  the  sale  of  said  patent  and  patent-rights, 
and  that  its  officers  are  about  to  sell  the  same  at  public  auction  in 
said  Boston. 

All  which  actings,  doings,  refusals  and  pretenses  are  contrary  to 
equity  and  good  conscience,  and  tend  to  the  manifest  wrong  and 
injury  of  your  orator  in  the  premises. 

In  consideration  whereof,  and  forasmuch  as  your  orator  is  reme- 
diless at  and  by  the  strict  rules  of  the  common  law,  and  cannot  have 

1.   This    form    is    copied    from    the     patent  by  a  master  might  be  ordered, 
record  in  the  case  of  Wilson  v.  Martin-     under  Mass.  Stat.  (1884),  c.  285,  §  i,  to 
Wilson  Automatic  Fire  Alarm  Co.,  151     satisfy  the  debt.     See  also  supra,  note 
Mass.  515,  in  which   case  it  was  held     i,  p.  874. 
that  a  sale  and  conveyance  of  letters 

886  Volume  5. 


6643.  CREDITORS'  SUITS.  6643. 

adequate  relief  save  in  a  court  of  equity,  where  matters  of  this  and 
like  nature  are  properly  cognizable  and  relievable. 

To  the  end,  therefore,. that  the  said  defendant  may,  if  it  can,  "show 
why  your  orator  should  not  have  the  relief  hereby  prayed,  and  may, 
according  to  the  best  and  utmost  of  its  knowledge,  remembrance, 
information  and  belief,  full,  true,  direct  and  perfect  answer  make  to 
all  and  singular  the  matters  aforesaid,  but  not  upon  oath  or  affirma- 
tion, the  benefit  whereof  is  expressly  waived  by  your  orator. 

Your  orator  prays  as  follows:  that  his  said  claim  may  be  estab- 
lished, and  that  a  receiver  may  be  appointed  to  take  possession  of 
said  letters  patent  and  patent-rights,  and  to  sell  the  same  and  apply 
the  proceeds  to  the  satisfaction  of  your  orator's  claim. 

May  it  please  your  honors  to  grant  unto  your  orator,  not  only  a 
writ  of  injunction  issuing  out  of  and  under  the  seal  of  this  honorable 
court,  to  be  directed  unto  the  said  Martin-  Wilson  Automatic  Fire  Alarm 
Company^  its  officers,  agents  and  servants,  to  restrain  it  and  them, 
and  each  of  them,  from  selling  or  interfering  ift  any  manner  with  let- 
ters patent  of  the  United  States  numbered  156,560\  266,706;  372,- 
893;  329,468;  329,469;  329,470;  341,114;  341,115;  342,114;  360,968; 
and  inventions  and  patent-rights  assigned  to  the  respondent  by  Mor- 
ris Martin,  but  also  a  writ  or  writs  of  subpoena,  to  be  directed  to  the 
said  Martin-  Wilson  Automatic  Fire  Alarm  Company,  thereby  command- 
ing it  at  a  day  certain, and  under  a  certain  penalty  therein  to  be  limited, 
personally  to  be  and  appear  before  this  honorable  court,  and  then 
and  there  full,  true,  direct  and  perfect  answers  make  to  all  and 
singular  the  premises,  and  further  to  stand  to,  perform  and  abide 
such  further  order,  direction  and  decree  therein  as  to  this  honorable 
court  shall  seem  meet. 


Frank  T.  Benner,  Solicitor. 

( Verification  as  in  Form  No.  6641-^ 


John  C.  Wilson. 


6.  Property  in  Name  of  Another  where  Purchase  Money 
was  Furnished  by  Debtor.^ 

-  Form  No.  6643.* 

To  the  Supreme  Judicial  Court.  In  Equity. 

Hiram  W.  Berry,  of  Casco,  in  the  county  of  Oxford  and  state  of 
Maine,  administrator  of  the  estate  of  John  Berry,  late  of  said  Casco, 
deceased,  complains  against  Albion  K.  P.  Berry  and  Lizzie  T.  Berry, 
his  wife,  both  of  Casco  in  said  county  and  state,  and  says: 

I.  That  at  the  September  term,  a.  d.  x%75,  of  this  court,  to  wit,  on 
the  eighteenth  day  of  September,  A.  D.  \W7,  the  same  being  one  of  the 

1.  For  the  substance  of  a  bill  to  reach  the  case  of  Berry  v.  Berry,  84  Me.  541, 
promissory  notes  belonging  to  the  in  which  case  a  decree  in  favor  of  the 
debtor,  an  insurance  company,  but  held  plaintiff,  rendered  by  the  single  justice 
by  another  who  is  its  agent,  see  Sillo-  who  heard  the  cause  in  the  court  be- 
way  V.  Columbia  Ins.  Co.,  8  Gray  low,  was  affirmed  on  appeal.  See  also 
(Mass.)  199.  supra,  note  i,  p.  874. 

2.  This  bill  is  based  upon  the  facts  in 

887  Volume  5. 


6643.  CREDITORS'  SUITS.  6643. 

regular  days  of  said  term,  the  said  John  Berry  recovered  a  judgment 
against  the  said  defendant,  Albion  K.  P.  Berry,  for  the  sum  of  six 
hundred  and  nine  dollars  and  twelve  cents  for  the  damages  which  he 
had  sustained  and  the  costs  of  suit  and  charges  of  plaintiff  by  him 
about  his  suit  in  that  behalf  expended,  as  by  the  record  of  the  said 
judgment  in  the  office  of  the  clerk  of  said  court,  reference  being 
thereto  had,  and  to  which  for  greater  certainty  plaintiff  prays  leave 
to  refer,  will  more  fully  and  at  large  appear. 

2.  That  the  said  judgment  recovered  in  manner  aforesaid  remain- 
ing in  full  force  and  effect,  and  the  costs,  charges  of  suit  and  damages 
aforesaid  unpaid  and  unsatisfied,  plaintiff,  on  the  twentieth  day  of 
September,  A.  D.  i87J,  for  the  purpose  of  obtaining  satisfaction  of  said 
judgment,  sued  and  procured  out  of  said  court  a  writ  of  fieri  facias 
directed  to  the  sheriff  of  said  county  of  Oxford,  by  which  said  writ 
said  sheriff  was  commanded  that  of  the  goods,  chattels,  lands  and 
tenements  of  the  defendant,  Albion  K.  P.  Berry,  in  his  county,  he 
cause  to  be  made  the  sum  of  six  hundred  and  nine  dollars  and  twelve 
cents,  which  plaintiff  in  said  court  recovered  against  said  defendant, 
Albion  K.  P.  Berry,  and  that  he  should  have  the  money  at  the  clerk's 
office  of  said  court  at  Casco,  in  said  county,  in  thirty  days  from  the 
date  thereof,  to  satisfy  the  judgment  so  recovered  by  plaintiff  as 
aforesaid,  and  that  he  should  have  then  and  there  that  writ. 

3.  That  said  writ  of  fieri  facias  was  afterward,  to  wit,  on  the 
twenty-first  day  of  September,  a.  d.  i875,  delivered  to  said  sheriff  to 
be  executed  in  due  form  of  law.  and  that  said  sheriff,  on  the  twenty- 
first  day  of  October,  a.  d.  i875,  returned  said  writ  to  him  in  that 
behalf  directed  and  delivered  as  aforesaid,  that  after  due  search  he 
had  been  unable  to  find  within  said  county  of  Oxford  any  goods, 
chattels,  lands  or  tenements  of  the  said  Albion  K.  P.  Berry  whereof 
the  said  judgment  and  execution,  or  any  part  thereof,  could  be  made, 
as  by  the  said  writ  of  fieri  facias,  and  the  return  of  the  said  sheriff 
indorsed  thereon,  as  aforesaid,  now  on  file  in  the  office  of  the  clerk 
of  said  court,  reference  being  thereto  had,  and  to  which  for  greater 
certainty  plaintiff  prays  leave  to  refer,  will  more  fully  and  at  large 
appear. 

4.  That  afterward,  to  wit,  on  the  M/></day  oi  January,  a.  d.  \^80, 
the  said  John  Berry  died  intestate,  and  that  at  a  term  of  the  Probate 
Court  held  at  Casco,  within  and  for  said  county  of  Oxford,  on  the 
second  Monday  of  February,  a.  d.  \^80,  the  said  Hiram  W.  Berry  was 
duly  and  legally  appointed  administrator  upon  the  goods  and  estate 
of  the  said  John  Berry,  and  thereupon  accepted  said  trust  and  quali- 
fied by  giving  bond,  as  the  law  directs. 

5.  That  said  judgment  so  recovered  by  said  John  Berry  as  afore- 
said still  remains  in  full  force  and  effect,  not  reversed  or  satisfied,  or 
otherwise  vacated,  and  that  the  said  defendant,  Albion  K.  P.  Berry, 
has  not  paid  same  to  the  said  John  Berry,  nor  to  plaintiff  as  admin- 
istrator of  the  goods  and  estate  of  the  said  John  Berry,  but  has 
hitherto  wholly  neglected  and  refused  so  to  do. 

6.  That  on  the  third  ^d^y  of  May,  a.  d.  \%83,  the  said  Albion  K.  P. 
Berry  contracted  for  and  purchased  a  farm  of  John  J.  Holman  of 
Dixfield  in  the  county  of  Oxford,  to  wit :     The  farm  on  which  the 

888  Volume  5. 


6644.  CREDITORS'  SUITS.  6644. 

said  Albion  K.  P.  Berry  now  resides  with  his  family  (dcsc  ibing  farni), 
for  the  consideration  of  twelve  hundred  dollars,  and  then  and  there 
paid  the  said  John  J.  Holvian  the  sum  of  nine  hundred  dollars  for  the 
same  farm  with  his  own  money,  or  caused  and  furnished  the  money 
to  be  so  paid,  and  then  and  there  caused  the  said  real  estate  to  be 
conveyed  by  said  John  J.  Holman  to  said  Lizzie  T.  Berry,  who  then 
was,  ever  since  has  been,  and  now  is  the  lawful  wife  of  said  Albion 
K.  P.  Berry,  with  intent  to  cheat  and  defraud  the  said  plaintiff  in 
his  said  capacity  of  his  said  debt  or  judgment,  and  she,  the  said  Lizzie 
T.  Berry,  well  knowing  the  premises,  but  intending  to  aid  her  said 
husband  in  so  cheating  and  defrauding  the  plaintiff,  and  then  having 
no  property  of  her  own,  gave  her  promissory  note  to  said  John  J. 
Holman  for  the  sum  of  three  hundred  dollars,  and  a  mortgage  of  said 
real  estate  to  secure  the  same,  as  the  balance  of  the  consideration  of 
said  purchase. 

7.  That  on  the  tenth  day  of  September,  a.  d.  \^S,  a  second  writ  of 
execution  was  issued  on  said  judgment,  which  was  put  into  the  hands 
of  Oscar  F.  Trask,  an  officer  duly  qualified  to  serve  the  same,  who 
afterward  returned  the  same  unto  said  court  in  no  part  satisfied, 
with  his  indorsement  thereon  that  he  was  unable  to  find  any  goods 
or  estate  of  the  said  debtor  in  his  precinct  wherewith  to  satisfy  the 
same. 

And  whereas  your  petitioner  has  no  remedy  at  law  by  which  he 
can  obtain  the  interest  of  said  Albion  K.  P.  Berry  in  said  real  estate 
to  satisfy  his  judgment  and  execution,  he  prays  that  he  may  be  heard 
in  equity,  and  that  the  court  will  decree  a  conveyance  of  so  much  of 
said  real  estate  as  may  be  necessary  for  the  payment  of  said  execution 
and  judgment,  in  case  it  shall  be  ascertained  that  said  mortgage  is 
paid,  or  decree  that  the  right  of  redeeming  the  same  real  estate  from 
said  mortgage  may  be  levied  upon  and  sold  at  auction.  And  your 
orator  prays  for  such  other  and  further  decrees  as  to  the  court  may 
seem  just  and  proper  in  the  premises. 

Hiram  W.  Berry. 

Jeremiah  Mason, 

Attorney  of  Complainant  in  Equity. 

(  Verification.y- 

Form  No.  6644.* 

Norfolk,  ss. 

Timothy  Bresnihan  ) 

vs.  >  Supreme  Judicial  Court. 

John  Sheehan  and  Ellen  Sheehan.  ) 

Bill  of  Complaint. 
To  the  Honorable  the  Justices  of  the  Supreme  Judicial  Court,  next  to 
be  holden  sX  Dedham,  within  and  for  the  County  oi  Norfolk,  sit- 
ting in  Equity. 
Respectfully  represents  to  your  honors  Timothy  Bresnihan  of  Wey- 
mouth, in  said  county. 

1.  For  the  form  of  verification  of  a  2.  This  form  is  copied  from  the  rec- 
bill  in  equity  in  Maine  see  the  title  ord  in  the  case  of  Bresnihan  v.  Shee- 
BiLLS  IN  Equity,  Form  No.  4271.  han,  125  Mass.  11,  in  which  case  it  was 

889  Volume  5. 


6644.  CREDITORS'  SUITS.  6644. 

First  —  That  one.  John  Sheehan,  of  said  Weymouth,  is  justly  and 
truly  indebted  to  him  in  the  sum  oi  seven  hundred  and  thirty  ^oWaxs 
for  board  furnished  by  him  to  said  respondent  and  his  minor  son, 
John  Sheehan,  Jr.,  according  to  the  account  hereto  annexed, 
marked  A. 

Second  —  That,  as  your  orator  is  informed  and  believes,  sdiXd.  John 
Sheehan,  previous  to  the  contracting  of  said  indebtedness,  was  for  a 
long  time  constantly  employed,  and  earned  and  received  large  sums 
of  money. 

Third  —  That  while  so  employed  and  receiving  regularly  said 
moneys,  said  John  Sheehan  deposited  all  his  wages  with  his  wife,  Ellen 
Sheehan,  said  other  respondent,  for  safe  keeping,  after  expending 
such  part  thereof  as  was  needed  for  the  family  temporary  expendi- 
tures; and  in  justice  and  equity  to  be  applied  to  the  payment  of  his 
indebtedness. 

Fourth  —  That  from  said  surplus,  from  time  to  time  deposited  in 
the  Savings  Bank  by  the  said  Ellen  without  the  knowledge  of  her  said 
husband,  in  her  own  name,  a  large  sum,  to  wit:  a  thousand  dioWdiVs, 
accumulated,  which,  without  the  knowledge  or  assent  of  the  sdiid  John 
Sheehan,  she  used  in  the  purchase  of  a  certain  piece  of  real  estate, 
using  these  said  funds  to  make  part  payment  therefor,  and  in  part 
other  moneys  borrowed  by  her  on  her  sole  credit,  the  same  described 
in  the  deed  hereto  annexed,  marked  B,  the  record  title  of  which  the 
said  Ellen  took  and  held  in  her  own  name,  and  still  holds. 

Fifth  —  That  as  your  orator  is  informed  and  believes,  saad  John 
Sheehan  has  no  other  property  than  that  so  deposited  with  said  Ellen, 
and  after  full  and  diligent  inquiry,  they  aver  that  he  has  none  that 
can  be  come  at  to  be  attached,  or  taken  on  execution  in  a  suit  at  law, 
against  said  debtor. 

Wherefore,  inasmuch  as  your  orator  is  ignorant  whether  the  said 
Ellen  still  retains  in  her  hands  said  moneys  so  deposited  with  her  by 
said  John  Sheehan,  and  if  so,  in  what  form,  or  has  used  it  for  the 
purchase  of  said  real  estate,  which  as  above  averred  upon  informa- 
tion, your  orator  believes  to  be  true;  and  if  correctly  informed,  as 
he  is  advised  that  said  estate  was  not  purchased,  or  directly  or  indi- 
rectly paid  by  said  debtor,  having  the  record  title  conveyed  to  said 
Ellen,  with  intent  to  defeat,  delay  or  defraud  your  orator  or  any 
other  creditor,  or  on  a  trust  for  him,  said  debtor,  express  or  implied, 
whereby  he  is  entitled  to  a  present  conveyance  from  said  Ellen. 

And  is  also  advised  that  he  can  only  reach  said  debtor's  property, 
and  rights  of  property  before  referred  to,  by  the  aid  of  a  court  of 
equity,  wherein  matters  of  this  nature  are  cognizable  under  and  by 
virtue  of  chapter  113,  §  2,  Gen.  Stat. 

To  the  end,  therefore,  that  said  defendants  may  full,  true,  direct 

held  that  if  a  wife,  without  her    hus-  in  the  land,  to  reach  and  apply  which, 

band's  knowledge  or  assent,  deposits  in   payment  of  his  debt,  a  creditor  of 

his  wages,  placed  in  her  hands  for  safe  the   husband   may,   under    Gen.    Stat, 

keeping,  in  a  savings  bank,  and  uses  (i860),  c.  113,  §  2,  c.  ii,  maintain  a  bill  in 

the  deposit  with  money  of  her  own  in  equity  against  him  and  his  wife.     For 

the  purchase  of  land,  the  title  to  which  the  present  form  of  the  bill  in  Massa- 

she  takes  and  holds  in  her  own  name,  chusetts  see  vol.  4,  Form  No.  4273. 
the  husband  has  an  equitable  interest        See  also  supra,  note  i,  p.  874. 

890  Volume  5. 


6645.  CREDITORS'  SUITS.  6645. 

and  perfect  answer  make  to  all  and  singular  the  charges  and  matters 
aforesaid,  and  more  especially  that  they  may  discover  and  set  forth 
whether  the  said  John  Sheehan  did  not  deposit,  from  time  to  time,  all 
his  earnings  and  moneys  with  said  Ellen  Sheehan,  as  hereinbefore 
averred,  and  if  so,  to  what  amount;  and  will  also  discover  and  set 
forth  whether  the  said  Ellen  now  holds  said  funds  as  deposited,  or 
what  use  or  disposal  was  made  of  the  same;  also  whether  said  parcel 
of  real  estate  was  not  purchased  as  alleged,  and  is  not  now  so  held  by 
said  Ellen,  answer  under  oath  being  hereby  waived.  And  to  the  end 
that  the  property  of  said  John  Sheehan  in  the  hands  of  said  Ellen  Shee- 
han, or  so  much  thereof  as  is  necessary,  may  be  applied  to  the  pay- 
ment of  the  debt  that  your  complainant  proves  due  him  from  said 
John  Sheehan;  and  that  for  this  purpose  the  said  respondent,  Ellen 
Sheehan,  may  be  required  to  transfer,  assign,  convey,  and  deliver  up 
to  some  suitable  person  to  be  appointed  by  this  honorable  court  to 
receive  and  sell  the  same,  or  so  much  of  the  estate  and  property  of  the 
said  John  Sheehan  in  her  possession,  as  may  suffice  to  satisfy  the 
adjudged  debt  of  your  orator,  and  the  costs  of  this  suit. 

And  till  such  payment  or  satisfaction,  that  the  said  Ellen  Sheehan 
may  be  enjoined  from  paying  out,  transferring,  conveying  or  passing 
away  any  of  the  property  of  the  said  John  Sheehan  in  her  hands,  or 
the  property  alleged  to  be  purchased  therewith,  except  in  liquidation 
of  your  orator's  said  debt. 

May  it  please  your  honors  to  grant  unto  your  orator,  not  only  the 
writ  of  injunction  restraining  the  said  defendants  as  aforesaid,  but 
also  a  writ  of  subpoena,  commanding  the  said  defendants  at  a  day  cer- 
tain to  be  and  appear  before  this  honorable  court,  and  to  stand  to, 
perform  and  abide  such  order,  direction  and  decree  as  your  honors 
may  make  in  the  premises.  Timothy  Bresnihan. 

By  his  Attorney  —  W.  E.  Je^velL 

6.  Royalty  Payable  Under  a  Publisher's  Contract, 

Form  No.  6645.' 

Commonwealth  of  Massachusetts. 

Supreme  Judicial  Court. 

Suffolk,  ss.  In  Equity. 

George  W.  T.  Lord  et  als. 

vs. 

Bret  Harte  et  als. 

Bill  of  Complaint. 

George  W.   T.  Lord,  Samuel  Lord,  Jr.,  and  Thomas   Varleer,  all   of 

the  state,  county  and  city  of  Nerv  York,  and  doing  business  in  said 

city  as  partners  under  the  firm  name  of  Lord  6^  Taylor,  bring  this 

1.  This  form  is  copied  from  the  rec-  agree  to  pay  to  the  debtor  a  royalty 
ord  in  Lord  v.  Harte,  118  Mass.  271,  in  upon  the  price  of  each  book  sold  by 
which  case  it  was  held  that  a  creditor  them,  to  account  with  him  semi- 
may  maintain  a  bill  in  equity  to  reach  annually,  and  to  pay  him  the  amounts 
and  apply,  to  the  payment  of  the  debt,  then  found  to  be  due,  if  the  amount 
money  due  and  afterward  accruing  to  due  at  the  time  of  filing  the  bill  is  not 
the  debtor,  from  a  contract  of  the  latter  sufficient  to  satisfy  the  debt. 
with  book   publishers,  by   which   they         See  also  supra,  note  i,  p.  874. 

891  Volume  5. 


6645.  ,      CREDITORS'  SUITS.  6645. 

their  bill  against  Bret  Harie,  of  Morristown  in  the  state  of  New 
Jersey^  and  James  R.  Osgood^  John  S.  Clark  and  Benjamin  H.  Ticknor, 
all  of  Boston  in  said  commonwealth,  and  doing  business  in  said  Boston 
under  the  firm  name  of  J.  R.  Osgood  &'  Co.,  equitable  trustees  for 
said  Harte;  and  thereupon  your  orators  complain  and  say, — 

First.  That  in  the  year  a.  d.  i87^  they  brought  suit  for  certain 
causes  of  action  against  the  said  Harte,  in  the  Superior  Court  of 
said  city  of  New  York,  and  by  the  consideration  of  the  justices  of 
said  court  recovered  judgment  against  him  for  the  sum  of  eleven  hun- 
dred fifty  three  and  seventy-six  one-hundredths  dollars,  all  of  which  is 
more  fully  shown  in  an  exemplified  copy  of  the  judment  roll  of 
said  court,  to  which  your  orators  crave  leave  to  refer,  and  which  they 
will  produce  at  the  hearing  in  this  cause. 

Second.  That  said  judgment  remains  wholly  unpaid  and  unsatis- 
fied at  the  filing  of  this  bill,  and  that  said  Harte  owes  your  orators 
the  amount  thereof  with  interest. 

Third.  And  your  orators  further  say,  that  the  said  Harte  is  an 
author  of  some  reputation,  and  has  written  works  in  prose  and  poetry 
which  have  been  collected  and  published  in  several  volumes,  and 
have  a  large  and  extended  sale  in  the  United  States  and  elsewhere; 
that  among  the  works  so  published  are  the  following;  to  wit, — 

(a)  A  volume  of  stories  and  sketches  entitled  "  The  Luck  of  Roar- 
ing Camp."  (b)  A  volume  of  similar  characters  entitled  ^^ Mrs. 
Scagg's  Husbands."  (c)  A  volume  of  stories  entitled  '■'■Condensed 
Nai'els."  (d  and  e)  Two  volumes  of  poems,  the  copyrights  whereof 
under  the  laws  of  the  United  States  are  of  value. 

Fourth.  And  your  orators  further  say,  that  the  said  works  have 
been  published  and  sold,  and  are  now  being  published  and  offered 
for  sale,  in  many  different  editions,  by  the  defendants  Osgood,  Clark 
and  Ticknor. 

Fifth.  And  your  orators  are  informed  and  believe,  and  therefore 
upon  their  said  information  and  belief  aver,  that  the  sole  right  to 
publish  and  sell  said  works  belongs  to  the  said  Osgood,  Clark  and 
Ticknor;  that  the  copyrights  thereof  were  taken  in  their  name  or 
assigned  to  them  by  or  with  the  consent  of  the  said  Harte,  in  con- 
sideration of  certain  contracts  between  them,  which  contracts  are 
now  in  existence  and  are  substantially  as  follows;  to  wit,  that  in  con- 
sideration of  their  becoming  the  owners  of  said  copyrights  the  said 
Osgood,  Clark  and  Ticknor  shall  publish  and  sell  copies  of  the  said 
works,  as  may  be  advantageous,  during  the  continuance  of  said  copy- 
rights, and  out  of  such  sales  shall  pay  to  the  said  Harte  the  sum  of 
ten  per  centum  upon  the  retail  price  of  each  book,  by  way  of  royalty 
or  compensation,  for  the  authorship  thereof;  that  in  said  contract  it 
is  provided  that  an  account  shall  be  stated  between  ^dJiA  Osgood  !s' 
Co.  and  the  said  Harte  twice  each  year;  to  wit,  in  the  months  oiMay 
and  November,  and  upon  said  statements  the  amounts  found  to  be 
due  said /^ar/^  are  then  payable  to  him  under  the  contracts. 

Sixth.  And  your  orators  are  further  informed  and  believe,  and 
therefore  upon  their  said  information  and  belief  aver,  that  since  the 
existence  of  said  contracts  the  said  Harte  has  received  under  them 
each  year,  as  royalty  upon  the  sale  of  his  works,  a  large  sum  of 

892  Volume  5. 


6645.  CREDITORS'  SUITS.  6645. 

money,  to  wit,  more  than  the  amount  of  his  debt  to  your  orators; 
that  the  sale  of  said  works  continues  to  be  large,  and  that  the  inter- 
est of  the  said  Harte  therein  is  likely  to  be  valuable  in  the  future. 

Seventh.  And  your  orators  say  that  the  interest  of  said  Harte  in 
the  contracts  above  mentioned  cannot  be  come  at  to  be  attached  or 
taken  on  execution  in  a  suit  at  law  against  said  Harte. 

And  the  plaintiffs  further  aver  upon  their  information  and  belief, 
that  the  amount  of  money  due  upon  a  proper  accounting  (if  anything) 
from  Osgood  cr*  Co.  to  said  Bret  Harte  at  the  time  of  filing  their  bill, 
or  which  shall  have  become  due  at  the  first  accounting  after  the  ser- 
vice of  the  bill,  will  not  be  sufficient  to  pay  the  indebtedness  of  said 
Harte  to  the  plaintiffs. 

To  the  end  therefore  that  the  defendants  may,  if  they  can,  show 
why  your  orators  should  not  have  the  relief  hereby  prayed,  and  may, 
waiving  their  several  and  respective  oaths,  full,  true  and  perfect  an- 
swers make  to  all  and  singular  the  premises,  and  more  particularly 
that  the  said  Osgood,  Clark  and  Ticktior  may  full  answer  make  to  the 
several  interrogatories  hereinafter  numbered  and  set  forth,  to  wit, — 

1.  Whether  they  have  published  and  offer  for  sale  any  of  the 
works  of  the  defendant  Harte,  and  if  so,  what  of  said  works  and 
how  many  editions  of  the  same  they  are  now  so  offering  ? 

2.  Whether  they  own  the  copyrights  of  said  works,  and  if  they  do, 
whether  said  copyrights  were  procured  to  be  issued  to  them  by  said 
Harte  ? 

3.  Whether  any  contracts  exist  between  them  and  said  Harte,  and 
to  annex  a  copy  of  the  same  to  their  answer  to  this  bill. 

4.  Whether  anything  is  now  due  from  them  to  said  Harte  under 
said  contracts  ? 

5.  Whether  the  accounts  between  them  and  said  Harte  are,  by  their 
contracts,  to  be  settled  at  any  particular  times,  and  if  so,  when. 

And  that  the  said  Osgood,  Clark  and  Ticknor  may  be  ordered  by 
this  honorable  court  to  account  with  your  orators  for  such  sums  of 
money  as  may  now  be  due  or  hereafter  fall  due  said  Harte  under  said 
contracts,  until  his  debt  to  your  orators,  with  the  interest  thereon 
and  the  costs  of  this  proceeding,  shall  be  fully  paid  and  discharged; 
or  that  said  Osgood,  Clark  and  Ticknor  may  be  ordered  to  pay  the 
same  into  court,  subject  to  the  order  of  this  honorable  court;  and 
that  your  orators  may  have  such  further  and  other  relief  in  the  prem- 
ises as  the  nature  of  their  case  may  require: 

May  it  please  your  honors  to  grant  unto  your  orators  a  writ  of 
subpoena,  to  be  directed  unto  the  said  Bret  Harte,  James  R.  Osgood, 
John  S.  Clark  and  Benjamin  H.  Ticknor,  commanding  them  at  a  cer- 
tain time,  and  under  a  certain  penalty  therein  to  be  limited,  person- 
ally to  appear  before  this  honorable  court,  and  then  and  there  full, 
true,  direct  and  perfect  answer  to  make  to  all  and  singular  the  prem- 
ises; and  further,  to  stand  to,  perform  and  abide  such  further  order 
and  decree  therein  as  to  this  honorable  court  shall  seem  meet. 

G.  IV.  T  Lord, 
S.  Lord,  Jr., 
Thomas  Varleer, 
by  their  Solicitor, 

M.  M.  Weston. 
893  Volume  5. 


6646.  CREDITORS'  SUITS.  6646. 

7.  Treasury  Warrant. 

Form  No.  6646.' 

Commonwealth  of  Massachusetts. 

Superior  Court. 

Suffolk,  ss.  Bill  in  Equity. 

William  McCann 

vs. 

Simon  F.  Randall  and  Jerome  F.  Manning. 

Your  complainant  William  McCann  of  Portland,  state  of  Maine, 
shows  unto  your  honors  that  Simon  F.  Randall,  now  of  Brooklyn,  state 
oi  New  York,  on  the  eighteenth  diZ.y  oi  January,  a.  d.  \2,69,  dtt  Portland, 
state  of  Maine,  made  his  certain  promissory  note  of  that  date  whereby 
he  promised  on  demand  after  date  to  pay  to  the  order  of  Wm.  Mc- 
Cann, ten  hundred  and  forty-seven  dollars  for  value  received  and  duly 
stamped  said  note,  and  delivered  the  same  to  your  orator,  the  said 
William  McCann,  whereby  the  said  defendant  became  liable  to  pay 
the  same  according  to  the  tenor  of  said  note,  a  copy  whereof  is  here- 
unto annexed:  That  the  said  defendant  Randall  has  never  paid  the 
same  or  any  part  thereof,  but  the  same,  together  with  interest  amount- 
ing to  two  thousand  and  fifty-three  dollars  and  sixteen  cents  in  all,  is  still 
due  and  payable  to  your  orator,  which  complainant  is  entitled  to  have 
and  recover  from  said  defendant  Randall;  that  said  defendant  Randall 
has  in  this  state  certain  property,  rights,  title  or  interest  legal  or 
equitable  which  cannot  be  come  at  to  be  attached  or  taken  on  execu- 
tion in  a  suit  at  law,  against  said  debtor,  to  wit:  a  certain  negotiable 
draft  numbered  (^B  IJ^SSS)  on  Diplomatic  Warrant  No.  2232,  signed  by 
Q.  N.  Wyman,  payable  to  the  order  of  said  defendant  Simon  F.  Randall 
at  the  Assist.  Treasury  at  Boston,  Mass.,  for  the  sum  of  two  thousand  six 
hundred  and  forty-six  dollars  and  two  cents,  dated  August  12,  A.  D. 
i8<?4>  registered  August  12,  a.  d.  \Z8Jf.,  issued  under  authority  of  the 
United  States,  and  which  your  orator  cannot  more  fully  describe, 
deposited  and  in  the  possession  of  Jerome  F.  Manning,  doing  business 
at  131  Devonshire  street  in  said  Boston;  that  said  defendant  has 
refused  and  still  refuses  to  pay  said  claims  or  to  apply  said  inattach- 
able  property  thereto,  all  of  which  doings  of  said  deienddint  Randall 
are  contrary  to  equity  and  good  conscience,  and  tend  to  the  manifest 
injustice  of  your  orator. 

In  consideration  whereof  and  forasmuch  as  your  complainant  can 
only  have  adequate  relief  in  a  court  of  equity,  where  matters  of  this 
nature  are  properly  cognizable  and  relievable,  and  to  the  end  that 
the  sdi^xd  Jerome  F.  Manning  and  the  said  Simon  F.  Randall  may 
severally  answer  all  and  singular  the  premises,  and  that  there  may 
be  a  decree  that  said  Randall  pay  said  sum  as  aforesaid,  and  that  so 

1.  This  form  is  copied  from   the  rec-  found  here  unindorsed  in  the  custody 

ord  in  the  case  of  McCann  v.  Randall,  of  an  agent,  may  be  reached  by  a  cred- 

147  Mass.  81,  in  which  case  it  was  held  itor  of  the   payee   by  a  bill  in    equity 

that   a   United   States   treasury   draft,  under  Mass.   Pub.   Stat.  (1882),  c.   151, 

which  was  issued  upon  the  award   of  §  2,  cl.  11. 

theCourtof  Commissioners  of  Alabama  ''  Consult  note  i,  p.  874,  supra. 
Claims,  payable  to  a  nonresident  and 

894  Volume  5. 


6647.  CREDITORS'  SUITS.  6647. 

much  of  the  proceeds  of  said  draft  as  are  necessary  therefor  may  be 
appropriated  to  the  payment  of  said  claims,  and  that  on  failure  of 
said  Randall  to  indorse  said  draft  the  same  may  be  indorsed  by  some 
person  appointed  by  this  court  therefor,  and  that  said  defendant 
Manning  may  be  enjoined  from  negotiating,  delivering  up,  or  parting 
with  the  possession  of  said  draft  until  the  further  order  of  this  court, 
and  that  your  complainant  may  have  such  other  and  ftirther  relief  as 
the  nature  of  this  case  may  require  and  to  your  honors  shall  seem 
meet,  may  it  please  your  honors  to  grant  unto  your  complainant 
proper  order  of  notice  to  be  directed  to  said  defendant  Randall, 
and  a  writ  of  subpoena  to  be  directed  to  said  Jerome  F.  Manning  of 
said  Boston,  commanding  them  and  each  of  them  on  a  certain  day  to 
appear  before  your  honors  and  answer  the  premises  and  abide  such 
order  and  decree  as  to  your  honors  shall  seem  meet,  and  also  a 
temporary  writ  of  injunction  to  be  directed  to  the  sdiid  Jerome  F. 
Manning  restraining  him  from  in  any  way  negotiating  or  disposing 
of  said  draft  until  the  further  order  of  his  court. 

his 

Williamx  McCann. 

mark 

Witness  to 
William  McCantCs 

Signature 
Josiah  H.  Drummond,  Jr. 
State  of  Maine, 
Cumberland,  ss.     February  2,  iS85. 

Then  personally  appeared  the  above  named  William  McCann  and 
made  oath  that  he  has  read  or  heard  read  the  above  bill  in  equity 
and  knows  the  contents  thereof,  and  that  the  same  is  true  except  as 
to  those  matters  stated  on  information  and  belief,  and  that  as  to 
those  he  believes  them  to  be  true. 

Before  me, 

Josiah  a.  Drummond,  Jr., 

Justice  of  the  Peace. 

8.  Trust  Property. 

a.  Devise  in  Trust. 

Form  No.  6647.1 

Bill  in  Equity. 

In  the  Supreme  Court  of  the  District  oj  Columbia^  the  twenty-third 
day  of  October,  iS96. 

1.  This  form  is  based  upon   the  facts  that   while   the   bill    showed   that   the 

in  thecase  of  Bryan  z/.  May,  9  App.  Cas.  monthly      revenues      of      the      estate 

(D.  C.)   383,  in    which    case,   however,  amounted   to  twelve  hundred  dollars, 

the  bill  was  defective   in   omitting   to  two-thirds  of  which  was  for  distribu- 

join  Sarah  Maria  May,  the  executrix  of  tion  among  the  children  of  the  testator, 

the  will,  and  co-trustee  with  defendant  there  was  no  prayer  for  special  relief  in 

of  the   estate   thereunder,   as   a   party  respect  to  this  fund.     * 
defendant,  and  for  the  further  reason         Consult  note  i,  p.  874,  supra. 

895  Volume  5. 


6647.  CREDITORS'  SUITS.  6647. 


\  No.  59S. 


Charles  C.  Bryan,  plaintiff, 

V. 

William  May,  and  William  May  and 

Sarah  Maria  May,  as  executors  and 

trustees   under  the   will  of  John  F. 

May,  deceased,  defendants. 
To   the   Supreme   Court   of  the   District  of   Columbia,    holding   an 
Equity  Court. 

The  plaintiff  states  as  follows: 

1.  He  is  a  citizen  of  Northport,  in  the  state  of  New  York,  and 
brings  this  suit  in  his  own  right. 

2.  The  defendant  William  May  is  a  citizen  of  the  United  States 
and  a  resident  of  the  District  of  Columbia,  and  is  sued  in  this  action 
in  his  own  right,  and  also  as  executor  and  trustee  under  the  will  of 
John  F.  May,  deceased. 

The  defendant  Sarah  Maria  May  is  a  citizen  of  the  United  States 
and  a  resident  of  the  District  of  Columbia,  and  is  sued  in  this  action 
as  executrix,  and  as  co-trustee  with  said  William  May,  under  the 
will  of  John  F.  May,  deceased. 

3.  The  plaintiff  recovered  a  judgment  against  defendant  William 
May  on  t\iQ  fifth  day  of  June,  iW5,  in  the  Supreme  Court  of  the  Dis- 
trict of  Columbia,  for  the  sum  of  three  hundred  and  forty- five  dollars 
and  sixty-five  cents,  with  interest  from  the  second  day  of  November, 
j893,  which  judgment  remains  unpaid,  and  upon  which  execution 
has  been  returned  unsatisfied. 

4.  The  defendant  William  May  is  an  heir  at  law  and  devisee  of 
John  F.  May,  who  died  in  the  said  district  the  first  oi  May,  iS91, 
seised  and  possessed  of  a  large  amount  of  valuable  real  estate,  situated 
therein,  and  described  as  follows  (describing  it). 

5.  The  said  John  F.  May,  at  the  time  of  his  decease,  as  aforesaid, 
left  a  last  will  and  testament  and  codicil,  which  said  will  and  testament 
and  codicil  are  hereto  annexed  and  made  a  part  of  this  bill  and 
marked  Exhibit  A;  that  on  the.  fifth  day  of  June,  iS91,  said  last  will 
and  testament  and  codicil  of  the  said  John  F.  May,  deceased,  were 
duly  proved  before  the  Yiow.John  Marshall,  a  justice  of  the  Supreme 
Court  of  the  District  of  Columbia,  holding  a  special  term  of  said  court 
for  probate  business,  and  duly  admitted  to  probate  by  said  justice. 
A  copy  of  said  order  of  probate  is  hereto  annexed  and  made  a  part 
of  this  bill  and  marked  Exhibit  B. 

6.  By  the  said  will  the  said  John  F.  May  {Here  was  set  out  the  sub- 
stance of  the  provisions  of  the  will  in  question).^ 

1.  By  the  said  will  the  testator  de-  "  intact  and  undivided,  in  the  belief  of 
vised  and  bequeathed  all  of  his  estate  its  increase  in  value,  and  especially  to 
to  his  wife,  Sarah  Maria  May,  subject  insure  unto  my  wife  and  children  a  cer- 
to  the  trusts  subsequently  provided,  to  tain  income  during  their  lives,"  he 
haTe  and  hold, to  collect  rents, revenues,  directed  "  that  no  division  of  it  shall  be 
etc.  He  then  gives  her,  absolutely,  made  while  any  of  my  children  are 
one-third  of  his  personal  estate,  and  for  living,  and  the  rents,  profits  and  issues 
life  one-third  of  all  the  rents  and  reve-  of  it,  with  the  exception  of  the  thirds 
nues  of  his  estate,  together  with  the  of  my  wife,  shall  be  applied  to  the  pay- 
house  and  lot  where  he  resided.  Ex-  ment  of  all  just  debts  I  may  owe  at  the 
pressing  the  wish   to  keep   his  estate  time  of  my  death,  and  especially  to  the 

896  Volume  5. 


6647.  CREDITORS'  SUITS.  6647. 

7.  The  rents  and  revenues  collected  from  said  estate  by  defendant 
William  May  amount  to  at  least  twelve  hundred  dollars  per  month. 

8.  By  the  terms  of  said  will,  defendant  William  May  has  vested  in 
him  an  equitable  estate  in  fee  subject  to  the  trusts  declared  in  said 
will. 

9.  On  the  second  day  of  May,  i895,  defendant  William  May  having 
given  a  bond  for  costs  in  the  Court  of  Appeals,  on  a"n  appeal  to  the 
Supreme  Court  0/  the  United  States,  upon  which  the  American  Surety 
Company  became  surety,  induced  one  Victorine  M.  Learned  to  deposit 
with  said  company  twenty  thousand  dollars  of  bonds  to  secure  it  against 
loss  on  said  bond,  and  on  the  second  oi  May,  i895,  to  save  said  Vic- 
torine M.  learned  harmless,  defendant  William  May  conveyed  to  her 
his  interest  in  the  estate  atoresaid. 

10.  Wherefore  piaintiff  prays  that  defendant  William  May  be 
decreed  to  pay  and  satisfy  the  amount  due  on  said  judgment  and  the 
costs  of  this  suit;  and  to  apply  for  that  purpose  his  interest  or  por- 
tion of  the  rents,  profits,  and  incomes  accruing  to  him  under  the  will 
of  said  yohn  F.  May;  and  that  should  the  aforesaid  rents,  profits  and 
incomes  be  found  insufficient  or  unavailable  to  satisfy  said  judgment, 
it  may  be  decreed  that  all  the  right,  title,  and  interest  of  said  William 
May  in  the  real  estate  devised  to  Sarah  Maria  May  and  William  May, 
as  trustees  under  the  will  of  John  F.  May,  or  so  much  thereof  as  is 
necessary,  may  be  applied  in  satisfaction  of  said  judgment;  and  that 
for  this  purpose  the  said  William  May  and  his  co-trustee,  Sarah 
Maria  May,  may  be  required  to  transfer,  assign,  convey,  and  deliver 
up  to  some  suitable  person  to  be  appointed  by  your  honor  to  receive 
and  sell  the  same,  subject  to  the  trusts  created  under  the  will  of  said 
John  F.  May,  and  subject  further  to  the  trust  in  favor  of  said  Victo?'ine 
M.  Learned,  or  so  much  of  the  estate  and  property  of  the  said  William 
May  as  may  suffice  to  satisfy  the  said  judgment,  and  the  costs  of  this 
suit.  And  until  such  payment  or  satisfaction,  that  the  said  William 
May,  and  his  co-trustee,  Sarah  Maria  May,  may  be  enjoined  from 
paying  out,  transferring,  conveying  or  passing  away  any  of  the  prop- 
erty of  the  said  William  May,  except  in  satisfaction  of  said  judgment. 

11.  And  for  process  of  subpoena  directed  to  the  said  William  May 

canceling  of  any  incumbrance  or  mort-  from   giving   bond  in  either  capacity, 

gage  that  may   then  exist  on  any  part  By  the  codicil  to  the  said  will,  the  tes- 

of  my  estate."      When  said  debts  shall  tator  appointed  his  son,  the  defendant 

have  been  paid,  said  rents,  etc.,  shall  be  William    May,    co-trustee   with   Sarah 

equally  divided  and  paid  to  his  children.  Maria  May,  and  directed  that  he  should 

Nothing   in    said    will  shall   prevent  take  charge  of   the  real  estate  (except 

the  sale  by  the  trustee  of  any  part  of  the  dwelling-house),  manage  the  same, 

the  estate  if  clearly  manifest  that  the  collect  rents,  pay  taxes,  make  repairs, 

same  shall  be  greatly  for  the  benefit  of  etc.    For  such  service  he  was  authorized 

his  heirs.      In  event  of  sale,  provision  to  retain  a  commission  of  five  per  cent, 

is  made  for  investment  of  the  proceeds,  of  the  money  collected.      He  was   re- 

"  Should   either    or   any   of    the    said  quired  to  render  a  monthly  account  of 

children  have  married  and  died  and  left  collections  and  disbursements   to  said 

issue,"  their  shares  of  the  rents  shall  be  Sarah  Maria  May,  during  her  life,  and 

used  for  the  support  of  said  issue,  and  after  that  to  the  heirs.     Provision  for 

any  surplus  shall  be  invested  in  bonds  his  removal  by  action  of  the  remaining 

and  turned  over  to  them  on  attaining  devisees   was   made;  and  he  was  also 

lawful  age.     The  said  wife  is  appointed  excused  from  giving  bond  as  trustee, 
executrix  as  well  as  trustee, and  relieved 

S  E.  of  F.  P.  —  57.  897  Volume  5. 


6648.  CREDITORS'  SUITS.  6648. 

and  Sarah  Maria  May  commanding  them  on  a  certain  day  and  under 
a  certain  penalty  to  be  and  appear  in  this  court,  then  and  there  to 
answer  the  premises  and  to  stand  to  and  abide  by  such  order  and 
decree  as  may  be  made  against  him. 

F.  P.  B.  Sands, 
Solicitor  and  of  Counsel  for  Plaintiff. 
(  Verification,  y- 

Form  No.  6648.' 

Bill  of  Complaint. 
To  the  Honorable  Justices  of  the  Superior  Court  within  and  for  the 
County  of  Bristol: 

Humbly  complaining,  represents  Cecilia  C.  Ricketson,  widow,  of 
New  Bedford  within  said  county;  that  on  the  thirtieth  day  oi  June, 
jS82,  she  recovered  judgment  in  the  Superior  Court  of  the  city  and 
county  of  San  Francisco  and  state  of  California,  against  George  B. 
Merrill,  of  said  city  of  San  Francisco,  for  the  sum  of  %5,06'2.99,  gold 
coin,  and  that  by  the  laws  of  said  state  of  California,  said  judgment 
bore  interest  from  said  thirtieth  day  oi  June,  iS82,  at  the  rate  of  seven 
per  cent,  per  annum,  and  now  amounts  to  the  sun.  of  ^6,700;  that  no 
part  of  said  judgment  has  ever  been  paid,  and  the  said  George  B. 
Merrill,  of  said  city  and  county  of  San  Francisco,  is  indebted  to  your 
complainant  in  said  sum  of  %6,100. 

And  your  complainant  further  represents,  that  the  said  George  B. 
Merrill  has  no  property  or  estate  which  can  be  come  at  to  be  attached 
for  the  satisfaction  of  said  judgment;  but  she  avers  that  under  and 
by  virtue  of  the  will  of  Edward  Merrill,  late  of  said  New  Bedfordija. 
copy  of  which  will  is  hereto  annexed  marked  A),  who  was  the  father 
of  said  George  B.  Merrill,  which  said  will  has  been  duly  probated  in 
the  Probate  Court  for  the  county  of  Bristol,  commonwealth  of  Mas- 
sachusetts, and  whereof  Southward  Potter,  2d,  of  New  Bedford,  Edward 
B.  Merrill,  of  Neiu  York,  in  the  state  of  Ne7v  York,  and  James  H. 
Myrick,  of  Boston,  in  the  county  of  Suffolk,  are  the  executors  and  trus- 
tees, the  said  George  B.  Merrill  has  acquired  certain  property,  rights, 
titles,  and  interests,  legal  or  equitable,  which  cannot  be  come  at  to 
be  attached  or  taken  on  execution  in  a  suit  at  law  against  said  George 
B.  Merrill,  but  which  in  justice  and  equity,  and  according  to  the 
provisions  of  chapter  151  of  the  Public  Statutes,  ought  to  be  applied 
to  the  payment  and  satisfaction  of  said  judgment. 

Wherefore  your  petitioner  prays  that  a  subpoena  may  be  issued  to 
the  said  George  B.  Merrill,  and  to  the  said  Southward  Potter,  2d, 
Edward  B.  Merrill,  and  James  H.  Myrick,  as  they  are  the  executors 
and  trustees  under  said  will  of  Ed7vard  Merrill,  late  of  New  Bedford, 
deceased,  directing  them  and  each  of  them  to  appear  before  this  hon- 

1.  As  to  the  verification  of  a  bill  in  2,  cl.  11,  as  amended  by  Mass.  Stat. 
the  District  of  Columbia,  see  vol.  3,  p.  (1884),  c.  285,  and  that  the  creditor  was 
433,  note  7.  entitled  to  a  decree  appropriating  from 

2.  This  form  is  copied  from  the  rec-  the  proceeds  in  the  executor's  hands,  or 
ord  in  the  case  of  Ricketson  v.  Merrill,  which    might    come    to   them    for  the 
148  Mass.  •'6,  in  which  case  it  was  held  debtor,  whether  from  sales  of  land  here 
that  a  creditor's  bill  might  be  brought  or  elsewhere,  enough  to  pay  the  debt, 
under  Mass.  Pub.  Stat.  (1882),  c.  151,  §        Consult  note  i,  p.  874,  supra. 

898  Volume  5 


6649.  CREDITORS'  SUITS.  6649. 

orable  court  at  a  time  to  be  fixed  therein,  and  full,  true  and  perfect 
answer  make  to  the  allegations  in  this  bill,  but  not  under  oath,  the 
benefit  of  which  is  hereby  waived,  or  be  defaulted. 

And  that  your  honors  will  order  and  decree  that  the  said  executors 
and  trustees  shall  pay  over  to  your  petitioner  whatever  sum  or  sums 
of  money  now  are  or  which  shall  at  any  time  hereafter  become  pay- 
able to  the  said  George  B.  Merrill  under  the  provisions  of  said  will,  in 
satisfaction  and  payment  of  said  judgment,  until  the  same  shall  have 
been  fully  paid,  together  with  all  interest  which  has  accrued  or  shall 
hereafter  accrue  thereon,  and  the  costs  of  this  proceeding. 

And  that  the  said  George  B.  Merrill  be  adjudged  a  debtor  of  your 
petitioner  in  respect  of  the  premises,  and  be  ordered  to  execute  and 
deliver  to  said  executors  and  trustees  a  full  discharge  of  all  claims 
against  them  as  such  executors  and  trustees,  under  the  provisions  of 
said  will,  to  the  extent  of  said  payments  so  ordered  by  the  executors 
and  trustees  to  be  made  to  your  petitioner. 

Cecilia  C.  Ricketson, 

by  her  attorneys, 

Crapo,  Clifford  &>  Clifford. 

b.  Express  Trust. 

Form  No.  6649. 

(Precedent  in  Bank  of  Commerce  v.  Chambers,  96  Mo.  461.)' 

[Bank  of  Commerce^  plaintiff,     ^ 

against  !    In  the  St.  Louis  City  Circuit  Court, 

B.Maziere  Chambers  and  Julius  [    To  the  October  Term,  i%87. 
S.  Walsh,  defendants.  J 

Plaintiff  states]^  that  on  the  eighth  day  of  April,  1S8I,  in  a  case 
numbered  55,867,  in  the  circuit  court  of  the  city  of  St.  Louis,  in  the 
state  of  Missouri,  being  a  case  of  it,  the  Bank  of  Commerce,  as  plain- 
tiff, against  B.  M.  Chambers  and  Margaret  F.  Smith,  defendants,  it 
recovered  judgment  against  Chambers  and  Smith,  for  the  sum  of  five 
thousand  one  hundred  and  thirty-four  dollars  and  thirty-five  cents- 
{%5.  IS  If..  85^,  and  costs,  which  judgment  was  therein  ordered  to  bear 
interest  at  the  rate  of  tefi  (^10)  per  cent,  per  annum  from  its  date;; 
that  thereafter,  to  wit,  on  the  eighteenth  day  of  May,  1S8I,  the  plain- 
tiff caused  an  execution  to  issue  on  said  judgment,  which  execution 

1.  This   bill  was  demurred  to  in   the  who  releases  his  curtesy  in  his  wife's 

lower  court  on  the  grounds  that  the  pe-  estate,    accepting   in   lieu    thereof     an 

tition  did   not  state  facts   sufficient  to  income  given  him  by  her  will,  will  be 

constitute  a  cause  of   action,  and  did  regarded  as  a   purchaser   of   such    in- 

not    state     facts     sufficient    to    entitle  come,  and  not  a  mere  recipient  of  his 

plaintiff  to  equitable  relief.     The  plain-  wife's  bounty,  and  the  income  will  be 

tiff   declining    to    plead    further,    final  subject  to  the  claims  of  his  creditors, 

judgment   was  entered  dismissing  the  notwithstanding  the  provisions  of  the 

petition.     The  plaintiff   appealed,  and  will  exempt  it  from  such  claims, 

the  supreme  court,  by   unanimous  de-  Consult  note  i,  p.  874,  supra. 

cision,  ordered  the  judgment  reversed  2.  The  words   and   figures   enclosed 

and    cause    remanded    to    the    circuit  by  [  ]  will  not  be  found  in  the  reported 

court  with  directions  to  enter  a  decree  case,    but  have  been   added   to  render 

for  plaintiff,  holding   that   a    husband  the  form  complete. 

899  Volume  5. 


6649.  CREDITORS'  SUITS.  6649. 

was  numbered  150,  returnable  to  June  term,  \Z81;  that  said  execu- 
tion was  directed  and  delivered  to  the  sheriff  of  the  city  of  St.  Louis, 
and  was  by  him  duly  returned  on  the  sixth  day  oi  June,  i881,  nu//a 
bona;  that  thereafter,  to  wit,  on  the  nineteenth  day  of  October,  i88£,  in 
another  case,  56,939,  in  the  circuit  court  of  the  city  of  St.  Louis,  state 
of  Missouri,  being  the  case  of  it,  the  Bank  of  Cofnmerce,  as  plaintiff, 
against  B.  Maziere  Chatnbers  and R.  Graham  Frost,  as  defendants,  it 
recovered  a  judgment  against^.  Maziere  Chambers,  who  is  a  defend- 
ant in  the  present  suit,  and  R.  Graham  Frost,  for  the  sum  of  five 
thousand  five  hundred  and  fourteen  dollars  and  thirty-seven  cents 
{$5,514.37),  and  costs,  which  judgment  was  therein  ordered  to  bear 
interest  at  the  rate  of  ten  (10)  per  cent,  per  annum  from  date;  that 
thereafter,  on  the  secorid  day  of  January,  i8<9^,  the  plaintiff  caused  an 
execution  to  issue  on  said  judgment,  which  execution  was  number 
135,  returnable  to  February  term,  \88If.;  that  said  judgment  was 
directed  and  delivered  to  the  sheriff  of  the  city  of  St.  Louis,  and  by 
him  duly  returned,  on  \.\\t  fourteenth  day  of  February,  \881f.,  nulla  bona. 
And  plaintiff  further  says  that  nothing  has  been  paid  on  either  of  the 
above  mentioned  judgments;  that  none  of  the  defendants  in  either 
said  cases  has  any  property  or  effects  of  any  kind  subject  to  execu- 
tion and  levy. 

And  plaintiff  says  that  Mrs.  Marie  C.  Chambers,  the  wife  of  defend- 
ant ^.  Maziere  Chambers,  died  on  the  ninth  day  oi December,  i883,  in 
the  county  of  St.  Louis,  state  o(  Missouri;  that  she  made  a  will  which 
was  duly  probated  in  the  probate  court  of  St.  Louis  county,  on  the 
t7uentieth  day  of  December,  \883;  and  a  certified  copy  thereof  was 
fifed  in  the  office  of  the  recorder  of  deeds  of  the  city  of  St.  Louis, 
state  of  Missouri,  in  book  123,  page  81,  on  the  twenty -fourth  day 
of  December,  \883;  that  among  other  provisions  immaterial  to  this 
case,  the  said  testatrix  gave  the  income  of  property  worth  half  a 
fnillion  dollars  {$500,000),  which  income  is  now  twenty  thousand  dol- 
lars {$^0,000)  per  annum,  to  the  defendant  Walsh,  in  trust  for  the 
defendant  Chambers,  during  his  natural  life. 

The  language  of  the  will  on  this  point  is  as  follows:  {Here  was  set 
out  the  section  of  the  will  in  question,  y- 

1.  The  section  of  the  will  quoted  in  the  would  by  the  laws  of  Missouri,  then  in 

petition  was  as  follows:  force,    be   declared    to   be   my   rightful 

"  Seventh.  All  the  rest  and  residue  heirs  had  I  survived  him;  provided, 
of  my  estate,  real,  personal  and  mixed,  that  such  heirs  be  descendants  of  mine, 
whereof  I  shall  die  seised,  entitled  or  they  or  the  survivor  of  them  shall  have 
possessed,  I  give,  bequeath  and  devise  only  a  contingent  estate  in  the  property 
to  my  \ixo\.\v^x fulius  S.  Walsh,  in  trust,  thus  inherited,  to  become  vested  only 
that  he  manage,  hold  and  dispose  of  on  his  or  hers,  the  survivor,  attaining 
the  same  during  the  natural  life  of  my  majority,  and  upon  the  death  of  any 
husband;  that  quarterly  he  pay  the  net  one,  the  inheritance  to  be  declared  to 
rents,  issues  and  profits  arising  there-  the  exclusion  of  my  husband,  my  desire 
from  into  the  proper  hands  of  my  hus  being  that  my  estate  should  remain  in 
band  alone,  or  such  person  or  persons  my  family,  if  it  cannot  among  my  de- 
as  he.  my  husband,  by  any  order  in  scendants,  and  I  give  to  my  said  trustee 
writing  may  for  that  purpose  appoint,  the  power  to  sell  or  convert  any 
and,  after  the  death  of  my  husband,  to  part  of  the  trust  property  and  the  pro- 
convey  to  such  person  or  persons,  for  ceeds  thereof,  to  reinvest  in  such  real 
such  estates  and  in  such  portions,  as  or  personal  estate  or  in  such  securities 

900  Volume  5. 


6649.  CREDITORS'  SUITS.  6649. 

And  plaintiff  further  says  that  defendant  Chambers  had  an  estate 
by  the  curtesy  in  the  real  estate  of  his  deceased  wife,  from  which,  if 
he  had  retained  it,  he  would  have  had  an  income  of  at  least  fifteen 
thousand  dollars  (^15,000)  per  annum,  which  said  income  would  have 
been  subject  to  seizure  and  sale  upon  execution  by  plaintiff,  to  satisfy 
its  judgments  hereinbefore  set  forth. 

Plaintiff  further  states  that,  for  the  purpose  of  hindering,  delaying 
and  defrauding  plaintiff,  and  for  the  purpose  of  securing  to  his  own 
use  an  estate  which  he,  said  Chambers,  believed  to  be  secure  from 
attack  and  seizure  by  plaintiff  herein,  he  did,  heretofore,  to  wit,  on 
the  thirtieth  day  of  December,  iSSS,  by  deed,  duly  recorded  in  the 
office  of  the  recorder  of  deeds  of  the  city  of  St.  Zouis^  state  oi  Mis- 
souri, and  in  book  number  71Jf,  page  525  thereof,  convey  his  said 
estate  by  the  curtesy,  as  required  by  the  will  of  his  wife,  to  the 
defendant  y;^//«j  6".  Walsh,  in  consideration  of  the  provision  in  his 
favor  in  the  said  will  of  his  wife.  And  plaintiff  further  says  that  the 
defendant  Walsh  has  accepted  the  position  of  trustee  for  defendant 
Chambers,  under  the  will  of  the  latter's  wife,  and  by  reason  of  the 
conveyance  of  the  estate  by  the  curtesy  to  him  by  defendant  Cham- 
bers, he,  said  Walsh,  pays  over  to  said  Chambers,  quarterly,  as  such 
trustee,  the  income  of  the  trust  estate,  to  the  amount  oi  five  thousand 
dollars  (^,000)  per  quarter. 

And  plaintiff  -further  says  that  the  deceased  testatrix  did  not 
leave,  and  never  had,  any  equitable  separate  estate;  that  she  in- 
herited the  property  she  left  from  her  father;  that  there  are 
no  debts  proved  against  her  estate,  though  it  has  been  in  pro- 
cess of  administration  since  December  23,  i883,  and  that  there  are 
no  debts  in  existence  to  be  proved.     And  plaintiff  further  says  it  is 

as  to  my  said  trustee  may  seem  expedi-  or  resignation  of  my  said   trustee,   or 

ent  and  discreet;  or  to  employ  the  same  that  by  any  cause  he  be  incapacitated 

in  the  improvement  of  any  portion  of  or  disqualified  for  the  performance  of 

my  real  estate,  giving  also  to  my  said  the  duties  of  the  trust,  I  authorize  my 

trustee  power  to  lease  over  for  a  term  husband  by  writing  under  his  seal  and 

of  years,  not  exceeding  thirty,  but  in  signature,  and  duly  acknowledged  as 

every  instance  of  such  sale,  conversion,  in   release  of  deeds,  to  name  and  ap- 

lease  or  improvement,  the  written  con-  point   another    trustee,    who   from    the 

sent  of  my  husband  thereto  to  be  first  date  of  the  filing  of  such  instrument  for 

had  and  obtained,   and   without   such  record  in  the  proper  office  in  the  said 

consent   no  exercise  of  powers  herein  cti_y  of  St.  Louis,  shall  be  subrogated  in 

conferred  to  be  valid,  my  object,   and  the   lieu   and   stead   of   sa.iA  fulius  S. 

my   only  object,    and    I    have   by    the  IValsh,  the  same  as  is  herein  orginally 

creation  of  this  trust  none  other,  than  named,  and  of  course  to  be  subjected 

because  of  the  affection  I  entertain  for  to  the  same  trust,  limitations,  condi- 

my  husband,  the  tender  love  which  has  tions,  restrictions  and  provisions  here 

characterized    our     union    with    each  contained.    This  power  of  appointment 

other,  the  fear  he  may  become  embar-  is  a  continuing  one,  to  be  exercised  as 

assed,  I  may,  of  my  own  estate,  always  often  as   necessity   require.     The  pro- 

throughout  his   life,  secure  to  him  an  visions   herein   made   for  my  husband 

ample  independence  forever,  free  from  are    upon    condition    that    within   six 

the  claims  and  demands  of  any  cred-  months  after  the  probate  of  my  will,  he 

itor  he  may  now  or  hereafter  have,  and  by  deed,  duly  executed  and  in  the  said 

without  any  right  to  intervene,  or  se-  city  of  St.  Louis  duly  recorded,  release 

quester  of  the  revenues  of  the  trust  for  any  right,  title  or  estate  as  tenant  by 

the   payment   of    their   claims   or    de-  the  curtesy  he  may  have." 
mands.    And  in  the  events  of  the  death 

901  Volume  5. 


6650.  CREDITORS'  SUITS.  6650. 

wlioUy  without  remedy  as  to  the  collection  of  its  two  judgments 
above  set  out,  unless  this  court  order  and  decree  that  the  defendant 
Walsh  pay  quarterly  to  plaintiff  what,  under  the  terms  of  the  will, 
and  by  reason  of  the  conveyance  of  said  estate  by  the  curtesy,  he 
would  otherwise  pay  to  defendant  Chambers,  until  the  plaintiff's  said 
judgment  shall  be  satisfied. 

Wherefore  plaintiff  prays  that  defendant  Chambers  be  enjoined 
from  receiving,  and  defendant  Walsh  be  enjoined  from  paying  him, 
any  of  the  income  provided  for  in  the  will  of  Mrs.  Marie  C.  Cham- 
bers, until  the  plaintiff's  judgments  are  satisfied;  and  that  defendant 
Walsh  be  ordered  to  pay  plaintiff,  in  part  satisfaction  of  them,  each 
quarter  of  a  year,  the  income  of  the  estate  of  which  he  is  trustee  for 
defendant  Chambers,  until  they,  said  judgments,  are  fully  satisfied; 
and  that  such  further  relief  be  granted  plaintiff  as  to  the  court  may 
seem  proper. 

\Albert  Arnstein, 
J.  P.  Maginn, 
Attorneys  for  Plaintiff. J^ 

e.  Secret  Trust. 

Form  No.  6650.' 

To  the  Judge  of  the  Circuit  Court  of  the  Fifth'  Judicial  Circuit  of  the 
State  of  Florida  in  and  for  Putnam  County,  in  Chancery  sitting: 

John  Dunning  and  Jajnes  Palmer,  of  the  city  St.  Augustine,  in  the 
county  of  St.  Johns  and  state  of  Florida,  copartners,  doing  busi- 
ness in  said  city  of  St.  Augustine  under  the  firm  name  and  style  of 
Dunning  c^  Palmer,  and  F.  S.  Selover  and  John  Doe,  of  said  city, 
county  and  state,  doing  business  in  said  city  of  St.  Augustine  under 
the  firm  name  of  F.  S.  Selover  c^*  Co.,  on  behalf  of  themselves  and  all 
other  unsatisfied  creditors  of  P.  E.  Carr  6^  Co.,  who  shall  come  in 
and  contribute  to  the  expense  of  this  suit,  bring  this  their  bill  against 
Sophia  R.  Carr,  John  T.  Carr  and  James  W.  Allen,  all  of  the  city  of 
Palatka,  in  the  county  oi  Putna?n  and  state  oi  Florida,  lately  copart- 
ners doing  business  in  the  city  of  St.  Augustine  aforesaid  under  the 
firm  name  and  style  of  B.  E.  Carr  &-•  Co.,  and  James  Burt,  as  trustee 
for  said  Sophia  R.  Carr  of  said  city  of  Palatka,  and  Caleb  W.  Loring, 
of  the  city  of  Boston  in  the  commomuealth  of  Massachusetts,  both 
individually  and  as  trustee  for  said  Sophia  R.  Carr,  and  George  Burt, 
of  said  city  of  Palatka. 

And  thereupon  your  orators  complain  and  say  that  on  the  sixth  day 
oi  June,  A.  D.  1 875,  your  OTZtors,  John  Dutining  zxi^  James  Palmer, 
under  the  ndiXn&  oi  Dunning  &*  Palmer,  vQcoy&r&d  judgment  against 
the  defendants,  Sophia  R.  Carr,  John  T.  Carr  and  Ja7nes  W.  Allen, 
under  the  firm  name  of  B.  E.  Carr  ^  Co.,  in  the  Circuit  Court  of 
Duval  county,  Florida,  for  the  sum  of  twelve  hundred  and  ninety-five 
dollars  and  thirty  cents.     That  on  the  sixth  day  oi  June,  a.  d.  i87<?, 

1.  The  words  enclosed  by  [  ]  will  nol  in  the  case  of  Loring  v.  Dunning,  16 
be  found  in  the  reported  case,  but  have  Fla.  119,  in  which  case  a  decree  for 
been  added  to  complete  the  form.  complainants  was   affirmed   on  appeal. 

2.  This  form  is  substantially  the  bill         Consult  note  i,  p.  874,  supra. 

902  Volume  5. 


6650.  CREDITORS'  SUITS.  6650. 

your  orators,  F.  S.  Selover  and  John  Doe,  under  the  name  of  F.  S. 
Selover  a^  Co.,  recovered  judgment  against  said  defendants  under  said 
name  of  B.  E.  Carr  e^  Co.,  in  the  same  court,  for  the  sum  oi  four  hun- 
dred and  ninety-eight  dollars  and  sixty-eight  cents.  That  both  of  said 
judgments  were  duly  docketed  in  the  county  of  Putnam,  and  that 
afterward  the  said  judgments  so  recovered  in  manner  aforesaid 
remaining  in  full  force  and  effect  and  unpaid  and  unsatisfied,  execu- 
tions were  duly  issued  upon  both  said  judgments  on  the  tiinth  day  of 
June,  A.  D.  i2>73,  and  on  said  day  were  delivered  to  the  sheriff  of  said 
county  oi  Futna?n,  and  afterward,  on  the«z«Mday  oi  July,  a.  d.  i2>73, 
were  duly  returned  to  the  clerk's  office  of  said  county  oi  Putnam 
unsatisfied,  with  the  return  of  said  sheriff  thereon  that  no  property 
could  be  found  belonging  to  said  defendants,  B.  E.  Carr  &'  Co.,  or  to 
any  one  of  said  defendants  subject  to  be  levied  upon  and  sold  under 
said  execution. 

That  neither  of  the  defendants,  Sophia  R.  Carr,  John  T.  Carr  and 
James  W.  Allen,  are  seised  or  possessed  of  any  property  in  their  own 
name  liable  to  legal  sale  under  said  executions. 

That  prior  to  the  recovery  of  said  judgments  the  said  defendants, 
under  the  firm  name  aforesaid,  carried  on  the  business  of  merchants 
and  traders  in  the  city  of  St.  Augustine,  in  the  county  of  St.  Johns 
aforesaid,  and  that  said  judgments  were  recovered  for  goods,  wares 
and  merchandise  sold  and  delivered  to  them.  That  by  the  terms  of 
the  articles  of  copartnership  under  which  said  defendants  carried  on 
the  said  business,  the  defendant  Sophia  R.  Carr  had  the  control  and 
direction  of  the  business  of  said  firm,  and  that  in  the  purchase  of 
goods  and  management  of  the  business  of  said  firm  she  had,  under 
said  articles,  a  controlling  interest  and  voice.  That  your  orators 
sold  and  delivered  the  goods,  wares  and  merchandise  to  the  defend- 
ants upon  the  credit  and  financial  responsibility  of  the  defendant, 
Sophia  R.  Carr,  and  at  the  request  of  the  said  Sophia  R.  Carr  as  one 
of  said  firm. 

That  your  orators  had  been  informed  and  believed,  prior  to  the 
sale  of  said  goods,  by  the  defendants  and  by  the  said  Sophia  R.  Carr, 
that  the  said  Sophia  R.  Carr  had  a  large  income  from  property  held 
in  trust  for  her  general  use  and  benefit,  both  in  the  state  of  Florida 
and  in  the  commonwealth  of  Massachusetts,  and  that  such  property  so 
held  in  trust,  or  the  income  thereof,  or  both,  would  be  ample  security 
for  and  liable  and  subject  to  the  payment  of  any  obligations  or  judg- 
ments against  said  defendant  Sophia  R.  Carr;  and  reposing  confidence 
in  the  credit  of  said  Sophia  R.  Carr,  arising  from  said  trust  estate, 
they  sold  and  delivered  said  goods,  wares  and  merchandise  to  the 
defendants. 

That  defendant  Sophia  R.  Carr  is  the  widow  of  one  Burrough  E. 
Carr,  and  that  said  Burrough  E.  Carr  died  intestate  some  time  prior 
to  the  formation  of  said  firm  oi  B.  E.  Carr  6^  Co.,  and  prior  to  the 
sale  and  delivery  to  defendants  of  said  goods,  wares  and  merchandise. 
That  for  several  years  subsequent  to  the  death  oi^zS.^  Burrough  E. 
Carr  the  said  Sophia  R.  Carr  received  her  support  and  maintenance 
chiefly  from  the  business  and  goods  and  merchandise  of  said  firm  of 
B.  E.  Carr  e?*  Co.,  and  not  out  of  the  trust  estate  hereafter  set  forth. 

903  Volume  5. 


6650.  CREDITORS'  SUITS.  6650. 

That  the  defendant  Caleb  W.  Loring  is  a  brother  of  the  defendant 
Sophia  R.  Carr,  and  holds  in  trust  in  the  commonwealth  oi  Massachu- 
setts for  the  said  Sophia  R.  Carr  a  large  amount  of  valuable  real  and 
personal  property,  and  that  the  income  thereof  by  way  of  rents  and 
interest,  or  otherwise,  is  largely  in  excess  of  the  necessary  and  proper 
expenditures  for  the  support  and  maintenance  of  the  said  Sophia  R. 
Carr.  That  the  defendant  James  Burt  is  a  trustee,  as  hereinafter 
stated,  for  the  said  Sophia  R.  Carr.,  and  as  such  trustee  is  seised  in 
fee,  and  has  the  possession  of,  a  large  quantity  of  valuable  real  estate 
in  the  city  of  Palatka  aforesaid. 

That  on  or  about  the  thirteenth  day  oi  March,  a.  d.  i%52,  one  Robert 
R.  Reed  and  Mary  his  wife,  and  Burrough  E.  Carr  and  Sophia  his  wife, 
and  George  Burt  and  Lucy  his  wife,  all  of  the  city  of  Palatka  afore- 
said, sold  and  conveyed  by  deed  in  fee  unto  one  Isaac  H.  Branson,  as 
the  party  of  the  second  part,  dihont  twelve  hundred dicres  of  land  situate 
in  and  about  what  is  now  the  city  of  Palatka.  That  on  the  twenty- 
second  day  of  March,  a.  d.  i85^,  as  your  orators  are  informed  and 
believe,  the  said  Isaac  H.  Branson  duly  made  a  declaration  of  trust 
under  the  deed  aforesaid  in  favor  of  the  said  Sophia  R.  Carr  and 
Lucy  Burt,  whereby  the  said  Sophia  and  Lucy  were  declared  the  cestuis 
que  trust  of  the  said  property  conveyed  to  Isaac  H.  Branson  as  afore- 
said, and  the  said  Isaac  H.  Branson  promised  and  bound  himself  to 
manage  and  control  said  tract  of  land  under  certain  restrictions,  and 
to  pay  over  to  each  of  the  said  cestuis  que  trust  or  beneficiaries,  or  to 
their  heirs  and  assigns,  one-third  of  the  net  proceeds  arising  from 
said  lands,  either  by  sale  or  otherwise.  That  said  declaration  of 
trust  has  never  been  recorded  in  said  Putnam  county  or  elsewhere, 
to  the  knowledge  of  your  orators,  who  have  no  knowledge  of,  and 
have  no  means  of  ascertaining  the  exact  terms  and  provisions  of  said 
declaration  of  trust,  except  by  discovery  from  the  defendant. 

That  on  or  about  the  twenty-sixth  day  oi  May,  a.  d.  i855,  the  said 
Burrough  E.  Carr,  Sophia  R.  Carr,  George  Burt  and  Lucy  Burt  exe- 
cuted an  instrument  in  writing  in  the  presence  of  witnesses  wherein 
it  is  recited  that  a  declaration  of  trust  was  declared  by  the  said  Isaac 
H.  Branson,  on  the  twenty-second  day  of  March,  a.  d.  \%52,  of  the 
character  hereinbefore  stated,  and  wherein  it  is  further  recited  that 
on  the  fifteenth  day  oi  May,  a.  d.  i855,  the  said  Burrough  E.  Carr  Sind 
George  Burt,  and  the  said  Isaac  H.  Branson,  made  and  executed  an 
agreement  whereby  it  was  agreed  and  provided  that  said  Isaac  H. 
Branson  should  be  and  was,  from  and  after  the  date  thereof,  released 
and  discharged  from  the  further  execution  of  said  trust,  and  from 
all  liability  on  account  thereof  to  said  cestui  que  trust. 

And  your  orators  further  complain  and  say  that  by  the  terms  and 
effect  of  the  aforesaid  instrument  bearing  date  the  tiventy-si-xth  day 
of  May,  A.  D.  1 855,  the  said  Burrough  E.  Carr  and  Sophia  his  wife, 
and  George  Burt  and  Lucy  his  wife,  appointed  the  defendant  James 
Burt  as  the  person  to  take  the  legal  title  to  said  real  estate,  and 
thereby  direct  and  authorize  and  require  the  said  Isaac  H.  Branson 
to  convey  all  the  said  real  estate  then  undisposed  of  in  fee  to  the 
said  James  Burt,  who  is  to  hold  the  property  in  trust,  and  to  execute 
to  the  said  parties  to  said  instrument  such   declarations  of  trust  as 

904  Volume  5. 


6650.  CREDITORS'  SUITS.  6660. 

might  hereafter  be  agreed  upon.  That  soon  after  the  aforesaid 
instrument  was  executed  the  said  Isaac  H.  Bronson  did  execute  and 
deHver  a  deed  of  conveyance  of  said  real  estate  to  the  defendant 
James  Burt,  whereby  the  legal  title  passed  and  vested  absolutely  in 
the  said  James  Burt.  That  while  it  is  notorious  and  generally  known 
in  said  county  of  Putnam  that  the  deed  last  aforesaid^was  executed 
and  delivered,  said  deed  has  never  been  recorded  in  said  county. 
That  on  the  //«></ day  of  August,  a.  d.  i855,  the  said  James  Burt  did 
execute  and  deliver  a  declaration  of  trust  in  favor  of  said  defendant 
Sophia  R.  Carr,  whereby  he  agreed  and  bound  himself  to  hold  a  cer- 
tain portion  of  said  real  estate  hereinafter  specified  in  trust  for  the 
said  Sophia  R.  Carr,  her  heirs  and  assigns.  That  in  the  said  decla- 
ration of  trust  last  mentioned  it  is  duly  recited  that  James  Burt 
aforesaid,  at  the  instance  and  request  of  the  said  Burrough  E.  Carr 
and  Sophia  his  wife  and  George  Burt,  had  conveyed  absolutely  in 
fee  simple,  by  deed  bearing  date  the  third  day  of  August  aforesaid, 
one-half  of  the  unsold  part  of  said  Palatka  tract  property  then 
remaining  in  his  hands  to  George  Burt.  That  said  lands  held  in  trust 
by  the  said  James  Burt  for  the  said  Sophia  R.  Carr,  her  heirs  and 
assigns,  have  been  divided  into  city  lots  in  the  city  of  Palatka.  That 
before  the  declaration  of  trust  last  aforesaid  was  made,  the  part  of 
said  trust  property  or  real  estate  originally  conveyed  to  said  Isaac 
H.  Bronson  as  aforesaid,  which  belonged  to  and  was  intended  for  the 
said  Lucy  Burt,  had  been  duly  set  apart  to  her;  and  that  the  said 
Lucy  Burt  departed  this  life  several  years  ago,  and  that  her  heirs 
have  no  interest  whatever  in  the  aforesaid  lots  claimed  as  the  por- 
tion of  the  defendant  Sophia  R.  Carr. 

That  on  or  about  the  tenth  day  of  November,  a.  d.  i870,  the  said 
Sophia  R.  Carr,  Maria  J.  Carr,  Annie  C.  Gilbert  and  Joh?t  T.  Carr, 
the  widow  and  heirs  of  said  Burrough  E.  Carr,  made  and  executed  a 
certain  writing  under  seal  to  Wilkinson  Call,  Esq.,  wherein  it  is  recited 
that  certain  real  estate  in  the  city  of  Palatka  aforesaid,  meaning  the 
real  estate  hereinbefore  mentioned,  was  conveyed  to  Jafties  Burt  by 
said  Burrough  E.  Carr  in  his  lifetime,  and  that  said  James  Burt  had 
made  a  declaration  of  trust  of  said  property  for  the  use  and  benefit 
of  said  Sophia  R.  Carr.  That  said  declaration  had  not  been  recorded, 
and  that  said  Sophia  R.  Carr  desired  said  trust  to  be  made  of  record 
and  placed  beyond  a  doubt,  and  to  make  the  said  Wilkinson  Call 
trustee,  and  to  make  the  trust  to  her  irrevocable.  That  after  such 
recital  the  said  writing  purports  to  be  a  power  of  attorney  to  the  said 
Call  to  sell  said  real  estate  provided  it  can  be  sold  for  twenty-four 
thousand  dollars,  and  to  invest  the  proceeds  in  bonds  of  the  United 
States,  the  bonds  to  be  held  by  said  Call  under  his  sole  control  and 
direction  in  trust  for  said  Sophia  R.  Carr.  That  after  the  execution 
of  said  writing  to  said  Call,  the  defendant  Sophia  R.  Carr  lost  her 
confidence  in  said  Call,  and  pretended  to  be  alarmed  for  the  safety 
of  her  property.  That  afterward,  to  wit,  on  or  about  the  twenty- 
ninth  day  of  December,  a.  d.  i87-?,  she  the  said  Sophia  R.  Carr  and 
the  said  Wilkinson  Call  made  and  executed  a  certain  deed  or  instru- 
ment under  seal,  to  the  defendant  Caleb  W.  Loring,  whereby  the  said 
Sophia  R.  Carr  and  the  said  Caleb  W.  Loring  pretended  that  all  the 

905  Volume  5. 


6650.  CREDITORS'  SUITS.  6650. 

interest  of  the  said  Sophia  R.  Car?-  in,  to  and  of  the  said  real  estate 
was  conveyed  to  the  said  Loriiig.  That  the  consideration  expressed 
in  the  deed  last  aforesaid  is  seventeen  hundred  and  sixty-seven  dollars 
and  seven  cents,  and  other  good  and  valuable  considerations,  but 
your  orators  aver  that  the  defendant  Caleb  W.  Loring  did  not  pur- 
chase said  real  estate  in  good  faith  for  good  and  valuable  and 
adequate  consideration,  and  did  not  pay  anything  of  value  for  said 
deed  to  him;  that  said  deed  is  a  mere  pretense  and  device  entered 
into  between  said  Sophia  R.  Carr  and  said  Caleb  W.  loring  for  the 
double  purpose  of  wresting  from  the  said  Wilkinson  Call  any  authority 
or  control  which  he  then  was  supposed  to  have  over  the  said  property, 
and  to  protect  the  interest  of  the  said  Sophia  R.  Carr  in  said  lands 
and  lots  aforesaid,  and  to  place  said  property  beyond  the  reach  of 
your  orators. 

That  said  Loring  was,  before  said  pretended  deed  was  made,  a 
trustee  for  said  Sophia  R.  Carr,  and  as  such  trustee  from  time  to 
time  did  hand  over  money  arising  from  said  trust  estate  held  by  him 
to  the  said  Sophia  R.  Carr;  and  that  if  any  money  was  delivered  to 
the  said  Sophia  by  the  said  Loring  at  the  time  said  deed  was  made, 
it  was  the  money  of  the  said  Sophia,  or  money  of  the  said  Loring 
advanced  by  the  said  Sophia,  as  a  mere  color  or  pretense,  to  be  reim- 
bursed out  of  said  trust  estate  held  by  said  Loring. 

That  the  goods,  wares  and  merchandise  aforesaid  were  sold  and 
delivered  before  the  last  aforesaid  deed  was  given,  and  said  B.  E. 
Carr  6^  Co.  were  then  indebted  for  the  same,  and  by  such  deed  said 
Sophia  R.  Carr  and  said  Caleb  W.  Loring  hoped  and  intended  to 
defraud  your  orators  out  of  their  demands.  That  said  deed  last 
mentioned  is  a  mere  colorable  deed,  and  not  real  and  bona  fide;  and 
that  if  it  were  otherwise,  the  said  Caleb  W.  Loring,  if  he  acquired  any 
interest  in  said  real  estate,  acquired  the  same  with  notice  that  James 
Burt  aforesaid  held  the  legal  title  thereto  and  property  aforesaid,  in 
trust  as  aforesaid.  And  your  orators  aver  that  the  said  Caleb  W. 
Loring  SLud  the  said  Sophia  R.  Carr  are  now  and  have  been  for  some 
time  endeavoring  to  persuade  the  smd  James  Burt  to  convey  by  deed 
in  fee  the  said  land  and  city  lots  to  the  said  Caleb  IV.  Loring  for  the 
purpose  of  obstructing  your  orators  and  other  creditors  in  the  recov- 
ery of  their  demands. 

That  said  Caleb  W.  Loring,  in  his  answer  filed  the  nineteenth  day  of 
March,  a.  d.  iZ72,  to  a  suit  brought  in  said  Circuit  Court  of  Putnam 
county,  Florida,  hy  James  R.  Van  Brunt  and  Henry  L.  Slaight  against 
said  Sophia  R.  Carr,  James  Burt  and  Caleb  W.  Loring,  admitted  that 
the  legal  title  to  said  land  and  lots  was  vested  in  the  said  James 
Burt.  That  the  said  real  estate  in  Palatka  aforesaid  is  estimated 
to  be  of  the  value  of  twenty  thousafid  dollars,  and  that  said  Sophia  R. 
Carr  has  and  receives,  and  is  entitled  to  receive  from  the  property 
held  in  trust  in  the  commonwealth  of  Massachusetts  by  the  said  Caleb 
W.  Loring,  an  annual  income  of  several  thousand  dollars,  which  is 
largely  in  excess  of  the  amount  necessary  for  her  support  and  main- 
tenance. And  your  orators  aver  that  they  have  been  informed,  not 
only  by  the  aforesaid  defendant  and  declaration,  but  otherwise,  and 
believe  and  allege  to  be  the  fact,  that  neither  the  said  James  Burt  nor 

906  Volume  5. 


6851.  CREDITORS'  SUITS.  6651. 

the  said  Loring  holds  any  of  the  trust  property  aforesaid  upon  the 
specific  trust  to  apply  the  income  for  the  support  of  the  said  Sophia 
R.  Carr. 

That  said  Sophia  R.  Carr  promised  to  pay  some  of  the  creditors  of 
the  said  firm  of  B.  E.  Carr&'  Co.  out  of  the  money  arising  from  said 
trust  estate  in  the  commonwealth  of  Massachusetts,  but  now  refuses  so 
to  do,  and  pretends  and  alleges  that  said  trust  estate  Is  not  subject 
to  the  payment  of  said  creditors. 

To  the  end,  therefore,  that  the  said  /afnes  Burt  and  Caleb  IV. 
Loring,  trustees  as  aforesaid,  each  pay  over  to  your  orators  whatever 
sum  or  sums  of  money  now  are,  or  which  shall  at  any  time  hereafter 
become,  payable  to  the  said  Sophia  R.  Carr  under  the  provisions  of 
said  trusts,  in  satisfaction  and  payment  of  said  judgments,  until  the 
same  have  been  fully  satisfied,  together  with  all  interest  which  has 
accrued  or  shall  hereafter  accrue  thereon,  and  the  costs  of  this  pro- 
ceeding; and  that  the  said  Sophia  R.  Carr  be  adjudged  a  debtor  of 
your  orators  in  respect  of  the  premises,  and  be  ordered  to  execute 
and  deliver  to  said  trustees  a  full  discharge  of  all  claims  against  them 
as  such  trustees  under  the  provisions  of  said  trusts,  to  the  extent  of 
said  payments  so  ordered  by  the  trustees  to  be  made  to  your  orators, 
and  that  your  orators  may  have  such  other  and  further  relief  in  the 
premises  as  their  case  requires  and  to  your  honor  seems  meet.  May 
it  please  your  honor  to  grant  unto  your  orators  the  state's  writ  of 
subpoena  directed  to  the  said  Sophia  R.  Carr,  John  T.  Carr,  James 
IV.  Allen,  James  Burt,  George  Burt  and  Caleb  W.  Loring,  command- 
ing them  and  each  of  them  at  a  certain  time  and  under  a  certain 
penalty  therein  to  be  inserted  personally  to  appear  before  your  honor, 
and  then  and  there  to  answer  all  and  singular  the  premises,  and  to 
stand  to  and  perform  and  abide  such  order  and  decree  therein,  as  to 
your  honor  shall  seem  meet. 

John  Dunning. 

H.  Bishop,  Jr.,  James  Palmer. 

Of  Counsel  for  Complainants.  F.  S.  Selover 

(  Verification,  y-  John  Doe. 

9.  To  Enjoin  Transfer  of  Note  and  Fopeclosure  of  Mortg-age 
Held  by  Debtor  and  to  Apply  Same  to  Plaintiff's  Claim. 

Form  No.  6651.' 

Bristol,  ss.  Supreme  Judicial  Conxt,) 


Almon  H.  Tucker  in  Eq. 

vs. 

John  McDonald  et  als. 


AprilT erm,  i870. 


1.  As  to  the  verification  of  a  bill  in  reach  and  apply  in  payment  of  his  debt 
equity  in  Florida,  see  vol.  3,  p.  435,  property  of  the  debtor  which  cannot  be 
note  5.  come   at   to  be  attached   or   taken  on 

2.  This  form  is  copied  from  the  record  execution,  although  the  debt  is  secured 
in  the  case  of  Tucker  v.  McDonald,  105  by  mortgage. 

Mass.   423,  in  which  case  it   was   held         Consult  note  i,  p.  874,  supra. 
that  a  creditor  may  maintain  his  bill  to 

907  Volume  5. 


6651.  CREDITORS'  SUITS.  6651. 

Bill  in  Equity. 

Respeotfully  shows  Almon  H.  Tucker  of  Attleborough  in  said  county, 
that  on  the  twenty-ninth  day  oi  June.,  A.  D.  i8^6\  John  McDonald  of 
said  Attleborough.,  dind  John  Turner,  then  of  said  Attleborough,  but  now 
believed  to  be  in  Philadelphia,  gave  their  promissory  note,  for  value 
received,  for  the  sum  of  one  thousand  dollars,  payable  to  one  Edward 
McDonald  or  order,  in  two  years  from  its  date;  a  copy  of  said  note  is 
as  follows:  (^Here  was  set  out  a  copy  of  note.) 

And  the  plaintiff  says  that  on  the  twenty-fourth  day  of  July,  A.  D. 
\Z68,  's,z\di  Edward  McDonald,  payee  of  said  note,  duly  assigned  and 
transferred  said  note  to  the  plaintiff,  and  he  now  holds  the  same, 
there  being  due  thereon  the  principal  and  interest  from  said  twenty- 
fourth  day  oi  July,  iS68. 

And  the  plaintiff  says  that  said  John  McDonald  and  John  Turner, 
makers  of  said  note,  have  no  property  known  to  him  which  can  be 
come  at  to  be  attached  or  taken  on  execution  in  a  suit  at  law  against 
them;  but  he  says  that  on  the.  fourteenth  day  oi  July,  a.  d.  iWS,  said 
John  Turner,  one  of  said  makers,  being  indebted  to  said  John  Mc- 
Donald, the  other  maker,  in  the  sum  of  nine  hundred do\\a.rs,  then  gave 
him  his  negotiable  promissory  note  for  said  nine  hundred  dollars, 
payable  one-third  in  one  year,  and  two-thirds  in  three  years  from  same 
date,  and  at  the  same  time  gave  him  a  mortgage  on  certain  personal 
property  therein  mentioned  to  secure  said  note;  a  copy  of  said  mort- 
gage is  hereto  annexed,  marked  ^,  and  made  a  part  of  this  bill;  and 
%2\A  John  McDonald  no-^  owns  and  holds  said  nine  hundred  doWds  note 
and  mortgage  as  security  for  the  payment  of  the  last  instalment  of 
six  hundred  doWsLTS,  which  will  fall  due  thereon  July  IJf,  A.  D.  i2>69. 

And  the  plaintiff  says  that  subsequently  to  the  making  of  said 
nine  hundred  doWdiX  note  and  mortgage,  <s,2i\d  John  Turner,  the  maker 
thereof,  sold  and  transferred  to  one  Robert  Wolfenden,  of  sa.id  Attle- 
borough, all  his  remaining  interest  in  the  personal  property,  so  mort- 
gaged, and  said  Wolfenden  took  possession  of  the  same  and  then 
agreed  with  said  Turner  to  assume  and  pay  said  six  hundred  dollars, 
when  the  same  should  become  due;  and  said  Wolfenden  is  now  ready 
and  willing  to  pay  the  same  to  said  John  McDonald,  or  to  any  of  his 
creditors  to  whom  he  may  become  liable  in  law  or  equity  to  pay  the 
same. 

Wherefore,  inasmuch  as  the  plaintiff  has  no  plain,  adequate  and 
complete  remedy  at  law  for  the  collection  of  his  one  thousand  dollar 
note,  he  prays  that  said  Robert  Wolfenden  may  be  enjoined  from  pay- 
ing the  balance  of  %z\d  nine  hundred  doUar  note  to  ssLid  John  Mc- 
Donald, or  to  his  order,  but  may  be  ordered  to  pay  the  same,  when 
due,  to  this  plaintiff  in  partial  payment  of  his  one  thousand do\\a.r  note; 
and  that  said  John  McDonald  may  be  enjoined  from  assigning  or 
transferring  said  nine  hundred  dollar  note  and  mortgage  to  any  other 
person,  and  from  collecting  or  receiving  payment  of  the  same,  and 
from  taking  any  steps  to  foreclose  said  mortgage,  or  take  possession 
of  said  mortgaged  property,  and  from  every  act  or  thing  to  compel 
the  payment  thereof  by  said  Robert  Wolfenden,  until  the  further  order 
of  this  court,  or  some  justice  thereof;  and  that  such  other  orders 
and  decrees  may  be  made  as  justice  and  equity  require. 

908  Volume  5. 


6652.  CREDITORS'  SUITS.  6652. 

And  that  a  subpoena  may  issue  to  said  John  McDonald,  John  Turner 
and  Robert  Wolfenden  to  appear  and  answer  to  this  bill,  the  plaintiff 
hereby  waiving  the  oath  to  said  answers. 

Almon  H.  Tucker. 

Attleborough,  July  2nd,  i  W9. 

(  Verification  as  in  Form  No.  66^.1. ) 

II.  TO  OBTAIN  DISCOVERY  OF  PROPERTY  OF  JUDGMENT  DEBTOR.^ 

Form  No.  6652.* 

Supreme  Court,  City  and  CoMnty  of  New  York. 

William  Hart,  Jr. ,  plaintiff, 

against 

Charles  H.  Albright  and  Joseph 

Steindler,  defendants. 

The  complaint  of  the  above  named  plaintiff  shows  to  this  court: 

I.  That  on  the  first  day  of  May,  i897,  at  the  city  and  county  of  New 
York,  in  the  Supreme  Court  in  and  for  the  city  and  county  of  New 
York,  in  this  state,  the  plaintiff  recovered  a  judgment,  which  was 
duly  rendered  by  said  court  against  the  defendant  for  one  thousand 
dollars. 

II.  That  on  said  day  said  judgment  was  docketed  in  the  office  of 
the  clerk  of  said  county,  and  on  the  sixth  day  of  May,  iS98,  a  tran- 
script thereof  was  filed,  and  the  said  judgment  was  docketed  in  the 
clerk's  office  of  the  city  and  county  of  New  York,  in  this  state. 

III.  That  on  the  eighth  day  of  May,  iS98,  an  execution  in  due  form 
was  issued  upon  the  said  judgment  against  the  personal  and  real 
property  of  the  defendant,  to  the  sheriff  of  said  city  and  county  of 
New  York,  in  which  county  the  defendant  then  resided. 

IV.  That  the  said  execution  has  been  duly  returned  by  said  sheriff 
wholly  unsatisfied. 

V.  That  a  short  time  before  the  commencement  of  the  action  in 
which  the  judgment  was  obtained,  and  after  the  indebtedness  upon 
which  the  said  judgment  was  obtained  had  accrued,  the  said  defend- 
ants were,  and  for  several  years  previous  thereto  had  been,  engaged 
in  mercantile  business  at  No.  515  Broadway,  in  the  city  and  county 
of  New  York,  and  as  plaintiff  is  informed  and  believes,  various 
persons  became  indebted  to  them  to  a  large  amount,  and  that  these 
said  defendants  had  at  the  commencement  of  this  action  debts 
due  them  to  a  large  amount,  to  wit,  to  an  amount  not  less,  as 
plaintiff  is  informed  and  believes,  than  the  sum  of  one  thousand 
dollars,  a  considerable  portion  of  which  are  evidenced  by  charges 
on  their  books   of  account,  which    plaintiff    is  unable    to    see   and 

1,  Consult  note  i,  p.  874,  sttpra.  mentary  proceedings,   his  right  to   an 

2.  This  form,  except  for  the  caption,  action  upon  grounds  which  formerly 
is  the  complaint  in  the  case  of  Hart  v.  would  have  sustained  a  creditor's  bill 
Albright,  28  Abb.  N.  Cas.  (N.  Y.  Super,  to  obtain  discovery  of  property  con- 
Ct.)  74,  in  vvhich  case  it  was  held,  not-  cealed,  withheld  and  transferred  in 
withstanding  the  relief  afforded  by  the  fraud  of  creditors  is  still  preserved, 
code  to  a  judgment  creditor  by  supple- 

909  Volume  5. 


6653.  CREDITORS'  SUITS.  6653. 

examine,  and  therefore  unable  to  specify,  and  cannot  learn  and 
does  not  know  the  particular  items  or  amounts  of  said  indebted- 
ness or  the  names  of  the  several  persons  from  whom  the  same  are  due, 
but  is  informed  and  believes  that  several  of  them  owing  defendants, 
in  the  aggregate,  a  sum  of  not  less  than  one  thousand  dollars,  reside  in 
the  city  a«</ county  oi  New  York  and  are  solvent  and  able  to  pay  the 
respective  claims  against  them. 

VI,  Upon  information  and  belief  that  at  or  before  the  commence- 
ment of  the  action  in  which  said  judgment  was  obtained,  the  said 
defendants  conveyed  and  assigned  to  persons  to  the  plaintiff  unknown, 
and  whose  names  the  plaintiff  is  unable  to  learn,  certain  property 
debts  and  choses  in  action  belonging  to  said  defendants  to  a  certain 
amount,  to  wit,  to  an  amount  not  less  than  five  thousand  dollars,  in 
fraud  of  their  creditors  and  of  the  plaintiff;  and  that  after  satisfying 
all  lawful  claims  of  these  assignees  against  the  defendants  there  still 
remains  over  and  above  said  claims  and  due  and  payable  to  said 
defendants  a  certain  large  amount,  to  wit,  an  amount  not  less  than 
one  thousand  dollars. 

Wherefore  the  plaintiff  demands: 

(i)  That  the  said  defendants  be  adjudged  to  apply  to  the  amount 
of  said  judgment  and  interest  thereon,  together  with  the  costs  of  this 
action,  said  property  debts,  things  in  action  and  equitable  interests 
belonging  to  them  or  held  in  trust  for  them  or  in  which  they  are  in 
in  any  way  or  manner  beneficially  interested. 

(2)  That  they  are  enjoined  from  selling,  transferring  or  interfering 
with  said  property  debts,  things  in  action  and  equitable  interests. 

(3)  That  a  receiver  may  be  appointed  of  all  said  property,  equi- 
table interests,  things  in  action  and  effects  of  the  said  defendants, 
and  said  defendants  directed  to  execute  to  him  an  assignment 
thereof,  and  said  receiver  sell  or  otherwise  dispose  of  the  same  and 
convert  the  same  into  money  as  soon  as  may  be,  and  that  said  receiver 
apply  so  much  of  the  proceeds  thereof  as  may  be  necessary  for  that 
purpose  to  the  payment  of  the  plaintiff's  said  debt  with  interest  and 
the  costs  of  this  action, 

(4)  And  for  such  other  and  further  relief  as  may  be  just. 

Betts^  Atterbury,  Hyde  q^  Betts, 

Attorneys  for  Plaintiffs. 

III.  BY  Creditors  of  a  corporation.^ 
1.  For  Ratable  Distribution  of  Assets. 

Form  No.  6653. 

(Precedent  in  Baxter  v.  Moses,  77  Me.  466.)' 

State  of  Maine,  Cumberland,  ss.  William  H.  Baxter,  of  Deering,  in 
the  county  oi  Cumberland,  aforesaid,  complains  against:   Oliver  Moses, 

1.  Consult  note  i,  p.  874,  supra,  tions  of  nulla  bona.  This  error,  how- 
See  also  the  title  Corporations,  ante,  p.  ever,  has  been  remedied  by  the  insertion 
523-  of  such  an  allegation.     See  infra,  note 

2.  A  demurrer  to  this  bill  was  sus-  i,  p.  912, 

tained  on  the  ground  that  it  contained         Consult  note  i,  p.  874,  supra, 
no  allegation  of  a  return  on  the  execu- 

910  Volume  5. 


6653.  CREDITORS'  SUITS.  6653. 

Galen  C.  Moses,  John  H.  Kimball,  Charles  Russell  and  James  D.  Robin- 
son, of  Bath,  in  the  county  of  Sagadahoc,  and  William  P.  Frye,  of 
Lewiston,  in  the  county  oi  Androscoggin,  and  Edwin  Plummer,  of  Lis- 
bon, in  said  county  of  Androscoggin,  and  the  Androscoggin  Rail- 
road Company,  a  corporation  duly  chartered  by  law  and  doing  busi- 
ness in  said  county  of  Cumberland,  and  represents  and  avers: 

1.  That 'prior  to  \.\it.  first  day  oi  January,  a.  d.  \Z58,  the  said 
Androscoggin  Railroad  Company  was  duly  chartered  and  organized 
under  the  laws  of  this  state  and  operated  a  railroad,  by  it  constructed 
under  the  provisions  of  their  charter  from  a  point  near  Leeds  Junction, 
on  the  railroad,  then  known  as  \he.  Androscoggin  and  Kennebec  Rail- 
road, in  the  county  oi  Androscoggin,  to  the  town  oi  Farming  ton,  in  the 
county  of  Franklin. 

2.  That  subsequent  to  said  period  of  time,  said  Androscoggin  Rail- 
road Company  contracted  and  operated  an  extension  of  said  railroad, 
from  said  point  on  ^2^6.  Androscoggin  and  Kennebec  Railroad  to  the 
town  of  Brunswick,  in  said  county  of  Cumberland,  and  to  the  city  of 
Lewiston,  in  said  county  of  Androscoggin,  and  still  operate  the  same 
through  the  said  company  or  their  lessees. 

3.  That  upon  %2\di  first  day  oi  January,  a.  d.  i  85^,  the  ^^xA  Andro- 
scoggin Railroad  Company  duly  issued  its  bonds,  to  the  amount  of  two 
hundred  thousand  dollars,  in  several  denominations,  by  the  provisions 
of  which  the  principal  was  payable  at  the  office  of  the  treasurer  of 
said  company,  on  the  first  day  oi  January,  a.  d.  i876>,  in  the  stock  of 
the  company,  at  par,  and  the  interest  thereon  was  payable  semi- 
annually, on  the  first  ddij  oi  January  dixxd  July,  in  each  and  every 
year  after  said  date  oi  January  1,  iS58,  and  annexed  to  said  bonds 
coupons,  to  the  amount  of  the  several  semiannual  interest  sums 
coming  due  thereon.  Said  bonds  were  payable  to  S.  If.  Read,  or 
bearer,  and  issued  under  the  seal  of  said  company. 

4.  That  said  bonds  remain  unpaid  and  undischarged  in  principal 
and  interest  to  the  extent  hereinafter  described,  to  wit:  {Here  were 
described  the  unpaid  bonds  and  coupons  annexed  to  each  bond.) 

5.  That  your  complainant  is  the  legal  owner  of  said  bonds  and 
coupons,  and  the  amounts  due  upon  them  are  due  to  him,  the  said 
complainant. 

6.  That  said  Oliver  Moses,  Galen  C  Moses,  John  H.  Kimball,  Charles 
Russell,  James  D.  Robinson,  William  P.  Frye  and  Edwin  Plummer  are 
directors  of  %2\di  Androscoggin  Railroad  Company.  That  Sdad  John  JL. 
Kimball  is  president  and  said  Galen  C.  Moses  is  treasurer  of  said 
company. 

7.  That  said  persons  have  held  said  offices  and  trusts  for  a  long 
time  heretofore,  and  as  such  trustees  and  officers  have  taken  the 
income  and  profits  of  said  railroad,  and  now  hold  large  amounts  of 
money  on  account  of  and  belonging  to  said  railroad  company. 

8.  That  said  railroad  company  hold  no  other  property  than  that  so 
as  aforesaid  taken  and  held  by  said  persons. 

9.  That  said  complainant  is  a  creditor  of  said  Androscoggin  Rail- 
road Company,  beyond  and  beside  the  amount  of  said  bonds  and 
coupons,  upon  and  to  the  amount  of  the  following  described  claims, 
viz:     (Jf ere  followed  a  description  of  seven  judgments.) 

911  Volume  5. 


6653.  CREDITORS'  SUITS.  6653. 

[That  said  judgments  so  recovered  in  manner  aforesaid  remaining 
in  full  force  and  effect,  and  the  costs,  and  charges  of  suit  and 
damages  aforesaid  unpaid  and  unsatisfied,  complainant,  on  t\\^  first 
day  ^January,  a.  d.  \^80,  for  the  purpose  of  obtaining  satisfaction 
of  said  judgments,  sued  and  prosecuted  out  of  said  court  writs  of 
fieri  facias,  directed  to  the  sheriff  of  said  Ctimberland  coMnty,  by  which 
said  writs  the  said  sheriff  was  commanded  that  of  the  goods,  chattels, 
lands  and  tenements  of  the  said  Androscoggin  Railroad  Company  he 
cause  to  be  made  the  sums  of  {setting  out  the  amounts  to  be  made  under 
each  execution'),  which  complainant  in  said  court  recovered  against  said 
defendant,  the  Androscoggin  Railroad  Cofnpany;  and  that  afterwards, 
to  wit,  on  or  about  the  twenty  first  day  oi  January,  a.  d.  i2>80,  the 
sheriff  of  said  county  returned  on  the  said  writ  to  him  in  that  behalf 
directed  and  delivered  him  as  aforesaid,  that  after  due  search  he  had 
been  unable  to  find  within  said  county  of  Cu?nberland  any  goods, 
chattels,  lands  or  tenements  of  the  said  Androscoggin  Railroad  Com- 
pany, whereof  the  amount  of  said  judgment  and  execution,  or  any 
part  thereof,  could  be  made,  as  by  the  said  writs  of  fieri  facias,  and 
the  returns  of  the  said  sheriff  indorsed  thereon  as  aforesaid,  now  on 
file  in  the  office  of  the  clerk  of  the  said  court,  will  more  fully 
appear.]  1 

That  the  said  complainant  has  demanded  of  the  said  Androscoggin 
Railroad  Company,  and  said  directors  and  treasurer,  at  the  office  of  the 
treasurer  of  said  company,  the  payment  of  said  bonds  and  coupons, 
according  to  the  terms  and  conditions  of  said  instrument,  and  offered 
to  surrender  said  bonds  and  coupons  as  required  by  the  terms  therein 
recited,  and  the  payment  of  the  other  claims  held  by  your  complain- 
ant herein  before  described,  and  payment  of  each  and  every  and  all 
of  said  bonds  and  coupons  and  other  claims  was  by  said  company, 
directors  and  treasurer  refused,  and  have  never  been  paid  or  other- 
wise discharged  to  the  time  of  the  making  of  this  complaint,  but  now 
remains  in  full  force,  and  due  to  your  complainant. 

That  said  directors  and  treasurer  have  received  large  amounts  of 
money  belonging  to  said  company,  and  have  unlawfully  and  fraudu- 
lently distributed  the  same  among  themselves,  and  are  still  holding 
the  same,  to  an  amount  more  than  sufficient  to  pay  the  claims  of 
your  complainant  herein  before  described,  and  all  other  lawful  claims 
against  said  company,  in  fraud  of  your  complainant's  rights  in  the 
premises;  that  he  can  not  reach  said  funds,  by  attachment,  or  any 
process  in  the  courts  of  law  granted,  or  practiced,  and  is  in  danger  of 
losing  his  whole  claim  and  demand  against  said  company  by  the 
fraudulent  and  unlawful  acts  and  practices  of  said  directors  and 
treasurer,  without  such  relief  as  your  honors  may  grant  him  in 
equity. 

And  your  complainant  is  informed  and  believes,  and  therefore 
charges,  that  the  said  directors  and  treasurer  have  received  from  the 
Maine  Central  Railroad  Company,  a  corporation  existing  under  the 
laws  of  this  state,  a  large  sum  of  money  for  the  use  and  lease  of  said 
railroad  of  said  Androscoggin  Railroad  Company,  to  wit:  the   sum  of 

_    1.  The  words  and  figures  enclosed  by  []  have  been  added  to  correct  the  defect 
in  the  bill  pointed  out  in  the  judgment. 

913  Volume  5. 


6653.  CREDITORS'  SUITS.  6653. 

two  hundred  and  sixty-three  thousand  dollars  and  now  hold  the  same; 
that  the  particular  days  and  times  when  so  received,  and  the  par- 
ticular individuals  of  said  board  of  officers  to  whom  said  sum  was  paid, 
he  is  unable  now  to  give  information  to  the  court,  but  does  charge 
and  inform  the  court  that  said  sum  was  received  by  the  directors  of 
said  Androscoggin  Railroad  Company^  from  said  Maine  Central  Railroad 
Company^  and  is  now  held  by  said  respondents. 

And  the  complainant  is  informed  and  believes,  and  therefore 
charges,  that  said  respondents  received  from  the  Maine  Central  Rail- 
road Company,  on  account  of  a  lease  of  said  Androscoggin  Railroad, 
executed  a.  d.  i87i,  to  wit:  on  the  twenty-ninth  day  oi  June,  a.  d. 
i87i,  the  sum  of  thirty-three  thousand  thirty-three  hundred  and  thirty- 
three  dollars  and  thirty-three  cents,  and  scrip  of  said  Maine  Central 
Railroad  Company  to  the  amount  and  value  of  one  hundred  and  ten 
thousand  dollars,  and  two  thousand  shares  of  the  capital  stock  of  said 
Maine  Central  Railroad  Company  of  the  value  of  one  hundred  and  twenty 
thousand  dollars,  and  all  of  the  value  of  two  hundred  and  sixty-three 
thousand  three  hundred  and  thirty-three  dollars  and  thirty-three  cents, 
and  that  said  directors  have  fraudulently  and  without  lawful  authority 
distributed  the  proceeds  of  the  same  among  themselves,  and  now 
withhold  the  same  from  the  creditors  of  said  Androscoggin  Railroad 
Co?npany,  and  in  fraud  of  their  rights  in  the  premises. 

And  your  complainant  avers  that  the  said  Oliver  Moses,  Galen  C. 
Moses,  John  H.  Kimball,  Charles  Russell,  James  D.  Robinson,  William 
P.  Frye  and  Edwin  Plummer,  hold  in  their  own  names  and  under 
their  control,  nearly  all  the  stock  of  the  said  Androscoggin  Railroad 
Company,  to  wit,  a  much  greater  number  than  a  majority  in  number 
of  said  shares,  the  exact  number  of  which  is  to  your  complainant  un- 
known, and  that  they  control  the  action  of  said  company  in  their  own 
interests  and  fraudulently  combine  against  the  interests  of  the  cred- 
itors of  said  company,  to  withhold  all  the  property,  so  as  aforesaid 
received,  from  the  creditors  of  said  company,  and  neglect  and  refuse 
to  make  any  report  or  return  of  their  doings  and  actings  as  said  offi- 
cers, and  have  so  neglected  for  more  than  ten  years  last  past,  or  to 
give  any  information  of  the  financial  condition  of  said  company, 
although  your  complainant  has  sought  such  information  through 
process  of  this  court,  and  that  he  can  not,  by  reason  of  their 
fraudulent  and  unlawful  practices,  obtain  a  satisfaction  of  his  claims 
of  the  said  company. 

And  your  complainant  further  represents  that  ne  brings  this  bill  in 
behalf  of  himself  and  all  other  unsatisfied  creditors  of  said  Andro- 
scoggin Railroad  Company,  who  shall  come  in  and  join  in  this  bill,  and 
by  leave  of  court  become  parties  thereto. 

And  now  your  complainant  seeks  relief  in  the  premises  of  this  court 
sitting  in  equity,  and  prays  that  said  respondents,  each  and  all  of 
them  severally,  be  required  to  make  full  answer  upon  their  several 
oaths  to  all  the  matters  herein  alleged,  and  for  general  relief  in  the 
premises,  as  well  as  for  the  special  relief  hereinafter  prayed  for. 

And  for  special  relief  he  prays  that  said  directors  may  be  held  to 
account  for  all  money  and  property  by  them  or  either  of  them  received 
for  and  on  account  of  said  Androscoggin  Railroad  Company,  since  the 
5  E.  of  F.  P.  — 58.  913  Volume  5. 


6654.  CREDITORS'  SUITS.  6654. 

twentieth  day  oi  June,  a.  d.  i87/,  and  for  all  money  and  property 
belonging  to  saki  company,  by  them  or  either  of  them  held  on  said 
twentieth  day  oi  June,  a.  d.  i87i,  to  the  end  that  the  same  may  be 
turned  over  to  a  receiver  for  such  disbursement  to  the  creditors 
of  the  company  as  they  are  entitled  to  have  in  the  payment  and 
extinguishment  of  their  claims  and  demands,  and. 

That  your  honors  will  appoint  a  receiver  to  receive  and  dispose 
such  money  and  property  and  make  such  orders  and  decrees  as  shall 
be  necessary  to  determine  the  manner  and  amount  of  disbursements 
to  be  made,  and. 

That  your  honors  will  appoint  a  master  to  determine  the  amount 
due  such  creditors  as  may  become  parties  to  this  bill. 

[And  your  complainant  prays  for  such  other  and  further  decrees 
as  to  the  court  may  seem  just  and  proper  in  the  premises. 

William  H.  Baxter. 

R  P.  Tapley,  Attorney  for  Complainant  in  Equity.  J^    . 

2.  To  Collect  Unpaid  Stock  Subscriptions.^ 


'  i  In  Chancery. 


Form  No.  6654. 

(Precedent  in  Haslett  v.  Wotherspoon,  i  Strobh.  Eq.  (S.  Car.)  209.)^ 

State  of  South  Carolina, 

Charleston  District. 

To  the  Honorable  the  Chancellors  of  the  said  State: 

Humbly  complaining,  show  unto  your  honors,  your  orators,  yi?/^^ 
Haslett,  Alexander  Robinson  and  William  Lloyd,  executors  of  the  last 
will  and  testament  oi  John  Haslett,  Esq.,  of  the  city  of  Charleston, 
deceased,  for  and  on  account  of  themselves,  and  all  other  creditors 
of  the  Charleston  New  Theater  Company,  who  shall  come  in  and  con- 
tribute to  the  expense  of  this  suit;  that,  heretofore,  to  wit,  in  the 
year  i855,  a  number  of  gentlemen  in  the  city  of  Charleston,  defend- 
ants in  this  suit,  voluntarily  associated  themselves  together  as  mem- 
bers of  a  joint  stock  company,  for  the  purpose  of  building  a  theater  in 
the  said  city,  by  means  of  funds  to  be  raised  by  themselves;  and  at 
a  meeting  of  the  subscribers  to  this  project,  held  on  the  tenth  day  of 
March,  i835,  it  was  resolved,  that  a  committee  oi  five  trustees  should 
be  elected  amongst  the  said  subscribers,  to  manage  all  matters  con- 
nected with  the  building  of  the  said  theater,  and  generally  to  act  for 
the  interests  of  all  concerned  in  furthering  the  objects  of  their  asso- 
ciation; whereupon,  the  following  gentlemen  were  duly  elected  trus- 
tees, to  wit:  Robert  Wotherspoon,  James  Rose,  Henry  Gourdin,  Richard 
W.  Cogdell  and  William  A.  Carson,  Esqs.,  who  forthwith  proceeded 
to  the  discharge  of  the  various  duties  devolved  on  them,  as  the  man- 
agmg  committee  of  the  said  theater  company;  that  the  said  trustees, 

1.  The  words  enclosed  by  []  will  not  abolished  in  South  Carolina  and  the 
be  found  in  the  reported  case,  but  have  code  practice  substituted,  but  this  form 
been  added  to  render  the  form  complete,  is  inserted  in  its  entirety  owing  to  its 

2.  See  also  substance  of  a  similar  bill  value  as  a  precedent  of  this  particular 
in  Lane's  Appeal,  105  Pa.  St.  50.  class  of  bill  in  those  states  where  the 

3.  The   chancery   practice   has   been  chancery  practice  still  obtains. 

914  Volume  5. 


6654.  CREDITORS'  SUITS.  6654. 

on  behalf  of  themselves  and  their  associates,  having  contracted  to 
purchase  a  lot  of  land  as  a  site  for  the  theater,  it  was  resolved,  at 
a  meeting  held  by  them,  on  the  twelfth  day  of  March,  iS35,  that  they 
would  immediately  proceed  to  procure  plans,  and  estimates  for  con- 
tracts, for  building  the  said  theater,  according  to  a  general  plan 
then  adopted  by  them;  that  in  consequence  of  an  invitation  to  that 
effect,  proposals  were  soon  after  submitted  to  the  said  "trustees,  by 
Messrs.  Fogartie  6^  Sutton,  bricklayers,  for  the  brick-work  necessary 
for  the  building  of  the  said  theater,  for  the  sum  oi  fourteen  thousand 
dollars,  and  by  Messrs.  Ephriam  Curtis  and  Company,  carpenters,  for 
the  wood- work  necessary  thereto,  for  the  sum  of  thirteen  thousand  five 
hundred  dollars;  which  said  proposals  were  accepted  by  the  said  trus- 
tees, on  the  seventeenth  day  of  February,  iSS7,  and  were  afterwards 
embodied  in  the  shape  of  written  agreements  between  the  said  trus- 
tees, for  and  on  account  of  themselves  and  their  associates,  of  the 
one  part,  and  the  said  contractors,  Fogartie  &"  Sutton,  and  Ephriam 
Curtis  and  Company,  respectively,  of  the  other  part;  that  the  said 
contracts  for  building  the  said  theater  were  faithfully  performed,  to 
the  entire  satisfaction  of  their  employers,  the  trustees  aforesaid,  who 
from  time  to  time  paid  large  sums  of  money  to  the  said  Fogartie  er» 
Sutton,  and  Ephriam  Curtis  and  Company,  on  their  building  contracts 
aforesaid,  by  the  hands  of  George  W.  Logan,  Esq.,  who  had  been 
appointed  by  the  said  trustees,  as  the  treasurer  of  the  said  theater  com- 
pany ;  that  on  the  twenty-seventh  day  of  February,  iS38,  Ephriam  Curtis, 
of  the  firm  of  Ephriam  Curtis  and  Company,  for  money  then  due  them 
by  the  said  theater  company  on  their  contract  above  mentioned,  gave 
his  draft  to  Francis  Lance,  Esq.,  for  the  sum  oi  fifteen  hundred  dollars, 
payable  thirty  days  after  date,  on  George  W.  Logan,  treasurer  as 
aforesaid,  which  said  draft  was  duly  accepted  by  the  said  George  IV. 
Logan,  as  the  treasurer  of  the  said  theater  company,  but  not  paid  at 
maturity,  for  want  of  funds;  that  on  the  tenth  day  of  March,  i838, 
Robert  Wotherspoon,  Esq.,  then  chairman  of  the  board  of  trustees,  for 
the  purpose  of  paying  Messrs.  Fogartie  &>  Sutton  a  large  sum  of 
money  then  due  them  on  their  contract  aforesaid,  gave  to  the  said 
Fogartie  er*  Sutton  his  draft  for  the  sum  of  two  thousand  dollars  on 
George  JV.  Logan,  treasurer,  payable  eight  days  after  date,  and  charge- 
able to  the  account  of  the  said  building  contract  of  Fogartie  &•  Sut- 
ton, which  draft  was  also  duly  accepted,  but  not  paid  at  maturity,  for 
want  of  funds;  that  the  said  drafts  are  now  the  property  of  your 
orators,  as  executors  of  the  last  will  of  their  testator,  yohn  Haslett, 
as  part  of  the  assets  of  his  estate  left  by  him  at  his  decease. 

Your  orators  further  show  unto  your  honors,  that  after  the  said 
contracts  were  entered  into  between  the  said  trustees  and  the  said 
contractors,  Fogartie  6^  Sutton,  and  Ephria7n  Curtis  and  Company,  in 
fact,  after  the  theater  itself  had  been  erected  and  ready  for  use,  to 
wit,  on  the  seventeenth  day  of  December,  i837,  the  said  trustees,  Robert 
Wotherspoon,  James  Rose,  Henry  Gourdin,  Richard  Cogdell  and  William 
A.  Carson,  Esqs.,  and  their  associates  in  the  said  theater  company, 
were  incorporated  by  the  legislature  of  South  Carolina,  a  body  cor- 
porate, for  the  purpose  of  building  and  conducting  a  theater  in 
the  city  of  Charleston,  by  name  and   style  of  the   Charleston  New^ 

915  Volume  5. 


6654.  CREDITORS'  SUITS.  6654. 

Theater  Company^  with  a  then  capital  of  sixty  thousand  dollars;  that 
the  charter  so  granted  was  duly  accepted^  at  a  meeting  of  the  sub- 
scribers to  the  association  aforesaid,  held  on  the  twenty-eighth  day  of 
February,  iS38,  in  pursuance  of  a  call  to  that  effect  in  the  several 
newspapers  of  Charleston,  and  that  the  said  Robert  Wother spoon,  James 
Rose,  Henry  Gourdin,  Richard  W.  Cogdell  and  William  A.  Carson, 
Esqs.,  were  continued  in  the  managing  direction  of  the  said  corpora- 
tion, under  their  former  style  of  trustees,  and  were,  from  time  to 
time,  elected  by  the  said  company,  as  the  trustees  or  directors 
thereof,  until  the  company  became  utterly  insolvent,  and  ceased  to 
meet  for  the  transaction  of  any  business  connected  with  the  said 
theater. 

Your  orators  further  show  unto  your  honors,  that  their  testator, 
confiding  in  the  solvency  of  the  said  incorporated  company,  which 
was  held  out  to  the  world  in  their  charter,  with  an  actual  and  paid  in 
capital  of  sixty  thousand  dollars  at  the  time  of  their  incorporation, 
brought  an  action  at  law  against  the  said  Charleston  New  Theater 
Company,  on  the  drafts  aforesaid,  in  which  action  a  verdict  was  had 
for  the  plaintiff  therein,  and  judgment  entered  up  against  the  said 
theater  company,  on  Xht  first  day  of  February,  i8^0,  for  the  sum  of 
four  thousand  and  sixteen  dollars  and  ninety-five  cents,  of  which  sum 
the  amount  oi  fifteen  hundred  dollars  was  afterwards,  to  wit, -on  the 
twenty-first  day  of  February,  i8^i,  paid  to  your  orators'  testator,  in 
part  satisfaction  of  the  debt  due  on  said  judgment,  by  George  W. 
Logan,  Esq.,  treasurer  of  the  said  company,  by  whom  all  previous  pay- 
ments had  been  made  on  the  contracts  aforesaid,  out  of  which  the 
said  debt  arose. 

And  your  orators  have  been  advised,  that  the  confidence  of  their 
testator,  that  the  said  Robert  IVother spoon,  James  Rose,  He7iry  Gourdin., 
Richard  IV.  Cogdell  and  William  A.  Carson,  and  their  associates  in  the 
said  incorporated  theater  company,  possessed  at  the  time  of  their 
incorporation  an  actual  capital  of  sixty  thousand  dollars,  was  well  and 
truly  founded  on  the  plain  intent  and  meaning  of  their  charter,  and 
was  strengthened,  also,  by  the  fact,  that  the  legislature  has  taken  no 
precaution  to  provide  for  the  paying  in  of  the  said  capital,  or  any 
part  thereof,  prior  to  and  before  the  said  individuals  should  be  allowed 
to  exercise  their  corporate  privileges,  nor  imposed  any  responsibility 
of  a  pecuniary  kind  on  the  members  of  the  company,  as  the  legisla- 
ture had  taken  special  care  to  provide  in  the  case  of  other  associations 
incorporated  by  the  same  act. 

And  your  orators  further  show  unto  your  honors,  that  the  execu- 
tion which  issued  on  the  judgment  aforesaid,  against  the  goods  and 

1.  It  was  held  in  this  case  that  a  bill  paid  in,  as  set  forth  in  the  charter;  but 

may  be  maintained  by  a  creditor  of  a  where    an    association    afterward    be- 

corporation    which   has    not    sufficient  comes  incorporated  it  must  be  alleged 

assetstosatisfy  all  its  creditors,  against  and  proved  that    there  has  been  some 

the  individual  corporators  who  will  be  act  or  expression  on  the    part  of    the 

held  individually  liable  to  make  good  individuals  of  the  association  to  signify 

the   deficiency,    including   that    which  their  acceptance  of  the  charter  in  order 

may    arise     from    the    insolvency    of  to  charge  them  in  the  character  of  cor- 

any    of    the    corporators,    to    the    ex-  porators. 

tent   of    the    capital    professed   to   be         Consult  note  i,  p.  874,  supra. 

916  Volume  5. 


6654.  CREDITORS'  SUITS.  6654. 

chattels  and  real  estates  of  the  Charleston  New  Theater  Company,  has 
been  returned  by  the  sheriff  of  Charleston  District,  unsatisfied;  because 
he  could  find  no  property;  real  or  personal,  belonging  to  the  said 
company,  out  of  which  the  money  due  on  the  said  execution  could 
be  made. 

And  your  orators  in  fact  show  unto  your  honors,  that  the  said 
theater  company  is  hopelessly  insolvent;  and  that  they  have  no 
visible  means  of  paying  their  debts,  except  their  building,  the  Neitr 
Theater,  the  fee  simple  of  which,  subject  to  the  mortgages  thereon, 
has  been  lately  sold  under  an  execution  against  the  said  company,  for 
a  small  sum  of  money,  without  paying  any  part  of  your  orator's  debt; 
and  that  the  said  company  has  ceased  to  hold  any  meetings  for  the 
transaction  of  business,  or  the  election  of  officers  for  several  years 
past,  and  that  the  said  company  is,  to  all  practical  purposes,  entirely- 
dissolved  by  their  own  acts;  possessing  at  present  neither  the  ability 
nor  the  disposition  to  carry  their  original  project  into  execution,  and 
against  whom  a  judgment  in  law,  or  a  decree  of  this  Honorable 
Court,  would  be  of  no  more  avail  to  your  orators  in  obtaining  pay- 
ment of  their  debt,  than  would  be  a  judgment  against  any  admitted 
pauper. 

As  your  orators  further  show  unto  your  honors,  that  at  the  time 
the  said  Robert  Wotherspoon,  James  Rose,  Henry  Gourdin,  Richard  Cog- 
dell,  William  A.  Carson,  and  their  associates,  were  incorporated,  the 
said  theater  association  were  actually  indebted  to  a  large  amount  for 
the  building  of  the  said  theater,  on  the  contracts  aforesaid,  made  by 
their  managing  committee,  the  said  trustees,  who  have,  since  the  act 
of  incorporation,  assigned  and  transferred  to  the  said  incorporated 
company  all  the  real  estate  which  they  held  as  trustees  of  the  theater 
association  aforesaid. 

And  your  orators  further  show  unto  your  honors,  that  they  have 
been  advised  that  no  act  of  incorporation  could  relieve  the  said  trus- 
tees and  their  associates  from  the  payment  of  debts,  which  they 
owed  for  the  construction  of  the  said  theater,  on  contracts  made 
between  the  said  trustees  and  the  said  Fogartie  cr*  Sutton  and  Ephriant 
Curtis  and  Company;  and  least  of  all,  that  no  act  of  the  said  trustees 
and  their  associates  can  divest  them,  so  far  as  the  rights  of  your 
orators  are  concerned,  of  a  liability  which  attaches  to  all  and  every 
member  of  the  said  theater  association  on  their  contracts  made  by 
the  said  trustees,  as  a  committee  in  behalf  of  the  said  association; 
and  although  your  orators  have  been  advised  that  the  said  trustees 
are  personally  and  individually  liable  on  the  contracts  made  by  them 
for  building  \.\iQ.  New  Theater,  yet  your  orators,  actuated  by  a  sense 
of  justice  which  revolts  at  enforcing  their  claims  only  against  those 
who  have  in  good  faith  acted  as  the  agents  of  others,  who  are  equally 
liable  with  themselves,  have  been  induced  to  forego  any  such  remedy 
against  the  trustees  merely,  and  to  appeal  to  your  honors  for  such 
relief  against  the  said  trustees  and  their  associates,  as  the  nature  of 
the  case  requires,  in  justice  and  good  faith  to  all  parties  concerned. 

And  your  orators  have  accordingly,  both  by  themselves  and  their 
agents,  applied  to  and  requested  the  said  trustees  and  their  asso- 
ciates, defendants  in  this  cause,  to  pay  them  the  several  sums  of 

917  Volume  5. 


6654.  CREDITORS'  SUITS.  6654. 

money  due  them  on  the  contracts  made  by  the  said  trustees  with 
Fogartie  &'  Sutton,  and  \v'\t\\  Ephraim  Curtis  and  Company,  as  above  men- 
tioned; and  your  orators  well  hoped  that  such,  their  just  and  reason- 
able requests,  would  have  been  complied  with,  as  in  justice  and  equity 
they  ought  to  have  been;  but  now  so  it  is,  may  it  please  your  honors, 
the  said  trustees  and  their  associates,  contriving  how  to  injure  and 
oppress  your  orators  in  the  premises,  absolutely  refuse  to  comply 
with  your  orators'  aforesaid  reasonable  request.  And  to  countenance 
such  their  unjust  conduct,  they  the  said  trust  ees  and  their  associates, 
pretend  that  they  are  not  personally  liable  for  any  contracts  or  agree- 
ments made  by  the  said  trustees,  for  building  the  said  theater,  but 
that  their  liability  is  restricted  to  the  payment  of  their  individual 
subscriptions,  which  they  have  already  paid  in  to  the  joint  fund,  and 
beyond  which  payment  they  never  agreed  or  expected  to  be  bound 
for  any  expenditures  growing  out  of  the  building  of  the  said  theater; 
whereas  your  orators  charge  the  contrary  to  be  true,  and  that  each 
and  every  member  of  the  said  theater  association  is  liable  in  his  own 
private  estate  for  the  entire  debts  incurred  by  them  for  building  the 
said  theater,  on  contracts  entered  into  before  their  incorporation; 
and  that  as  to  subsequent  creditors  who  trusted  the  Chariestoti  New 
Theater  Company  on  the  faith  of  their  charter,  your  orators  charge 
that  the  stockholders  of  the  said  theater  company  are  compellable  in 
this  honorable  court,  in  favor  of  their  creditors,  to  make  up  among 
themselves  so  much  of  their  capital  of  sixty  thousand  dollars,  as  the 
said  company  has  not  actually  expended  in  building  and  conduct- 
ing a  theater  in  Charleston,  and  to  hold  the  same  as  a  fund  to  which 
the  said  creditors  may  have  recourse  for  the  payment  and  satisfaction 
of  their  debts  against  the  said  company,  which  they  had  trusted  on 
the  full  assurance  of  their  possessing  such  an  amount  of  capital 
actually  paid  in,  before  the  granting  and  acceptance  of  their  charter. 
All  which  actings,  doings  and  refusals  of  the  said  trustees  and  their 
associates  are  contrary  to  equity  and  good  conscience,  and  tend  to 
the  manifest  wrong  and  injury  of  yOur  orators. 

In  consideration  whereof,  and  forasmuch  as  your  orators  are  with- 
out remedy  in  the  premises  at  common  law,  and  cannot  have  ade- 
quate relief  except  in  the  court  of  equity,  where  matters  of  this  sort 
are  properly  cognizable  and  relievable,  to  the  end,  therefore,  that 
the  said  trustees,  Robert  Wotherspoon,  James  Rose,  Henry  Gourdin, 
Richard  IV.  Cogdell  and  William  A.  Carson,  and  their  associates  in 
the  said  theater  company,  who  are  impleaded  in  this  Honorable 
Court,  for  and  on  account  of  themselves  and  other  members  of  the 
said  association,  who  are  not  made  personally  parties  to  this  suit,  by 
reason  of  the  delay,  vexation  and  difficulty  that  would  inevitably 
result  from  any  attempt  to  bring  such  numerous  parties  before  the 
court,  may,  upon  their  several  and  respective  corporal  oaths,  accord- 
ing to  the  best  and  utmost  of  their  several  and  respective  knowledge, 
remembrance  and  belief,  full,  true,  perfect,  and  distinct  answers 
make,  to  all  and  singular  the  matters  aforesaid,  and  that  as  fully 
and  particularly  as  if  the  same  were  here  repeated,  and  they  there- 
unto severally  and  respectively  distinctly  interrogated;  and  more 
especially,  that  the  said  trustees  and  their  associates  may,  in  manner 

918  Volume  5. 


6654.  CREDITORS'  SUITS.  6654. 

aforesaid,  answer  and  set  forth  whether  the  said  trustees  did  not, 
on  or  about  the  twenty-seventh  day  of  February,  iS37,  or  at  some 
other  time,  enter  into  certain  contracts  with  Messrs.  Fogartie  6^  Sut- 
ton., bricklayers,  and  Messrs.  Ephrairn  Curtis  and  Company.,  carpenters, 
for  the  building  of  the  New  Theater  in  Charleston.,  as  your  orators 
have  hereinbefore  set  forth;  and  whether  the  said  trustees  were  not 
parties  to  the  said  contracts,  for  and  on  account  of  themselves  and 
their  associates,  subscribers  for  building  a  theater  in  Charleston;  and 
whether  they  did  not  from  time  to  time,  by  their  treasurer,  George 
W.  Logan,  Esq.,  pay  large  sums  of  money  to  the  said  Fogartie  6^  Sut- 
ton, and  Ephrairn  Curtis  and  Company,  for  and  on  account  of  the  said 
building  contracts;  and  whether  the  said  drafts  accepted  by  the 
said  Logan,  as  aforesaid,  were  not  for  and  on  account  of  money  due 
to  the  said  contractors  for  their  work,  labor  and  materials  used  and 
employed  in  building  the  said  theater,  and  furnished  at  the  request 
of  the  said  trustees,  and  whether  the  said  drafts  have  ever  been 
paid,  except  partially  by  a  payment  oi  fifteen  Mmdred  dollars,  made 
by  George  W.  Logan,  Esq.,  treasurer,  on  account  of  the  said  debt  to 
your  complainant's  testator,  on  the  tiuenty-first  day  of  February,  \8Jf.l', 
and  whether  your  orators  have  not,  by  themselves  and  their  agents, 
made  such  application  and  requests  as  are  hereinbefore  in  that  behalf 
mentioned,  and  whether  the  said  trustees  and  their  associates  have 
not,  each  and  all  of  them,  refused  to  comply  therewith,  and  why; 
and  that  the  said  trustees  and  the  rest  of  the  members  of  the  said 
theater  association  may  be  compelled,  by  and  under  the  decree  and 
direction  of  this  Honorable  Court,  to  pay  your  orators  whatever  may 
be  found  due  to  them  on  the  drafts  aforesaid;  and  that,  for  and  on 
account  of  such  parties  who  may  hereafter  come  in  as  aforesaid,  and 
who  are  only  creditors  of  the  Charleston  New  Theater  Company  as  a 
corporate  body,  the  said  defendants  may  account  for  the  amount  of 
capital  that  has  been  paid  in  by  them,  as  stockholders  thereof,  and 
declare  whether  the  same  has  been  expended  in  building  and  con- 
ducting a  theater  in  Charleston-,  and  distinctly  set  forth  what,  in  fact, 
was  the  amount  of  their  capital  at  the  time  of  their  incorporation, 
and  how  the  same  has  been  invested;  and  whether  any  call  has  been 
made  upon  the  stockholders,  to  make  up  among  themselves,  by 
assessment  or  contributions,  the  amount  of  sixty  thousand  do\\a.rs,  or, 
at  least,  so  much  as,  with  the  property  of  the  company,  may  be  suffi- 
cient to  pay  their  debts;  and  that  the  said  defendants,  as  stock- 
holders of  the  said  Charleston  Nejv  Theater  Company,  may  be  directed, 
by  and  under  the  decree  of  this  Honorable  Court,  by  contributions 
and  assessments  among  themselves,  to  make  up  the  whole  amount 
of  their  capital  set  forth  in  their  charter,  not  expended  in  building 
and  conducting  a  theater  in  Charleston,  for  the  purpose  of  paying  the 
debts  of  the  said  company,  and  to  hold  the  same  as  a  trust  fund  for 
the  benefit  of  their  creditors,  who  have,  in  good  faith,  trusted  them, 
on  the  reasonable  belief  that  they  actually  had,  at  the  time  of  their 
incorporation,  that  amount  of  capital  which  their  charter  held  them 
out  to  the  world  as  possessing;  and  that  your  orators  may  have  such 
other  and  further  relief  in  the  premises  as  to  your  honors  shall  seem 
meet,  and  the  nature  and  justice  of  the  case  may  require. 

919  Volume  5. 


6654.  CREDITORS'  SUITS.  6654. 

May  it  please  your  honors  to  grant  unto  your  orators  a  writ  of 
subpoena,  to  be  directed  to  Robert  Wotherspoon,  James  Rose,  Henry 
Gourdin,  Richard  Cogdell  and  Williajn  A.  Carson,  trustees  and  stock- 
holders of  the  Charleston  New  Theater  Company;  and  also  to  William 
Aiken,  Daniel  Blake,  Ker  Boyce,  Thomas  A.  Coffin,  John  Crawford, 
John  Fraser,  Joseph  E.  Glover,  James  Hamilton,  Wade  Hampton,  Leon 
Herckenrath,  William  C.  Heyward,  Moses  D.  Hyams,  Joseph  Lawton,  Vin- 
cint  Le  Seigneur,  David  C.  Levy,  George  W.  Logan,  Thomas  O.  Lo7vndes, 
Charles  A.  Magrvood,  N.  Russell  Middleton  and  Ralph  J.  Middleton,  ex- 
ecutors of  Arthur  Mid'dleton,  Henry  A.  Middleton,  Oliver  H.  Middleton, 
Thomas  Milliken,  Otis  Mills,  Moses  C.  Mordecai,  Reuben  Moses,  Will- 
iam Patton,  James  L.  Pettigru,  James  Rose,  Ralph  S.  Izard  and 
Stephen  D.  Doar,  executors  of  Thomas  Pinckney,  Robert  Pringle, 
Lewis  A.  Pitray,  William  Ravenal,  Samuel  P.  Ripley,  Thomas  J.  Roger, 
Thaddeus  Street,  John  Strohecker,  Abraham  Tobias,  Elias  Vanderhorst, 
Joshua  J.  Ward,  Charles  Warley  and  Aaron  S.  Willington,  members 
and  stockholders  in  said  company,  commanding  them  at  a  certain 
day,  and  under  a  certain  penalty,  therein  to  be  limited,  personally  to  be 
and  appear  before  your  honors,  in  this  Honorable  Court,  and  then  and 
there  full,  true,  direct  and  perfect  answer  make  to  all  and  singular 
the  premises,  and  further,  to  stand  to,  perform  and  abide  such  fur- 
ther order,  direction  and  decree  therein,  as  to  your  honors  shall  seem 
meet. 

And  your  orators  will  ever  pray,  etc. 

920  Volume  5. 


CRIME   AGAINST  NATURE.^ 

By  B.  a.  Milburn. 

I.  WITH  HUMAN  BEING,  921. 

1.  In  General^  921. 

a.   Assault  with  Intent  to  Commit,  925. 

3.  Solicitation  to  Commit,  926. 

4.  Submission  to  Conwiission  of,  927. 

II.  BESTIALITY,  928. 

1.    With  Beast,  928. 
a.    With  Bird,  929. 

CROSS-REFERENCES. 

For  the  formal  parts  of  Criminal  Complaints,  generally,  see  the  title 
CRIMINAL  COMPLAINTS. 

For  the  formal  parts  of  Indictments,  generally,  see  the  title  INDICT- 
MENTS. 

For  the  formal  parts  of  Informations,  generally,  see  the  title  IN  FOR- 
MA TIONS. 

For  matters  of  Substantive  Law,  see  American  and  English  Ency- 
CLOPiEDiA  OF  Law  (2d  ed.),  title  SODOMY. 

For  matters  of  Procedure,  see  Encyclopaedia  of  Pleading  and  Prac- 
tice, title  SODOMY. 

I.  WITH  HUMAN  BEING. 
1.  In  General.2 

1.  The  term  "  crime  against  nature  "  is  continuing  do7vn  to*)  "  in  a  certain  room 
used  as  a  title  for  this  article,  some-  in  the  workhouse,  then  situate  in  the 
what  arbitrarily,  to  include  all  acts  of  parish  aforesaid,  in  and  upon  on^fane 
sexual  intercourse  against  the  order  of  Mason,  spinster,  then  a  virgin  of  eleven 
nature,  which  are  in  violation  of  the  years,  in  the  peace  of  God  and  our  said 
common  law,  or  which  are  denounced  lord  the  king,  then  and  there  being,  did 
by  statutes,  committed  by  a  human  be-  violently  and  feloniously  make  an  as- 
ing  either  with  another  human  being  sault,  and  then  and  there  the  saidya«^ 
or  with  an  animal,  or  otherwise.  The  Mason,  in  the  room  aforesaid,  did 
words  "  sodomy  "  and  "  buggery  "  are  wickedly,  diabolically,  feloniously,  and 
used  in  the  statutes  and  by  text-writers  against  the  order  of  nature,  carnally 
as  synonymous.  Bestiality  is  a  species  know  and  a  venereal  affair  in  the  funda- 
of  sodomy  or  buggery,  being  sexual  in-  ment  of  the  said  Jane  Mason  then  and 
tercourse  by  a  human  being  with  an  there  had;  and  her  the  said /fl««-^/ajtf«, 
animal,  beast,  or  bird.  See  Am.  &  then  and  there  wickedly,  diabolicaly, 
Eng.  Encycl.  of  L.,  titles  Bestiality;  feloniously,  and  against  the  order  of 
Buggery;  Sodomy.  nature,  in   the  said  fundament  of  her 

2.  By  Man  with  Woman.  —  In  2  Chit,  the  sa.\AJane  Mason,  then  and  there  did 
Cr.  L.  49,  is  given  the  following  form:  carnally  know,  and  that  sodomitical, 
(Commencing  as  in  Form  No.  66jj,  and  detestable,  and  abominable  sin  called 

921  Volume  5. 


6655. 


CRIME  AGAINST  NATURE. 


6655. 


Form  No.  6655. 

(Precedent  in  2  Chit.  Cr.  Law,  48.)' 

\^Middlesex.  The  jurors  for  our  lord  the  king  upon  their  oath 
present,]^  \\v2X  James  King,  late  of  [the  parish  of  Si.  Paul,  Covent  Gar- 
den, in  the  county  of  Middlesex,  yeoman, ]2  not  having  the  fear  of  God 
before  his  eyes,  nor  regarding  the  order  of  nature,  but  being  moved 
and  seduced  by  the  instigation  of  the  devil,  on  [the  twentieth  day  of 
February,  in  the  sixth  year  of  the  reign  of  our  sovereign  lord  George  the 
Fourth,  by  the  grace  of  God,  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  king,  defender  of  the  faith, ]2  with  force  and  arms  at^  [said 
parish  of  St.  Paul,  Covent  Garden,  in  the  county  oi Middlesex  aforesaid,* 
in  the  dwelling-house  of  one  George  Joties^  in  and  upon  one  Thomas 
Logan,^  a  youth  about  the  age  of  seventeen  years,  then  and  there  being, 
feloniously,^  did  make  an  assault,  and  then  and  there  feloniously, 
wickedly,  diabolically,  and  against  the  order  of  nature,*'  had  a  venereal 
affair'  with  the  said  Thomas  Logan,  and  then  and  there  carnally 
knew  the  said  Thomas  Logan,  [and]  then  and  there  feloniously, 
wickedly  and  diabolically,  and  against  the  order  of  nature,  with  the 
said  Thomas  Logan,  did  commit  and  perpetrate  the  detestable  and 
abominable^  crime  of  buggery^  (not  to  be  named  among  Christians), 


buggery  (not  to  be  named  among 
Christians),  then  and  there  with  the 
saXd  Jane  Mason,  wickedly,  diabolically, 
feloniously,  and  against  the  order  of 
nature,  committed  and  perpetrated,  to 
the  great  displeasure  of  Almighty 
God  "  {^concluding  as  in  Form  No.  66^^^. 
Chitty  cites  as  the  source  of  this  form 
Cro.  C.  C.  (7th  ed.)  230,  and  in  support 
of  the  proposition  that  an  indictment 
lies  for  this  offense,  Fortescue  91,  2 
Chit.  Cr.  L.  49,  note  z. 

1.  This  indictment,  observes  Chitty, 
is  similar  to  that  in  Co.  Ent.  35i<^, 
which  was  settled  on  great  advice.  2 
Chit.  Cr.  L.  48,  note  s. 

2.  The  words  in  [  ]  are  inserted  in 
order  to  make  the  form  complete. 

3.  Description  of  Place.  —  In  Co.  Ent. 
351b,  it  is  stated  to  have  been  com- 
mitted "  to  wit,   in  the  dwelling-house 

of  one  ,  there."     2  Chit.   Cr.  L. 

48,  note  t. 

4.  Description  of  Fathic. —  In  Co.  Ent. 
351b,  he  is  described  as  a  "  male  child." 
2  Chit.  Cr.  L.  48,  note  «. 

Description  of  Pathic  as  Human  Being.  — 
In  People  v.  Moore,  103  Cal.  508,  it 
was  charged  that  the  alleged  crime  was 
committed  "  in  and  upon  the  person  of 
Carl  Kohler,"  and  it  was  held  that  this 
was  a  sufficient  statement  that  it  was 
committed  with  a  human  being,  as  dis- 
tinguished from  an  animal. 

5.  Feloniously  Did  Assault. —  In  Co. 
Ent.  351/^  the  word  "feloniously"  is 
here  omitted.     2  Chit.  Cr.  L.  48,  note  iv. 


6.  Contra  Naturae  Ordinem,  etc.  —  The 

indictment  must  charge  that  the  oi- 
iender  contra  naturce  ordinem  rem  habuit 
veneream,  et  carnaliter  cognovit.  I  Rus- 
sell on  Crimes  (9th  ed.),  p.  938,  citing 
I  Hawk.  P.  C,  c.  4,  §  2,  and  3  Inst. 
58,  59.  But  in  Davis  v.  State,  3  Har. 
&  J.  (Md.)  154.  Nicholson,  J.,  said:  "  The 
crime  of  sodomy  is  too  well  known  to 
be  misunderstood,  and  too  disgusting 
to  be  defined  farther  than  by  merely 
naming  it.  I  think  it  unnecessary, 
therefore,  to  lay  the  carnaliter  cognovit 
in  the  indictment." 

7.  Bern  Habuit  Veneream.  —  The  omis- 
sion of  an  allegation  that  the  defendant 
"  had  a  venereal  affair,  "  etc.,  although 
such  an  averment  is  usual,  does  not 
vitiate  the  indictment,  as  such  allega- 
tion does  not  belong  to  the  class  of 
"particular  words  of  art  which  are  so 
appropriated  by  the  law  to  express  the 
precise  idea  which  it  entertains  of  the 
offense,  that  no -other  words,  however 
synonymous  they  seem,  are  capable  of 
doing  it,"  nor  is  the  use  of  the  omitted 
words  essential  to  make  the  statement 
of  the  offense  certain  to  a  certain  intent 
in  general.  Lambertson  v.  People,  5 
Park.  Cr.  Rep.  (N.  Y.  Supreme  Ct.)  200. 

8.  Abominable.  —  In  Co.  Ent.  351,  the 
words  "  ab  hominandum,"  meaning 
"inhuman"  were  used,  but  the  word 
now  usually  used  is  "abominable."  2 
Chit.  Cr.  L.  48,  note  jr. 

9.  Necessity  to  Describe  Offense  as  Bug- 
gery.—  It  has  been   said  that  it  is  not 


922 


Volume  5. 


6656. 


CRIME  AGAINST  NATURE. 


6656. 


to  the  great  displeasure  of  Almighty  God,  to  the  great  scandal  of  all 
human  kind,  against  the  form  of  the  statute^  [in  such  case  made  and 
provided, ]2  and  against  the  peace  [of  our  lord  the  king,  his  crown 
and  dignity. ]2 

Form  No.  6656.* 

In  the  District  Court  of  the  Second  Judicial  District  of  the  State  of 

Montana,  in  and  for  Silver  Bo7v  County. 
The  State  of  Montana,  Plaintiff, 

versus 
Napoleon  Chandonnet,  Defendant. 

At  a  regular  term  of  the  District  Court  of  the  Second  Judicial  Dis- 
trict of  the  State  of  Montana,  in  and  for  Silver  Boio  County,  begun 


sufficient  to  charge  that  the  offender 
contra  naturce  ordinem  rem  habuit  vcne- 
ream,  et  carnaliter  cognovit;  and  that  as 
the  statute  describes  the  offense  by  the 
term  "  buggery,  "  the  indictment  should 
also  charge  peccattimque  illud  sodomiti- 
cum  Anglice  dictum  buggery  adtunc  et 
ibidem  nequiter,  f e Ionic e,  diabotice,  ac 
contrh  naturam,  commisit,  ac perpetravit. 
I  Russell  on  Crimes  (9th  ed.),  p.  938, 
citing  Fost.  424,  who  referred  to  Co. 
Ent.  351(5,  as  a  precedent  settled  by 
great  advice.  See  also  State  v.  Will- 
iams, 34  La.  Ann.  87,  holding  that  the 
indictment  must  include  the  additional 
qualification  of  the  crime  as  "bug- 
gery." 2  Chit.  Cr.  L.  48,  note  j;  3  Inst. 
59;  and  I  East  P.  C.  480. 

Sodomitical  Practices.  —  In  Reg.  v. 
Rowed,  3  Q.  B.  179,  43  E.  C.  L.  688,  it 
was  charged  that  the  defendants  com- 
mitted with  each  other,  divers  "nasty, 
wicked,  filthy,  lewd,  beastly,  unnatural, 
and  sodomitical  practices,"  but  it  was 
not  alleged  what  acts  they  committed. 
Patteson,  J.,  said:  "  We  cannot  know  by 
these  general  indictments  what  the 
charge  is.  From  such  words  occurring 
in  common  parlance,  we  might,  per- 
haps, infer  it,  but  in  a  legal  view  we 
cannot." 

1.  Contra  Formam  Statati.  —  In  Davis 
V.  State,  3  Har.  &  J.  (Md.)  154,  *it  was 
held  that  as  the  judgment  of  the  court 
might  be  either  at  common  law  or  under 
the  act  of  assembly,  the  conclusion 
contra  formam  statuti  was  not  improper. 

2.  The  words  in  [  ]  are  inserted  in 
order  to  make  the  form  complete. 

3.  Tliis  form  is  taken  verbatim  from  the 
record  in  the  case  of  State  v.  Chando- 
nette,  10  Mont.  280.  The  indictment 
was  drawn  under  Mont.  Pen.  Code, 
tit.  9,  c.  4,  which  provides  punishment 
for  "  the  infamous  crime  against  nature 


committed  with  mankind,  or  any  an'- 
mal."  The  court  said  with  reference 
to  this  indictment:  "  That  pleading  is 
the  ordinary  common-law  indictment, 
which  is  approved  by  all  the  writers 
and  precedents,  and  against  the  validity 
of  which  no  authorities  are  cited  or  ar- 
guments made.  It  is  our  opinion  that 
the  indictment  is  good." 

Other  Precedents.  —  In  Lambertson  z/. 
People,  5  Park.  Cr.  Rep.  (N.  Y.  Supreme 
Ct.)  200,  the  indictment,  omitting  the 
formal  parts,  charged  as  follows:  "  That 
George  IV.  Lambertson,  now  or  late  of 
the  city  of  Brooklyn,  in  the  county  of 
Kings  aforesaid,  on  the  fifteenth  day  of 
January,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  sixty,  at 
the  city  and  in  the  county  of  Kings 
aforesaid,  in  and  upon  the  body  of 
Peter  Cohen,  in  the  peace  of  God  and  of 
the  said  people,  then  and  there  being 
with  force  and  arms,  did  feloniously 
make  an  assault,  and  him,  the  said 
Peter  Cohen,  then  and  there  feloniously, 
wickedly,  diabolically,  and  against  the 
order  of  nature,  carnally  knew,  and 
then  and  there  feloniously,  wickedly 
and  diabolically,  and  against  the  order 
of  nature,  with  the  said  Peter  Cohen, 
did  commit  and  perpetrate  the  detesta- 
ble and  abominable  crime  of  buggery, 
against  the  statute  in  such  case  made 
and  provided,  to  the  evil  example  of 
all  others  in  like  case  offending,  and 
against  the  peace."  etc. 

In  Wright  v.  State,  35  Tex.  Crim. 
Rep.  368,  the  indictment  was  sufficient 
and  was  as  follows:  "  In  the  name  and 
by  the  authority  of  the  State  of  Texas: 
The  grand  jurors,  good  and  lawful 
men,  of  the  State  of  Texas  and  of  the 
County  of  Mclennan,  duly  and  legally 
tried  on  oath  by  the  judge  of  the  Fifty- 
fourth  Judicial  District  of  Texas,  hold- 


923 


Volume  5. 


6656. 


CRIME  AGAINST  NATURE. 


6656. 


and  holden  at  the  Court  House  of  the  said  county,  on  the  sixth  day 
oi  January,  a.  d.  i8P(?,  and  continued  from  day  to  day  thereafter, 
by  the  adjournment  of  the  said  court,  from  day  to  day  thereafter,  until 
the  sixteenth  ^3,y  oi  April,  a.  d.  \W0,  on  which  last  mentioned  day  the 
Grand  Jury  of  the  said  county,  duly  drawn,  impaneled,  sworn  and 
charged  to  inquire  into  public  offenses  committed  in  the  said  county, 
upon  their  oaths  do  present  and  say:  That  one  Napoleon  Chandonnet, 
late  of  the  county  of  Silver  Bow,  state  of  Montana,  on  or  about  the 
Jirst  day  of  February,  A,  d.  \?>90,  at  the  county  of  Silver  Bow,  in  the 


ing  session  of  the  District  Court  in  and 
for  McLennan  County,  touching  their 
qualifications  as  grand  jurors,  duly 
elected,  impaneled,  sworn  and  charged 
to  diligently  inquire  into  and  true  pre- 
sentment make  of  all  offenses  against 
the  penal  laws  of  the  State  of  Texas, 
committed  within  the  body  of  the  coun- 
ty aforesaid,  in  session  in  said  county, 
upon  their  oaths  in  said  District  Court 
of  said  McLennan  County,  in  open 
court  present  that  on  or  about  the  jjth 
day  of  Aus^ust,  in  the  year  of  our  Lord 
eighteen  hundred  and  ninety-Jive,  and 
before  the  presentment  hereof,  with 
force  and  arms  in  the  county  and  State 
aforesaid,  Rufus  Wright  did  then  and 
there  unlawfully  and  against  the  order 
of  nature,  have  a  venereal  affair  with  a 
beast,  to-wit:  a  mule,  and  carnally 
knew  the  said  mule,  and  then  and  there 
and  thereby  did  commit  against  the  or- 
der of  nature,  the  abominable  and  de- 
testable crime  of  sodomy,  against  the 
peace  and  dignity  of  the  State." 

Under  Particular  Statutes  —  Alabama. 
—  In  Ala.  Crim.  Code  (i886),  p.  276, 
will  be  found  a  statutory  form  of  an  in- 
dictment for  this  offense. 

Connecticut.  ^Q^n.  Stat.  (1888),  § 
1522.  An  indictment  under  this  stat- 
ute, omitting  the  formal  parts,  should 
charge  as  follows:  "  that  at  the  town  of 
Salisbury,  in  the  county  of  Litchfield 
aforesaid,  William  A.  Jones  did  on  the 
first  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and 
ninety-six,  wickedly  and  unlawfully  and 
against  the  order  of  nature  have  carnal 
copulation  with  a  man,  to  wit,  Robert 
Smith,  against  the  peace  and  contrary 
to  the  statutes  in  such  case  made  and 
provided,  the  said  William  A.Jones  not 
being  forced  to  commit  the  aforesaid 
unnatural  and  unlawful  act,  and  the 
said  William  A.Jones  not  being  on  the 
day  aforesaid  under  fifteen  years  of 
age." 

Massachusetts.  —  Pub.  Stat.  Supp. 
(1887),  c.  436,  §  I.  An  indictment  un- 
der this   statute,  omitting  the  formal 


parts,  should  charge  as  follows:  "  that 
William  A.Jones,  late  of  Northampton, 
in  the  county  of  Hampshire,  on  Xht  first 
day  oi  January,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  ninety- 
six,  at  Northampton  aforesaid,  in  the 
county  of  Hampshire  aforesaid,  did  un- 
lawfully, knowingly,  and  wilfully,  com- 
mit an  unnatural  and  lascivious  act 
with  another  person,  to  wit,  Robert 
Smith,  against  the  peace,"  etc.  An  in- 
dictment charging  that  the  defendant, 
al  a  time  and  place  named,  "did  un- 
lawfully, and  feloniously  commit  a  cer- 
tain unnatural  and  lascivious  act," 
with  a  person  therein  named,  thus  fol- 
lowing the  language  of  the  statute 
without  further  description,  is  sufficient. 
Com.  V.  Dill,  160  Mass.  536,  in  which 
case  the  court  declared  that  the  indict- 
ment was  sufficient  without  reference 
to  the  provision  of  section  2,  and  post- 
poned "  to  some  future  time  a  consid- 
eration of  the  question  how  far  the 
legislature  may  go  in  simplifying  in- 
dictments." 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  §§ 
7020-1.  An  indictment  under  this  stat- 
ute, omitting  the  formal  parts,  should 
charge  as  follows:  "that  Alexander 
Bird,  late  of  said  county,  on  the  eighth 
day  of  November,  i2>go,  at  the  county 
aforesaid,  unlawfully  did  have  carnal 
copulation  with  one  Fannie  Smith,  in 
an  opening  of  the 'body  of  the  said 
Fannie  Smith  to-wit,  her  anus,  which 
said  opening  was  not  one  of  her  sexual 
parts,  contrary  to,"  etc. 

Cop&lation  in  Month.  —  In  the  follow- 
ing states  the  statutes  in  express  terms 
denounce  the  act  of  having  carnal 
knowledge  with  another  by  penetrating 
the  mouth: 

North  Dakota.  —  Rev.   Codes  (1895), 

§7187. 

An  indictment  under  this  section, 
omitting  the  formal  parts,  will  be  suffi- 
cient if  it  charges  that:  "  said  Alexander 
Bird,  on  the  first  day  oi  January,  l%g6, 
in  the  city  of  Fargo,  in  this  county,  did 
feloniously,  and  carnally,  know  a  male 
924  Volume  5. 


6657. 


CRIME  AGAINST  NATURE. 


6657. 


state  of  Montana,  did  in  and  upon  one  Patrick  Harrington,  then  and 
there  being,  wilfully,  unlawfully  and  feloniously  make  an  assault,  and 
then  and  there  feloniously,  wickedly  and  against  the  order  of  nature 
had  a  venereal  affair  with  the  said  Patrick  Harrington,  and  then  and 
there  feloniously  carnally  knew  him,  the  S2\di  Patrick  Harrington,  and 
then  and  there  did  feloniously,  wickedly  and  against  the  order  of 
nature  with  the  said  Patrick  Harrington  commit  and  perpetrate  "  the 
infamous  crime  against  nature,"  not  to  be  named  among  Christians. 
All  of  which  is  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided  and  against  the  peace  and  dignity  of  the  people  of  the 
state  of  Montana. 

John  T.  Baldwin, 
County  Attorney  of  Silver  Bow  Co.,  Mont. 

2.  Assault  with  Intent  to  Commit.^ 

Form  No.  6657. 

(Precedent  in  2  Chit.  Cr.  L.  50.)* 

{Commencing  as  in  Form  No.  6655,  and  continuing  down  to*)  in  and 
upon  one  John  Hotvard,"^  in  the  peace  of  God  and  our  said  lord  the 


person,  to  wit,  Charles  Davidson,  with 
the  mouth  of  him  the  said  Alexander 
Bird,  contrary  to  the  form,"  etc. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1327,  §  602. 

In  some  other  states  the  statutes  are 
broad  enough  to  cover  this  offense: 

Georgia.  —  3  Code  Ga.  (1895),  §  382. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1S96),  p.  1261,  par.  119;  Honselman  v. 
People,  i63  111.  172. 

Massachusetts.  —  Pub.  Stat.  (Supp. 
1887,)  c.  436,  ^  I. 

New  York.  —  Pen.  Code  N.  Y.,  §303. 

Ohio. — 2  Bates'  Anno.  Stat.  (1897), 
§7020-1. 

Under  Ordinary  Statutes.  —  Penetra- 
tion of  the  mouth  is  not  sodomy  within 
the  ordinary  statutes.  Rex  v.  Jacobs, 
R.  &  R,  C.  C.  331;  Prindle  v.  State,  31 
Tex.  Crim.  Rep.  551. 

1.  Assault  with  Intent  to  Commit.  —  In 
some  states  the  statutes,  in  terms,  de- 
nounce an  assault  with  intent  to  com- 
mit this  offense. 

Arizona.  —  Pen.  Code  (1887),  §  342. 

Georgia.  — 3  Code  (1895),  §  3S6. 

New  Mexico.  —  Comp.    Laws  (1897), 

§  1353- 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1328,  §  603. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
277,  ?  18. 

For  forms  in  prosecutions  for  assault 
with  intent  to  commit  crimes,  generally. 


see  the  title  Assault,  vol.  2,  p.  22S 
et  seq. 

Attempt  to  Commit  the  Crime. —  It  has 
been  said  that  upon  an  indictment  for 
this  offense  the  defendant  may  be  con- 
victed under  14  &  15  Vic,  c.  100,  ^  9, 
of  an  attempt  to  commit  the  same,  i 
Russell  on  Crimes  (9th  ed.),  p.  939, 
citing  I  Hale  670,  3  Inst.  59,  and  i  East 
P.  C.  c.  14,  §  2.  See  also  3  Ga.  Code 
(1895),  §  386,  denouncing  the  attempt 
to  commit  the  offense. 

Attempted  intercourse  with  cadaver  is 
prohibited  in  terms  in 

Minnesota.  — Stat.  (1894),  §  6554. 

New  York.  —  Pen.  Code,  §  303. 

2.  Chitty  refers  to  the  forms  in  Cro. 
C.  C.  (7ih  ed.)  167,  and  in  Cro.  C. 
C.  (8th  ed.)  61;  and  advises  that  if  it 
be  apprehended  that  the  two  acts  to 
complete  the  capital  offense  cannot 
be  proved,  the  indictment  should  be 
drawn  for  an  assault,  and  a  count  should 
be  added  charging  the  defendant  with 
soliciting  another  to  commit  buggery 
with  him.  2  Chit.  Cr.  L.  50,  note  r, 
citing  I  East  P.  C.  437;  8,  9,  480. 

3.  Ageof  the  Person  Assaulted. —  Chitty 
observes  that  the  precedent  in  Cro.  C. 
C.  (7th  ed.)  167,  and  Stark.  387,  here 
say,  "an  infant  of  the  age  of  ten 
years,"  but  that  this  is  unnecessary. 
2  Chit.  Cr.  L.  50,  note  d.  See  also  Cro. 
C.  C.  (8th  ed.)  61. 


925 


Volume  5. 


6658. 


CRIME  AGAINST  NATURE. 


6658. 


king,  then  and  there  being,  did  make  an  assault^  with  an  intent,  that 
most  horrid,  detestable,  and  sodomitical  crime  (among  Christians 
not  to  be  named),  called  buggery,^  with  the  said  John  Howard, 
against  the  order  of  nature,  then  and  there  feloniously,  wickedly, 
and  devilishly,  to  commit  and  do,  to  the  great  displeasure  of  Almighty 
God,  to  the  great  damage  of  the  ssad  John  Hoivard,  and  against  the 
peace  of  our  said  lord  the  king,  his  crown  and  dignity."* 


3.  Solicitation  to  Commit. 

Form  No.  6658. 

(Precedent  in  2  Chit.  Cr.  L.  50.)* 

{Commencing   as  in  Form  No.  6655,  and  continuing  to*)    the   said 
Charles  Davidson,  being  a  person  of  a  most  wicked,  lewd,  and   aban- 


1.  Actual  Beating  and  Wounding. — 
The  precedents  in  Cro.  C.  C.  (7th  ed.) 
167,  and  Stark.  387,  here  state,  "and 
him  the  said  J.  H.,  then  and  there  did 
beat,  wound,  and  ill  treat,  so  that  his 
life  was  greatly  despaired  of."  But 
these  words  are  not  in  Cro.  C.  C.  (8th 
ed.)  61,  and  it  is  better,  it  would  seem, 
to  omit  them  when  they  do  not  accord 
with  the  facts.     2  Chit.  Cr.  L.  50,  note^. 

2.  Description  of  the  Crime.  —  In  an 
indictment  for  an  assault  with  in- 
tent to  commit  sodomy,  or  buggery,  it 
would  seem  that  as  the  crime  intended 
to  be  committed  is  only  an  aggrava- 
tion of  the  assault,  it  may  be  described 
with  less  particularity  than  in  an  in- 
dictment for  the  crime  itself.  Davis  v. 
State,  3  Har.  &  J.  (Md.)  154. 

3.  Addition  of  Count  for  Common  As- 
sault.—  A  count  for  a  common  assault 
may  be  added.  2  Chit.  Cr.  L.  50,  note 
/,  citing  a  note  to  Cro.  C.  C.  (7th  ed.) 
167. 

Other  Precedents  —  California.  —  In 
People  V.  Williams,  59  Cal.  397,  the 
indictment,  omitting  the  formal  parts, 
charged  as  follows:  "  The  saXdJohn  E. 
Williams  on  the  seventeenth  day  of 
March,  A.  D.  eighteen  hundred  and 
eighty-one.  at  the  said  City  and  County 
of  San  Francisco,  did  wilfully  and  un- 
lawfully and  feloniously  make  an  as- 
sault upon  Harry  George,  with  intent 
to  commit  in  and  upon  the  person  of 
the  said  Harry  George  the  infamous 
crime  against  nature,  contrary  to  the 
form,  force  and  effect  of  the  statute  in 
such  case  made  and  provided,  and 
against  the  peace,"  etc. 

In  this  case  the  court  said:  "  The 
acts  constituting  the  offense  are  stated 
in  ordinary  and  concise  language,  and 
in  such  manner  as  to  enable  a  person 


of    common   understanding    to    know 
what  is  intended." 

Maryland.  —  In  Davis  v.  State,  3 
Har.  &  J.  (Md.)  154,  the  indictment 
charged  that'the  defendant  "not  hav- 
ing the  fear  of  God  before  his  eyes, 
but  being  moved  and  seduced  by  the 
instigation  of  the  devil,  on,  etc.,  with 
force  and  arms,  at,  etc.,  in  and  upon 
one  Walter  Chase,  a  youth  of  the  age 
of  nineteen  years,  in  the  peace  of  God 
and  of  the  state  of  Maryland,  then  and 
there  being,  did  make  an  assault,  and 
him  the  said  Walter  Chase,  then  and 
there  did  beat,  wound,  and  ill  treat, 
with  an  intent  that  most  horrid  and  de 
testable  crime  (among  Christians  not 
to  be  named)  called  sodomy,  with  him 
the  said  Walter  Chase,  and  against  the 
order  of  nature,  then  and  there  feloni- 
ously, wickedly,  and  devilishly,  to 
commit  and  do,  to  the  great  displeas- 
ure of  Almighty  God,  contrary  to  the 
Act  of  Assembly,  in  such  case  made 
and  provided,  and  against  the  peace, 
government  and  dignity  of  the  state." 

This  indictment  contained  a  second 
count  in  all  respects  like  the  first  count, 
which  is  given  in  the  text,  except  that 
it  was  alleged  that  the  defendant's  in- 
tent was  "then  and  there  feloniously, 
etc.,  with  him  the  said  Walter  Chase, 
against  the  order  of  nature  to  have  a 
venereal  affair,  and  with  him  the  said 
Walter  Chase,  that  sodomitical  detesta- 
ble and  abominable  sin  (among  Chris- 
tians not  to  be  named),  called  buggery, 
then  and  there  feloniously,  etc.,  against 
the  order  of  nature  to  perpetrate  and 
commit." 

4.  Solicitations.  —  The  mere  soliciting 
another  to  the  commission  of  sodomy 
has  been  treated  as  an  indictable  of- 
fense.    I  Russell  on  Crimes  (gth  ed.),  p. 


926 


Volume  5. 


6659.  CRIME  AGAINST  NATURE.  6659. 

doned  mind  and  disposition,  and  wholly  lost  to  all  sense  of  decency, 
morality,  and  religion,  and  devising,  and  intending  as  much  as  in  him 
lay,  to  vitiate  and  corrupt  the  morals  of  the  said  Alexander  Bird,  and 
to  stir  up  and  excite  in  his  mind  filthy,  lewd,  and  unchaste  desires 
and  inclinations,  on  the  day  and  year  aforesaid,  at  the  parish  afore- 
said, in  the  county  aforesaid,  did  wickedly  and  unlawfully  solicit  and 
incite,  and  endeavor  to  persuade  the  said  Alexander  Bird  to  permit 
and  suffer  him  the  said  Charles  Davidson,  then  and  there  feloniously 
and  wickedly  to  commit  and  do  that  detestable  and  abominable 
crime  (among  Christians  not  to  be  named),  called  buggery,  with  the 
said  Alexander  Bird,  against  the  order  of  nature,  to  the  great  dis- 
pleasure of  Almighty  God,  to  the  great  damage  of  the  ssLid  Alexander 
Bird,  and  against  the  peace  of  our  said  lord  the  king,  his  crown  and 
dignity. 

4.  Submission  to  Commission  of.^ 

Form  No.  6659. 
Court  of  General  Sessions  of  the  City  and  County  of  New  York. 
The  People  of  the  State  of  New  York 
against 
Alexander  Bird. 

The  grand  jury  of  the  city  and  county  of  New  York,  by  this  indict- 
ment, accuse  Alexander  Bird*  of  the  crime  of  submitting  to  the 
commission  of  the  detestable  and  abominable  crime  against  nature, 
in  and  upon  his  person,  committed  as  follows: 

The  said  Alexander  Bird,  on  the  sixteenth  day  of  August,  i897,  at  the 

939,  «Vi«^  2  Chit.  Cr.  L.  50,  as  contain-  tated  malice,  entice  (or  allure  or 
ing  a  precedent  for  an  indictment  for  instigate  or  aid)  Robert  Smith,  the  said 
such  solicitation.  Chitty  framed  this  Robert  Smith  being  then  and  there  a 
indictment  on  the  principle  of  Rex  v.  person  under  the  age  of  twenty-one 
Higgins,  2  East  5,  2  Chit.  Cr.  L.  50,  years,  to  commit  masturbation,  con- 
note j,'.  trary  to  the  form  of  the  statute  in  such 

Pennsylvania,  it  would  seem,  is  the  case  made  and  provided,  and  against 

only  state  in  which   statutes  in   terms  the  peace,"  etc. 

denounce  the  act  of  soliciting  another  1.  SabnuBsion     to     carnal     knowledge 

to  permit  and  suffer  the  act  of  sodomy,  against  the  order  of  nature  is  denounced 

or  buggery,  to  be  committed  with  him,  in  terms  in  the  following  states: 

as  distinguished  from  an  assault  with  New  York.  —  Pen.  Code,  §  303. 

intent  to  commit  such  acts.     Pepp.  &  L.  North  Dakota.  —  Rev.    Codes   (1895), 

Dig.  (1894),  p.  1328,  i?  603.  §  7186. 

Enticement,  Allurement,  etc.,  to  Commit  Pennsylvania,  —  Pepp.     &     L.     Dig. 

Masturbation.  —  Burns'  Anno.  Stat.  Ind.  (1894),   p.    1327,    §   602,    in    terms    de- 

(1S94),  §   2092,  provides  that  whoever  nounces   only   submission    to   the    act 

entices,  allures,  instigates,  or  aids,  any  when   committed    by   penetrating   the 

person    under   the   age  of   twenty-one  mouth,  but  the  statute  impliedly  covers 

years  to  commit  masturbation,  or  self-  submission  to  other  acts, 

pollution,  is  guilty  of  sodomy.  The  patient  or  pathic  may  be  indicted 

An    indictment    framed    under    this  as   well   as   the    perpetrator.     Reg.    v. 

statute,    omitting    the     formal    parts,  Allen,  I3jur.  108,  2  Car.  &  K.  869,  61 

should  charge  as  follows:  "that  on  the  E.  C.  L.  869,  i  Den.  C.   C.   364,  Temp. 

i8th  day  oi January,  i8gy,  and   in  the  &  M.  55.     See  also   Reg.  v.  Jellyman, 

county  of  Rush  and   State  of  Indiana,  8  C.  &  P.  604,  34  E-  C.   L    547,  holding 

PVilliam  A.Jones  did  unlawfully,  feloni-  that  the  pathic  is  an  accomplice, 
ously,  purposely,   and    with    premedi- 

927  Volume  5. 


6660. 


CRIME  AGAINST  NATURE. 


6660. 


city  of  New  York,  in  this  county,  did  unlawfully,  and  feloniously, 
submit  and  consent  that  Charles  Davidson  should  carnally  know  him, 
the  said  Alexander  Bird,  contrary  to  nature,  to  wit,  in  the  anus  of 
him,  the  said  Alexander  Bird,  and  the  said  Charles  Davidson,  with  the 
consent  and  permission  aforesaid,  unlawfully  and  feloniously  given 
him  by  the  said  Alexander  Bird,  did  unlawfully  and  feloniously  know 
him  the  said  Alexander  Bird,  against  the  order  of  nature,  to  wit,  in  the 
anus,  which  submission  to  the  aforesaid  carnal  knowledge,  contrary 
to  nature,  was  then  and  there  done  by  the  said  Alexander  Bird, 
against  the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  of  the  people  of  the  state  of  New  York  and  their 
dignity. 

Daniel  Webster,  District  Attorney. 

II.  BESTIALITY. 

1.  With  Beast.i 


Form  No.  6  6  6  o. 
(Precedent  in  2  Chit.  Cr.  L.  49.)' 

(Commencement  as  in  Form  No.  6655,  and  continuing  to  *)  in  a  certain 
cowhouse  there,  with  [an  animal,  to  wit]^  a  certain  black  cow,*  then  and 


1.  Animal  or  Beast.  —  In  the  following 
states  the  statute  uses  the  word  "ani- 
mal: " 

Arizona.  —  Pen.  Code  (1887),  §  480. 

California. —  Pen.  Code  (1S97),  j5  286. 

Montana. — Pen.  Code  (1895),  tit.  9, 
p.  4,  5^  496. 

New  Mexico.  —  Comp.  Laws  (1897),  § 
1352. 

New  York.  —  Pen.  Code,  §  303. 

North  Dakota.  — Rev.  Codes  (1895),  ^5 
7186. 

Utah.  — 2  Comp.  Laws(r883),  §4509. 

Virginia. — Code  (1887),  §  3793,  uses 
the  term  "  brute  animal." 

West  Virginia.  — Code  (1891),  c.  149, 
§  12,  uses  the  term  "  brute  animal." 

In  the  following  states  the  statute 
uses  the  word  "  beast:  " 

Colorado.  —Mills'  Anno.  Stat.  (1891), 
§  1213. 

Georgia.  —  3  Code  (1895),  §  384. 

Indiana.  —  Burns.  Anno.  Stat.  (1894), 
§  2092. 

Louisiana.  — Voorhies'  Rev.  Laws 
(18S4),  p.  132,  §  788. 

Massachusetts. — Pub.  Stat.  (1S82),  c. 
207,  §  18. 

Michigan.  —  How,  Anno.  Stat.  (1882), 

§  9292- 

Minnesota. — Stat.  (1894),  §  6554. 

Missouri. — Rev.   Stat.  {1889),  i^  3796. 

Nebraska. —  Comp,  Stat.  (1897),  § 
6920. 


Stat 


(1885),      § 
Stat.  (1895),  p. 


Nevada.  —  Gen. 
4608. 

New  Jersey.  —  i  Gen. 
1057,  §  38. 

Oklahoma.  —  Stat.  (1S93),  §  2186. 

Oregon.  —  i  Hills'  Anno.  Laws  (1892), 
§  1874. 

Pennsylvania.  —  Pepp.  and  L.  Dig. 
(1894),  p.  1327,  §  602. 

Rhode  Island.  —  Gen.  Laws  (1S96),  c. 
281,  §  12. 

South  Carolina.  —  Crim.   Stat,  (1893), 

§  254- 

Tennessee.  —  Code  (1896),  §  6764. 

Wisconsin. — Sanb.  and  B.  Anno. 
Stat.  (1889),  §  4591, 

Wyoming.  —Rev,  Stat.  (1887),  §  884. 

2.  Chitty  refers  to  the  forms  in  Cro. 
C.  A.  17,  and  in  Cro.  C.  C.  (8th  ed.)  86, 
2  Chit.  Cr.  L.  49,  note  a. 

3.  The  words  in  [  ]  are  inserted;  they 
are  not  found  in  the  precedent. 

4.  Description  of  Animal  as  Bitch. —  In 
Reg.  V.  Allen,  i  C.  &  K.  495,  47  E.  C. 
L.  495,  it  was  charged  that  the  defend- 
ant "  in  and  upon  a  certain  animal 
called  a  bitch,  unlawfully,  and  wick- 
edly, did  lay  his  hands,  "  with  in- 
tent feloniously  to  commit  bestiality 
with  the  said  animal,  and  then  and 
there  unlawfully,  and  wickedly,  did 
attempt  feloniously,  etc.,  to  know  the 
said  animal,  and  it  was  held  that  the 
description  of  the  animal  was  sufficient, 


92S 


Volume  5. 


6661. 


CRIME  AGAINST  NATURE. 


6661. 


there  bein 
of  nature, 
and  there 
of  nature, 
wickedly, 
said  cow,i 
Form  No. 


g,  feloniously,  wickedly,  diabolically,  and  against  the  order 
had  a  certain  venereal  and  carnal  intercourse,  and  then 
feloniously,  wickedly,  diabolically,  and  against  the  order 
carnally  knew  the  said  cow;  and  then  and  there  feloniously, 
and  diabolically,  and  against  the  order  of  nature,  with  the 
did  commit  and  perpetrate  that  detestable  [concluding  as  in 
6655). 

2.  With  Bird.2 


Form  No.  6  6  6  i . 

(^Commencing  as  in  Form  No.  6659,  and  continuing  to  *)of  the  detest- 
able and  abominable  crime  against  nature,  committed  as  follows: 

The  said  Alexander  Bird,  on  \\\t  first  day  of  January,  iS96,  at  the 
city  of  New  York,  in  said  county,  then  and  there  did,  with  force  and 
arms,  unlawfully,  and  feloniously,  and  against  the  order  of  nature, 
carnally  know  a  bird,  to  wit,  a  brown  turkey  hen,  in  the  anus  of  the 
said  brown  turkey  hen,  against  the  ioxva.  {concluding  as  in  Form  No. 
6659). 


although  the  females  of  foxes  and  some 
other  animals  are  called  bitches  as  well 
as  the  female  of  the  dog. 

1.  The  words  "with  the  said  cow," 
which  appear  in  the  form  given  by 
Chitty,  are  omitted  in  Cro.  C.  A.  17,  2 
Chit.  Cr.  L.  49,  note  d. 

Another  Precedent  —  Texas. —  In  Cross 
V.  State,  17  Tex.  App.  477,  the  indict- 
ment, omitting  the  formal  parts, 
charged  that  the  defendant  "did  then 
and  there  unlawfully  and  wilfully  com- 
mit with  a  mare,  same  being  a  beast, 
the  abominable  and  detestable  crime 
against  nature  by  then  and  there  having 
carnal  connection  with  said  beast,  and 
did  then  and  there  commit  the  crime  of 
sodomy  with  said  beast,"  etc. 

Statutory  Form  — Alabama. —  In  Grim. 
Code  (1886),  p.  276,  will  be  found  a 
statutory   indictment    for   this  offense. 

By  a  Woman.  —  See  list  of  statutes 
cited  supra,  note  I,  p.  928.  The  in- 
dictment, omitting  the  formal  parts, 
may  charge  that  "  the  said  Fannie 
Smith,  on  Xhc  first  d&y  oi January,  l9>g6, 
at  the  town  of  Huntington,  in  this 
county,  did  then  and  there  feloniously, 


unlawfully,  and  voluntarily  submit  to 
carnal  knowledge  of  her  the  said  Fannie 
Smith,  being  had  in  the  genital  organs 
of  her  the  said  Fannie  Smith,  by  a  male 
black  setter  dog,  named  Bowzer,  against 
the  peace,"  etc. 

2.  Carnal  Knowledge  of  Bird.  —  In  the 
following  states,  the  statutes  in  terms 
denounce  carnal  knowledge  pf  any  bird 
by  any  person: 

New  York.  — Pen.  Code,  §  303. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  7186. 

Vnder  Ordinary  Statntea.  —  Russell 
says:  "An  unnatural  connection  with 
an  animal  of  the  fowl  kind  is  not  sodo- 
my, a  fowl  not  coming  under  the  name 
'  beast ';  and  it  was  agreed  clearly  not 
to  be  sodomy  when  the  fowl  was  so 
small  that  its  private  parts  would  not 
admit  those  of  a  man,  and  were  torn 
away  in  the  attempt."  i  Russell  on 
Crimes  (9th  ed.),  p.  938,  citing  Rex  v. 
Mulreaty,  Hil.  T.  1812,  Ms.,  Bayley,  J. 

In  Reg.  V.  Brown,  24  Q.  B.  Div.  357, 
however,  it  was  held  that  it  is  a  crime 
to  attempt  to  commit  an  unnatural  of- 
fense with  a  domestic  fowl. 


5  E.  of  F.  P.  — 59- 


929 


Volume  5. 


CRIMINAL  COMPLAINTS.^ 

I.  IN  PRELIMINARY  PROCEEDINGS,  930. 

II.  FOR  Offenses  Triable  in  Justices'  and  Other  inferior 
Courts,  964. 

1.  In  Justices'  Courts,  964. 

2.  In  Other  Inferior  Courts,  973. 

a.  Chairman  of  Board  of  Trustees,  973. 

b.  City  Court,  974. 

c.  County  Court,  975. 

d.  Mayor  s  Court,  977. 

e.  Municipal  Court,  979. 

f.  Police  Court,  979. 

g.  Probate  Courts  984. 

CROSS-REFERENCES. 

For  Forms  of  Criminal  Complaints  for  Particular  Offenses,  consult  the 
Specific  Criminal  Titles  throughout  this  work. 

For  the  Formal  Parts  of  Indictments  in  the  various  Jurisdictions,  consult 
the  title  INDICTMENTS. 

For  the  Formal  Parts  of  Informations  in  the  various  Jurisdictions,  con- 
sult the  title  INFORMATIONS. 

See  also  the  GENERAL  INDEX  to  this  work. 

I.  IN  PRELIMINARY  PROCEEDINGS.^ 

Form  No.  6662.^ 

The  State  of  Alabama, ) 
Dale  County.  \ 

Personally   appeared  before  me,  Abraham  Kent,  a  justice  of   the 

1.  Criminal  complaints  are  variously  inferior  court  acts  upon  the  complaint, 
designated  as  "complaints,"  "  affida-  affidavit,  or  information,  and  proceeds 
vits,"  or  "informations"  in  the  stat-  to  try  and  punish  the  offender.  For 
utes  of  the  various  states.  See  infra,  such  latter  proceedings  see  infra,  this 
forms  and  statutory  citations  appended  title.  Offenses  Triable  by  fustices  of  the 
to  the  forms  in  this  article.  Peace  and  Other  Inferior  Courts. 

2.  Preliminary  proceedings  refer  to  the  For  forms  relating  to  warrants  of  ar- 
proceedings  before  justices  of  the  rest  issued  upon  criminal  complaints 
peace,  conservators  of  the  peace,  or  consult  the  title  Warrants  of  Arrest. 
like  magistrates,  for  the  examination  of  For  forms  relating  to  the  commit- 
persons  charged  with  crimes  and  the  ment  and  discharge  of  persons  arrested 
commitment  of  or  holding  to  bail  such  under  process  issued  upon  criminal 
persons  to  await  the  action  of  the  grand  complaints  consult  the  title  Commit- 
jury  or  to  be  otherwise  dealt  with  ac-  ment  and  Discharge,  vol.  4,  p.  926. 
cording  to  law  in  courts  of  competent  See  also  the  title  Bail  and  Recogni- 
jurisdiction.    These  proceedings  should  zance.  vol.  2,  p.  i. 

be     distinguished    from     proceedings        8.  Alabama.  —  Crim.  Code  (1886),  ^§ 
where  the  justice  of  the  peace  or  other    4255,  4256.     These  sections  apply  only 

930  Volume  5. 


6663.  CRIMINAL  COMPLAINTS.  6663. 

peace^  in  and  for  said  county,  one  Richard  Roe.,  who  being  duly  sworn, 
on  oath,  says  that  before  the  making  of  this  affidavit,  to  wit,  on  the 
second  didi^  oi  January.,  iS98,  in  said  county,  the  offense  of  arson  in  the 
first  degree  was  in  the  opinion  of  the  complainant  committed,  and 
that  one  John  Doe  is  guilty  of  the  said  commission  of  the  said  offense, 
against  the  peace  and  dignity  of  the  state  of  Alabama.'^ 

Richard  Roe.  "^ 
Subscribed  and  sworn  to  before  me  this  fifth  day  oi  March.,  i898. 

Abraham  Kent.,  Justice  of  the  Peace. 

Form  No.  6663.^ 

Territory  of  Arizona.,  plaintiff, 
against 
John  Doe.,  defendant. 
Territory  of  Arizona,  \  ^ 

County  of  Gila.  \ 

Personally  appeared  before  me,*  Abraham  Kent.,  a  justice  of  the 
peace,  of  precinct,  county  of   Gila.,  territory  of  Arizona.,  this 

fifth  day  of  March,  iS98,  Richard  Roe,  of  Globe,  in  the  said  county  of 
Gila,  who  being  duly  sworn  complains  and  says  [that  on  the  second 
day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-eight,  at  and  in  the  county  of  Gila  and  territory  of  Arizona, 
one  John  Doe,  late  of  Globe  in  said  county  of  Gila  and  territory  of 
Arizona  aforesaid,  did  commit  the  crime  of  burglary  in  the  first  degree, 
and  that  said  John  Doe,  at  the  time  and  at  the  place  last  aforesaid 
committed  said  crime  in  the  manner  following,  to  wit:  the  said  John 
Doe,  at  the  time  and  place  last  aforesaid  in  the  night-time  of  said 
day,  did  then  and  there  feloniously,  forcibly  and  burglariously  break 
and  enter  the  dwelling-house  and  building  of  one  Samuel  Short,  there 

to  preliminary  proceedings  before  com-  manifest     from    the     complaint     that 

mitting  magistrates,  and  not  to  crimi-  "  Hattie  Patterson,"  who  verified  and 

nal  prosecutions  before  a  justice  of  the  subscribed    the    same,    was    identical 

peace  or  in  a  county  court.      Sale  v.  with  Hattie  Patison,  who  appeared  be- 

State,  68  Ala.  530.  fore  the  officer  and  made  it,  and  that 

For  formal  parts  of  affidavits,  gener-  the  difference   in   the   spelling  of  the 

ally,  consult  the  title  Affidavits,  vol.  name  resulted  from  mere  clerical  mis- 

1,  p.  i,\%etseq.  take,  the  error  is  immaterial.     Reeves 

Precedent  of  a  complaint  in  bastardy  v.  State,  (Ala.  1898)  23  So.  Rep.  28. 

proceedings  may  be  found  in  Form  No.  4.  Arizona.  —  Pen.  Code  (18S7),  §  1258. 

3934.  Nevada.  — G^Xi.  Stat.   (1885).  §   3985 

Tedinlcal  accuracy  is  not  required  in  et  seq. 

preliminary    proceedings.       Brown   v.  New  Mexico.  —  Comp.    Laws    (1884), 

State,  63  Ala.  97;  Rhodes  v.  King,  52  ^  2448. 

Ala.  272.  Consult  these  cases  for  in-  For  the  formal  parti  of  affidavits,  gen- 
stances  of  what  is  sufficient.  erally,    consult   the    title    Affidavits, 

1.  Magistrates  before  whom  prelimi-  vol.  i.  p.  548. 

nary    proceedings     may    be    had    are  6.  Magistrates   to   whom    complaints 

enumerated  in  the  statutes.    Ala.  Crim.  may  be   made  are  enumerated   in    the 

Code  (1886),  g  4680.  statute. 

2.  Need  not  conclude  "against  the  Arizona.  —  Pen.  Code  (1887),  ^  1260. 
peaceanddignity  of  the  state."  Thomas  Nevada.  —  Gen.  Stat.  (1885),  ^  3987- 
z/.  State,  107  Ala.  61.  New  Mexico.  — Qom^.    Laws   (1884), 

3.  Variance  in  Names.  —  Where  it  was  §  2448. 

931  Volume  5. 


6664.  CRIMINAL  COMPLAINTS.  6664. 

situate,  with  intent  to  commit  grand  larceny,  and  did  then  and  there 
feloniously  and  burglariously  steal,  take  and  carry  away  fifty  gallons 
of  sherry  wine.,  the  personal  property  of  the  said  Samuel  Shorty  and 
of  the  value  of  three  hundred  dollars^  contrary  to  the  form,  force 
and  effect  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  people  of  the  territory  of  Arizona. 

Wherefore  complainant,  the  said  Richard  Roe.,  prays  that  a  warrant 
may  be  issued  for  the  arrest  and  apprehension  of  the  said  John  Doe, 
and  that  he  may  be  dealt  with  according  to  the  law. 

Richard  Roe.^ 

Subscribed  and  sworn  to  before  mt  this,  fifth  day  oi  March,  i2>98. 

Abraham  Kent,  Justice  of  the  Peace. 

(^Deposition  of  informant  or  prosecutor  annexed.  )^ 


Form  No.  6664.* 

State  oi  Arkansas,      ) 

County  of  Pulaski,     >■  ss.     Affidavit  for  Warrant  of  Arrest. 

Big  y?<?r^  Township,  ) 

I,  Richard  Roe,  do  solemnly  swear  \)cidXjohn  Doe,  in  said  county  of 
Pulaski,  did  on  the  second  ddiy  oi  January,  i898,  commit  the  crime  of 
rape,  and  pray  a  warrant  irom  Abraham  Kent,  justice  of  the  peace  for 
said  county,  to  apprehend  and  bring  said  John  Z>^^  before  said  justice, 
to  be  dealt  with  according  to  law. 

Richard  Roe. 

Sworn  to  and  subscribed  before  me  this, fifth  day  oi  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace. 

1.  Charging  Part  of  Complaint.  —  The  witness,  tending  to  establish  the  com- 
matter  in  [  ]  is  what  is  called  the  charg-  mission  of  the  offense  and  the  guilt  of 
ing  part,   and   must   of   necessity  vary     the  defendant. 

according    to    the     particular    offense        Arizona. — Pen.  Code  (1887),  §  1270. 
sought  to  be  charged.     While  it   is  not         California.  —  Pen.  Code  (1897),  S§  811, 

alvvays  necessary  to  use  the  same  tech-  812. 

nicality    and    accuracy   in   a  criminal         Idaho.  —  Rev.  Stat.  (1887),  §  7516. 
complaint  as  in  an  indictment  or  infor-         Nevada.  — Gen.  Stat.  (1885),  §  3988. 
mation,  it  is,   however,  a  safe  rule  to         Oregon.  —  Hill's  Anno.,  Laws  (1892), 

do  so.     For  the  charging  part  of  an  in-  §  1549. 

dictment  or  information   for  any  par-         Information  and  belief  may  support 

ticular  offense  consult  the  titles  treating  the  deposition  where  the  acts  and  cir- 

of  that  offense,  such   as  Abandonment  cumstances  on  which  the    complaint  is 

OF  Children;  Abduction  of  Women;  founded  are  given.   People  z/.  Mcintosh, 

Abortion;  Affray;  Arson  and  Burn-  (Supreme  Ct.)  5  N.  Y.  Crim.  Rep.  38. 
ing;    Assault;     Badges,     etc.;     Bar-        4.  Arkansas.   —   Sand.    &    H.    Dig. 

ratry;  Bigamy,  etc.  (1894),  §  1963,   makes   it  the  duty  of  a 

2.  Signature  by  mark  on  the  part  of  magistrate  to  issue  a  warrant  upon  in- 
the  complainant  without  attestation  by  formation  given  him  "on  oath,"charg- 
a  subscribing  witness  is  sufficient  ing  some  person  with  the  commission 
where  the  certificate  of  the  committing  of  a  public  offense.  When  the  affidavit 
magistrate  is  to  the  effect  that  it  was  is  made  and  the  accused  arrested,  the 
subscribed  and  sworn  to  by  the  com-  affidavit  is  functus  officio.  It  is  not  de- 
plainant.  State  v.  Depoister,  21  Nev.  murrable  Martin  v.  State,  46  Ark.  38. 
107.  For  the  formal  parts  of  affidavits,  gen- 

3.  This  deposition  must  set  forth  the  erally,  consult  the  title  Affidavits,  vol. 
facts  stated  by  the  prosecutor  and   his     i,  p.  548. 

932  Volume  5. 


6665. 


CRIMINAL  COMPLAINTS. 


6667. 


Form  No.  6665.' 

The  People  of  the  State  of  California  \   ,,         ,  •       /•       „       ,         .      , 
against  '  \  Complaint  for  Burglary  in  the 

John  Doe.  \  ^''''^  ^'^r^'' 

State  of  California^  \ 

Marin  County.  j 

Before  me,  Abraham  Ketit,  a  justice  ot  the  peace  ^  within  and  for  the 

county  of  Marin  in  the   state   oi  Calif  or  nia,  th.\s  fifth  day  of  March., 

iS98,  personally  appeared  one  Richard  Roe,  who  being  first  duly 

sworn  on  oath  says  {continuing  and  concluding  as  in  Form  No.  6663). 


ss. 


Form  No.  6666. 

State  of  Colorado,     \ 
County  of  Dolores.  ) 

The  complaint  and  information  oi  Richard  Roe,  made  before  Abra- 
ham Kent,  Esq.,  one  of  the  justices  of  the  peace*  in  and  for  the  said 
county,  on  fifth  day  of  March,  a.  d.  \W8,  being  duly  sworn  on  oath 
says  that  {continuing  and  concluding  as  in  Form  No.  6663). 


Form  No.  6667. » 
State  of  Connecticut,  }  r^  e  lt    jj-    j 

Hartford  County.       \  ^^^^  oi  Hartford 

To   Abraham   Kent,    Esq.,  a   justice   of   the  peace*   for  Hartford 


1.  California.  —  Pen.  Code  (1897), 
§806. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits,  vol. 
I,  P-  548. 

For  the  sufficiency  of  the  complaint  un- 
der criminal  proceedings  see  People  v. 
Smith,  I  Cal.  9;  People  v.  Velarde,  59 
Cal.  457;  Ex  p.  Dimmig,  74  Cal.  164; 
People  V  Staples,  91  Cal.  23.  A  com- 
plaint positive  and  direct  in  its  alle- 
gation of  every  fact  necessary  to 
support  the  charge  laid  is  a  sufficient 
deposition  within  the  meaning  of  Cal. 
Pen.  Code,  §  811  et  seq.  People  v. 
Staples,  91  Cal.  23,  distinguishing  Ex 
p.  Dimmig,  74  Cal.  164, 

A  mere  affidavit  in  the  form  of  an  in- 
formation, which  only  contains  an  ex- 
pression of  opinion  of  the  affiant  that  a 
certain  person  is  guilty  of  a  crime,  and 
which  contains  no  evidence  and  is  fol- 
lowed by  no  deposition  stating  any  fact 
tending  to  show  guilt,  is  insufficient 
as  a  criminal  complaint  upon  which  to 
issue  a  warrant  of  arrest.  Exp.  Dim 
mig,  74  Cal.  164,  where  the  complaint  in 
question  is  set  out  in  full. 

2.  Magistrates  to  whom  the  complaint 
may  be  made  are  enumerated  in  the 
Statute.     Cal.  Pen.  Code  (1897).  §808. 

The  complaint  may  be  sworn  to  be- 


fore a  justice  of  the  peace.  People  v. 
Le  Roy,  65  Cal.  613,  although  filed  in  a 
police  court. 

District  jndges,  prior  to  the  abolition 
of  the  district  courts,  were  held  to  be 
magistrates  vested  with  authority  to 
hold  accused  persons  to  answer  crimi- 
nal charges.  Ex  p.  Granice,  51  Cal. 
375;  Rx p.  Walsh,  39  Cal.  705. 

Need  not  conclude  "  against  the  form  of 
the  statute."  Exp.  Mansfield,  106  Cal. 
400. 

3.  Colorado. — Mills'  Anno.  Stat.  (1891), 
§§  1482-1484. 

For  formal  parts  of  affidavits,  generally, 
consult  the  title  Affidavits,  vol.  i,  p. 
548. 

Amendment  of  complaint  in  preliminary 
proceedings  may  be  made.  People  v. 
Mellor,  2  Colo.  70S. 

4.  Magistratesto  whom  complaint  and 
information  made  be  made  are  enume- 
rated in  the  statute.  Mills'  Anno.  Stat. 
Colo.  (1891),  §  1482. 

6.  Connecticut.  —Gen.  Stat.  (1888),  §§ 
693,  694;  Laws  (1895),  p.  466. 

For  examples  of  the  charging  part  in  a 
Connecticut  complaint  see  Forms  Nos. 
241 1.  3935.  3936.  3951.  3963.  3967- 

6.  To  Whom  Made.  —  To  the  court 
having  cognizance  of  the  offense  or  to 
some  justice  of  the  peace  in  the  town 


983 


Volume  5. 


6668-  CRIMINAL  COMPLAINTS.  6669. 

county,  in  said  town.  Comes  Richard  Roe,  a  grand  juror^  in  and  for 
said  town  of  Hartford,  and  on  his  oath  of  office  complaint  and 
information  makes,  that  at  said  town  of  Hartford,  on  the  tenth  day 
o{  March,  iS96,  John  Doe,  of  the  town  oi  Hartford  in  said  county 
(^Here  state  the  facts  constituting  the  off ense^,"^  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided  and  against  the  peace. 
Wherefore,  the  grand  juror  aforesaid  prays  process,  and  that  the  said 
John  Doe  may  be  arrested  and  examined  touching  the  allegations 
contained  in  this  complaint  and  be  thereon  dealt  with  according  to 
law.  3 

Dated  at  Hartford  this  tenth  day  of  March,  a.  d.  i895. 

Richard  Roe,  Grand  Juror. 

Form  No.  6668.* 

State  of  Dela7vare,  \ 
Kent  County.  j' 

Be  it  remembered  that  on  this^M  day  oi  March,  a.  d.  \%d8,  per- 
sonally came  before  me,  Abraham  Kent,  a  justice  of  the  peace  within 
and  for  the  county  ol  Kent,  state  oi  Delaware,  Richard  Roe,  oi  Dover 
in  said  county,  who,  being  by  me  duly  sworn  according  to  law,  deposes 
and  says  {continuing  and  concluding  as  in  Form  No.  6663'). 

Form  No.  6  6  6  9  .^ 

District  of  Columbia,  to  wit: 

On  this  ffth  day  oi  March,  a.  d.  one  thousand  eight  hundred  and 

where  the  offense  was  committed,  mitted,  the  justice  shall  carefully  ex- 
Conn.  Gen.  Stat.  (1888),  §  88.  amine   the   complainant,    on    oath    or 

1.  By  Whom  Made. —  The  grand  jurors  affirmation,  and  if  he  considers  there  is 
of  the  several  towns  shall  make  due  probable  ground  for  the  accusation  he 
complaint    of   all    crimes   and    misde-  shall  issue  his  warrant. 

meanors  that  shall  come  to  their  knowl-  Where  an  offense  is  of  an  aggravated 

edge   except   in    towns    where  by  law  nature,  or  not   within   the  limit  of  the 

those  duties  are  involved  upon  other  justice's  jurisdiction,  the  accused  shall 

officers  exclusively.      Conn.  Gen.  Stat,  be   committed    or   bound   over   to   the 

(1S88),  §  88.  proper  court.     Del.  Rev.  Stat.  (1893),  p. 

Grand  jurors  may  complain  of  viola-  732,  §§  8,  12. 

tion  of  town  and  borough  by-laws  and  For  formal  parts  of  affidavits,  gener- 

regulations  to  a  justice  of  the  peace  of  ally,  consult  the  title  Affidavits,  vol. 

the  town.  Conn.  Gen.  Stat.  (1888),  i^  89.  i,  p.  548. 

2.  Charging  part  of  complaint,  see  5.  District  of  Columbia.  —  Comp. 
supra,  note  i,  p.  932.  Stat.  (1894),  p.  310,  §  9,  providing  that 

3.  Need  not  conclude  "  against  the  any  justice  of  the  peace  may,  on  com- 
peace  and  dignity  of  the  state."  State  plaint  under  oath,  issue  a  warrant  re- 
V.  Miller,  24  Conn.  519;  State  v.  turnable  to  the  police  court  against 
Holmes,  28  Conn.  231.  persons  accused  of  crimes  committed 

"  Contrary  to  the  form  of  the  statute "  in   the   district.      Section  8,  however, 

is  not  fatal  to  the  validity  of  the  grand  provides  that  justices  of  the  peace  shall 

juror's     complaint,     even    though    it  not     exercise     any    jurisdiction     over 

charges  a   common-law  offense.    State  crimes  and  offenses,  either  for  exam- 

V.  Holmes,  28  Conn.  231.  ination  to  commit  or  hold  to  bail  or  for 

4.  Delaware.  —  Rev.    Stat.   (1893),    p.  final  judgment. 

734,  ?^  16,  providing  that  when  com-  For  formal  parts  of  affidavits,  gener- 
plaint  is  made  in  due  form  to  a  justice,  ally,  consult  the  title  Affidavits,  vol. 
alleging  that  an  offense  has  been  com-     t,  p.  548. 

934  Volume  5. 


6670.  CRIMINAL  COMPLAINTS.  6671. 

ninety-eight,  personally  came  before  me,  Abraham  Kent,  a  justice  of 
peace  in  and  for  the  District  of  Columbia,  one  Richard  Roe,  who,  being 
duly  sworn  according  toMaw,  doth  declare  and  say  that,  on  the  second 
day  oi  January,  a.  d.  \W8,  in  the  district  d^iortsdiid,  John  Doe  did 
{Here  state  facts  constituting  the  offense),^  against  the  form  of  the  stat- 
ute in  such  case  made  and  provided,  and  against  the  peace  and  gov- 
ernment of  the  United  States. 

Richard  Roe. 
Sworn  to  and  subscribed  the  fifth  day  ol  March,  iS98. 

Abraham  Kent,  J.  P.     (seal) 

Form  No.  6670.* 
(Fla.  Rev.  Stat.  (1892),  p.  895.) 

State  of  Florida, 
Marion  County, 
First  District. 

Before  the  subscriber,  a  justice  of  the  peace'  in  and  for  said  county, 
personally  came  ^/V^ar^^^<?,  who  being  duly  sworn  says,  that  one 
John  Doe,  on  the  second  day  of  March,  a.  d.  iS98,  in  the  county  and 
district  aforesaid  {Here  designate  the  nature  of  the  offense,  and  describe 
the  circumstances  of  its  commission  as  particularly  as  can  be  done.^^ 

Richard  Roe. 

Sworn  to  and  subscribed  before  me  \.\\\?,  fifth  day  of  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6671.' 

(3  Ga.  Code  (1895),  p.  884.) 

Georgia,  Bibb  County.^ 

Personally  came  Richard  Roe,  who  on  oath  saith  that  to  the  best  of 
his  knowledge  and  be\ie( ''  John  Doe  did,  on  the  second  day  of  March, 
in  the  year  i898,  in  the  county  aforesaid,  commit  the  offense  of  per- 
jury;^ and   this  deponent   makes   this  affidavit  that  a  warrant  may 

1.  Charging  part  of  complaint,  see  6.  County  in  which  the  offense  was 
supra,  note  i,  p.  932.  committed  must  be  staled.    3  Ga.  Code 

2.  Florida.  —  Rev.  Stat  (1892).  ^  2870.     (1895).  J;  883. 

For  forms  of  complaint  in  this  state  see  7.  To  the  Best  of  Affiant's  Knowledge 

Forms  Xos.  2412,  3937.  andBelief.  —  It  is  only  necessary    that 

For  formal  parts  of  affidavits,  generally,  the  offense  be  charged  to  the  best  of 

consult  the   title  Affidavits,  vol.  i,  p.  affiant's  knowledge  and  belief.  Thomas 

548.  V.  State,  91  Ga.  204. 

3.  Magistrates     before    whom     such  8.  The  offense    committed    must    be 
complaints  may  be  brought  are  enu-  stated.     3  Ga.  Code  (1895),  §  883. 
merated  in  the  statute.     Fla.  Rev.  Stat.  The  affidavit  need  not  be  more  par- 
(1892),  §  2869.  ticular  or  specific  than  is  necessary  to 

4.  Consult  Fla.  Rev.  Stat.  (1892),  §  uphold  a  warrant.  Dickson  v.  State, 
2871.  62  Ga.  583. 

Charging  part  of  complaint,  see  supra.  In  Ray  v.  State,  15  Ga.  231,  the  affi- 

note  I,  p.  932.  davit  is  set  out  as  follows: 

6.  Georgia.  —  3  Code  (1895),  §  883  <r/  "  Georgia,  Nous/on  county: 

se^.  Before  me,   fVm.  S.  Moore,  a  Justice 

For  formal  parts  of  affidavits,  gener-  of    the    Peace,    personally    came  fess<r 

ally,  consult  the  title  Affidavits,  vol.  Cooper,  of  said  county,  who  being  duly 

I,  p.  548.  sworn,  saith  on  oath,  that  on  ihe  fifth 

935  Volume  5. 


6672. 


CRIMINAL  COMPLAINTS. 


6673. 


issue  for  his  arrest.^ 

Richard  Roe. 
Sworn  to  and  subscribed  before  me  X.h\s,fi/tk  day  of  March,  iS98. 

Abraham  Kent,  J.  P.^ 

Form  No.  6672.* 

The  State  o^^aho^  plaintiff,*  \  Complaint  for  Burglary  in  the  First 

John  Doe,  defendant.*        )  ^^  '' 

Personally  appeared  before  me,  Abraham  Kent,  a  justice  of  the 
peace*  within  and  for  the  Blank  precinct,  county  of  Shoshone,  state  of 
Idaho,  this  fifth  day  oi  March,  jS98,  Richard  Roe,  oi  Murray,  in  the 
county  of  Shoshone  aforesaid,  who  being  duly  sworn  complains  and 
says  {continuing  and  concluding  as  in  Form  No.  666S). 


State  of  Illinois,  \ 
Green  County.     [ 


ss. 


Form  No.  6673.' 

The    complaint    and    information  of  Richard 
Roe  of  Carrollton  in  said  county,  made  before 


day  of  February,  eighteen  hundred  and 
fifty-three,  at  Perry  in  said  county  of 
Houston,  George  IV.  Bay,  fr.,  of  said 
county,  did  make  a  violent  assault 
upon  the  person  of  William  F.  Taylor, 
of  said  county,  with  a  wooden  board 
or  piece  of  plank,  which  he,  the  said 
George  W.,  in  his  hands  then  and  there, 
had  and  held,  feloniously,  wilfully  and 
maliciously,  did  strike  and  inflict  divers 
heavy  blows,  upon  the  arm  and  head 
of  him,  the  said  William  F.  Taylor, 
giving  to  the  said  William  F.  then  and 
there  with  the  board  or  piece  of  plank 
aforesaid,  upon  his  head  aforesaid,  one 
or  more  mortal  wounds,  of  which 
said  striking  and  blows  aforesaid,  the 
said  Wm.  F.  Taylor  did  soon  after  die. 
his 
fesse  X  Cooper. 
mark 

Sworn  to  and  subscribed  before  me, 
Feb.  8th,  iSj-j. 

Wm.  S.  Moore,  J.  P." 

A  mere  verbal  inaccuracy  will  not  vi- 
tiate an  affidavit  where  the  meaning  is 
clear.     Dickson  v.  State,  62  Ga.  583. 

1.  Need  not  conclnde  "contrary  to 
the  form  of  the  statute."  Downing  v. 
State,  66  Ga.  160. 

2.  Attestation.  —  An  affidavit  neither 
attested  by  an  officer  authorized  to  ad- 
minister oaths  nor  sworn  to  in  open 
court  is  void.  Scroggins  v.  State,  55 
Ga.  380. 

Magistrates  who  may  issue  warrants 
of  arrest  are  enumerated  in  the  statute. 
3  Ga.  Code  (1895),  §  882. 


A  judge  of  the   county  court  has  the 

power  of  a  justice  of  the  peace  to  issue 
a  warrant,  upon  affidavit  made  before 
him,  and  of  making  preliminary  ex- 
aminations thereunder,  and  commit- 
ting or  binding  over  the  accused  to 
the  proper  court,  the  affidavit  being  in 
the  form  prescribed  in  3  Ga.  Code 
(1895),  §  884. 

8.  Idaho.  —  Rev.  Stat.  (1887),  §  7509 
et  seq.,  being  identical  with  the  pro- 
visions of  the  California  Penal  Code. 
See  Form  No.  6665,  supra,  and  notes 
thereto. 

For  formal  parts  of  aflSdavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 
I,  p.  548. 

4.  In  the  name  of  the  state  of  Idaho  is 
the  method  of  prosecuting  criminal  ac- 
tions.    Idaho  Rev.  Stat.  (1887),  §  7353. 

6.  "  Defendant "  is  the  designation  of 
person  prosecuted.  Idaho  Rev.  Stat. 
(1887),  §  7354. 

6.  Magistrates  before  whom  complaint 
may  be  made  are  enumerated  in  Idaho 
Rev.  Stat.  (1887),  §  7511. 

7.  Illinois. — Starr  &  C.  Anno.  Stat. 
(1896),  p.  1376,  par.  529. 

Complaint  under  oath  is  necessary  to 
the  issuance  of  the  warrant  unless 
the  offense  had  been  committed  super 
visum.     RafTerty  v.  People,  6g  111.   iii. 

For  formal  parts  of  affidavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 
I,  p.  548. 

For  examples  of  criminal  complaints 
in  Illinois  see  Forms  Nos.  2413,  4078, 
4891. 


986 


Volume  5. 


6674. 


CRIMINAL  COMPLAINTS. 


6674. 


Abraham  Kent^  Esq.,  one  of  the  justices  of  the  peace  ^  in  and  for  said 
county,  on  the  tenth  day  of  March,  iS96,  who  being  duly  sworn, 
upon  his  oath  ssiys,  that /ohnL>oe^  of  Carrollton  in  the  said  county,^ 
on  the  fifth  day  oi  March,  iS96**  did  (Here  give  a  statement  of  the 
offense  charged  as  being  committed  in  ivords,  figures  and  language  accord- 
ing to  the  forms  under  the  particular  titles),^  and  that  the  said  Richard 
Roe  has  just  and  reasonable  grounds  to  believe,  and  does  believe,  the 
said  John  Doe  charged  as  aforesaid  to  be  guilty  thereof  as  herein  set 
forth.<5  He  therefore  prays  that  the  said  John  Doe  may  be  arrested 
and  dealt  with  according  to  law. 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  this  the  thirteenth  day  of  March. 

A.  D.   1^96. 

Abraham  Kent,  Justice  of  the  Peace. 


Form  No.  6674.^ 

(Homer's  Ind.  Stat.  (1896),  §  1626.) 

State  of  Indiana,  )       g 
County  oi  Posey,  f    '" 


1.  Magistrates  who  may  issue  war- 
rants of  arrest  are  enumerated  in  the 
statute,  Starr  &  C.  Anno.  Stat.  111. 
(1896),  p.  1376,  i^  528. 

2.  If  the  name  of  the  defendant  is  un- 
known to  the  complainant  or  judge  or 
justice  of  the  peace,  he  may  be  desig- 
nated by  any  name,  description  or 
circumstances  by  which  he  can  be 
identified  with  reasonable  certainty,  and 
if  on  arrest  he  refuses  to  disclose  his 
true  name  he  may  be  tried  and  con- 
victed by  the  name  used  in  the  war- 
rant. Starr  &  C.  Anno.  Stat.  111.  {1896), 
P-  ^377.  par.  531;  Willis  v.  People, 
2  111.  399. 

3.  The  connty  in  which  the  crime  was 
committed  should  be  alleged.  People 
V.  Higgins,  15  111.  no;  Noe  v.  People. 
39  III.  96.  But  the  particular  town  or 
locality  need  not  be  alleged.  People  v. 
Higgins,  15  111.  no. 

If  the  name  of  the  county  is  stated  in 
the  margin,  but  omitted  in  the  com- 
plaint itself,  verdict  will  cure  the  de- 
fect. Nichols  V.  People,  40  111.  395; 
Hanrahan  v.  People,  91  111.  142. 

"  In  the  county  aforesaid  "  is  sufficient 
without  repeating  the  name  of  the 
county.     Noe  v.  People,  39  111.  96. 

4.  The  day  of  the  month  must  be 
stated.  Whitesides  v.  People,  Breese 
(111.)  21. 

5.  Charging  part  of  complaint,  see 
supra,  note  i,  p.  932. 

6.  That  the  complainant  has  jnst  and 
reasonable  grounds  to  believe  such  person 


committed  the  offense  must  be  stated. 
Starr  &  C.  Anno.  Stat.  111.  (1896),  p. 
1376,  par  529. 

Under  a  former  and  similar  statute  it 
was  held  that  the  affidavit  must  state 
that  the  accused  committed  the  offense, 
and  that  the  prosecuting  witness 
suspects  or  has  good  reason  to  suspect 
that  the  accused  is  guilty  of  such 
offense.      Housh  v.  People,  75   III.  487. 

7.  Indiana.  —  Horner's  Stat.  (1896),  § 
1625. 

For  formal  parts  of  affidavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 
I,  p.  548. 

As  to  sufficiency  of  affidavit,  see  State 
V.  Gachenheimer,  30  Ind.  63. 

For  examples  of  complaints  in  Indiana 
see  Forms  Nos.  2416,  3938. 

See  also  State  v.  Cleveland,  etc.,  R. 
Co.,  137  Ind.  75,  for  an  illustration  of 
an  affidavit  which  was  held  to  have 
been  properly  quashed  for  insuf- 
ficiency. 

8.  Venue. —  In  a  criminal  action, 
based  on  an  affidavit  of  information, 
the  affidavit  sufficiently  lays  the  venue, 
where  the  caption  shows  the  venue  to 
be  in  Perry  county,  in  the  state  of  In- 
diana, while  in  the  body  of  the  affidavit 
it  is  charged  that  the  offense  was  com- 
mitted "  at  said  county."  Hawkins  &. 
State,  136  Ind.  630. 

The  affidavit  must  name  with  cer- 
tainty the  county  and  state  in  which 
the  offense  was  committed.  State  v. 
Beebe,  83  Ind.  172. 


937 


Volume  5. 


6675. 


CRIMINAL  COMPLAINTS. 


6675. 


Richard Roe^  svftSLVs  {or  affirms,  dis  the  case  may  be)  that  on  or 
about  the  tenth  day  of  March,  i  ?>96,  at  said  county,  /ohn  Doe^  as  affiant 
verily  believes,^  \Here  state  the  offense^.^ 

Richard  Roe. 
Subscribed  and    sworn    to    before   me   on  this  the  eleventh  day  of 
March,\We.^ 

Abraham  Kent,  Justice.**     (sEALy 


Form  No.  6675. 


The  title  of  the  action  and  the  name  of  the 
court  to  which  it  is  presented  is  not 
necessary  in  an  affidavit  in  a  criminal 
prosecution,  although  the  indictment  or 
information  must  contain  the  same. 
Hawkins  v.  State,  136  Ind.  630. 

1.  Affiant's  name  need  not  appear  in 
the  body  or  commencement  of  the  affi- 
davit when  it  appears  that  affiant  signed 
the  same  and  that  he  was  properly 
sworn.     Seller  v.  State,  90  Ind.  448. 

2.  Defendant's  Name. —  In  Levy  v. 
State,  6  Ind.  281,  the  information 
charged  the  defendant  by  his  surname, 
alleging  his  christian  name  to  be  un- 
known. On  motion  to  quash,  it  was 
held  that  defendant  was  sufficiently 
identified. 

3.  Made  on  information  and  belief  may 
be  sufficient.  State  v.  Buxton,  31  Ind. 
67;  Deveny  v.  State,  47  Ind.  208;  State 
V.  Ellison,  14  Ind.  380;  Franklin  v. 
State,  85  Ind.  99;  Toops  v.  State,  92 
Ind.  13. 

4.  Charging  part  of  complaint,  see 
supra^  note  i,  p.  932. 

Variance  as  to  dates  between  the  affi- 
davit and  information,  held  to  be  fatal, 
is  discussed  in  Dyer  v.  State,  85  Ind. 
525.  Variance  relating  to  dates,  held 
to  be  immaterial  as  not  prejudicing 
the  substantial  rights  of  the  defend- 
ant, is  discussed  in  Trout  7>.  State,  107 
Ind.  578;  also  in  Rubush  v.  State,  112 
Ind.  107. 

5.  The  jurat  would  not  be  invalid  if 
no  date  whatever  was  written  in  it, 
where  the  officer's  act  is  sufficiently 
authenticated  by  the  certificate  on  per- 
formance of  the  same.  Ross  v.  State, 
9  Ind.  App.  35.  In  this  case  the  year 
in  which  the  affidavit  was  subscribed 
and  sworn  to  is  given  as  "  189-. "  Such 
omission  was  clearly  a  clerical  error 
which  the  judge  might  have  corrected 
anv  time  during  the  trial. 

6.  Made  before  a  justice  of  the  peace, 
his  official  character  may  be  sufficiently 
designated  by  the  abbreviations  "J. 
P."     Hawkins  v.  state,  136  Ind.  630. 


In  Hosea  v.  State,  47  Ind.  180,  the 
jurat  was  in  this  form:  "Subscribed 
and  sworn  to  this  third  day  of  Septem- 
ber, 1B72.  A.  S.  Burr,  J.  P." — and 
was  held  to  be  sufficient. 

In  Brooster  v.  State,  15  Ind.  190,  the 
affidavit  upon  which  the  information 
was  based  purported  to  have  been  made 
in  the  county  in  which  the  case  was 
tried  below  before  one  who  signed  his 
name  as  "J.  C.  Applegate "  without 
designating  his  office.  Upon  motion 
to  quash,  it  was  held  that  the  court  be- 
low must  be  presumed  to  have  been 
fully  advised  that  J.  C.  Applegate  was 
authorized  to  administer  oaths. 

The  word  "  clerk  "  attached  to  the  sig- 
nature of  the  attesting  officer  will  be 
presumed  to  indicate  the  official  desig- 
nation of  the  clerk  of  the  circuit  court. 
Hipes  V.  State,  73  Ind.  39;  Mountjoy  z/. 
State,  78  Ind.  172;  Choen  v.  State,  85 
Ind.  209. 

Before  a  Notary.  —  May  be  sworn  to 
before  a  notary  public.  Hunter  v. 
State,  102  Ind.  42S. 

7.  Seal.  —  If  an  affidavit,  made  before 
a  police  judge,  has  no  seal  attached  to 
the  jurat,  such  omission,  even  if  re- 
quired, will  not  constitute  a  ground  for 
arrest  of  judgment.  Rosenstein  v. 
State,  9  Ind.  App.  290;  Mountjoy  v. 
State,  78  Ind.  172. 

For  the  effect  of  the  omission  of  the 
seal  of  the  notary  at  the  time  of  taking 
the  affidavit  and  attaching  the  same 
after  a  motion  in  arrest  is  made,  see 
Miller  v.  State,  122  Ind.  355. 

A  defective  affidavit  vitiates  the  informa- 
tion based  thereon.  State  v.  Beebe,  83 
Ind.  171;  Strader  v.  State,  92  Ind.  376; 
Brunson  v.  State,  97  Ind.  95;  Engle  v. 
State,  97  Ind.  122;  State  v.  Downs,  7 
Ind.  237. 

i,  Iowa.  —  Code  (1897),  §5182,  pro- 
viding that  a  complaint  in  preliminary 
proceedings  before  a  magistrate  may  be 
substantially  in  the  form  as  in  criminal 
actions  triable  before  a  justice  of  the 
peace.     In  section  5578,  the  form  of  the 


938 


Volume  5. 


6676. 


CRIMINAL  COMPLAINTS. 


6676. 


(Iowa  Code  (1897),  §5578.) 
[State  of  Iowa,  \    -  ,2 

Harrison  County.^  \      'J 
T/ie  State  of  Iowa      1 

against  [•  Before  Justice  Abraham  Keni^ 

John  Doe,  defendant.*  ) 

The  defendant  is  accused  of  the  crime  {Here  name  the  offense),  for 
that  the  defendant  on  the  tenth  day  of  March,  a.  d.  iS96,  at  the 
(Here  name  the  city,  town  or  township)  in  the  county  aforesaid  (Here 
state  the  act  or  omission  constituting  the  offense  as  in  the  indictment)^  [con- 
trary to  the  statute  in  such  case  made  and  provided  and  agamst  the 
peace  and  dignity  of  the  state  oi  Iowa. 

Richard  Roe. 
Subscribed  by  the  above  named  Richard  Roe  in  my  presence  and 
sworn  to  before  me  this  the  eleventh  day  of  March,  a.  d.  i^96. 

Abraham  Kent,  Justice  of  the  Peace.]* 

Form  No.  6676.' 

State  of  Kansas,  \ 
Cowley  County,    f 

Richard  Roe,  being  duly  sworn,  on  oath  says  that  on  the  second  day 
of  March,  A.   D.  18.9^,  in  the  county  of  Cowley  and  state  of  Kansas^ 


information  in  actions  triable  before 
justices  of  the  peace  is  given  as  set  out 
in  the  text  in  Form  No.  6675,  except 
the  words  and  figures  in  [  ]. 

For  example  of  complaint  in  bastardy 
proceedings  in  this  state  see  Form  No. 
3950. 

For  formal  parts  of  aflSdavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 

I,  p.  54S. 

A  police  officer  may  make  the  com- 
plaint.    Santo  V.  State,  2  Iowa  165. 

The  term  "magistrate"  includes  any 
judge  of  a  superior,  supreme  or  dis- 
trict court  throughout  the  state,  a  jus- 
tice of  the  peace,  mayor  of  cities  and 
towns,  judges  of  police  or  other  city 
courts,  and  police  and  other  special  jus- 
tices in  cities  and  towns  within  their 
respective  counties.     Iowa  Code  (1897), 

§  5097- 

1.  Name  of  county  must  be  stated. 
Iowa  Code  (1897).  §  5577. 

2.  Words  in  [  ]  are  not  given  in  the 
statutory  form. 

3.  Name  of  the  justice  must  be  given. 
Iowa  Code  (1897),  §5577. 

4.  Names  of  the  parties,  if  the  defend- 
ants be  known,  and  if  not,  then  such 
names  as  may  be  given  them  by  the 
complainant,  must  be  stated.  Iowa 
Code  (1897),  §5577- 

5.  Statement  of  the  acts  constituting  the 
offense    in    ordinary  and   concise    lan- 


guage, and  the  time  and  place  of  the 
commission  of  the  offense,  as  near  as 
may  be,  must  be  stated.  Iowa  Code 
(1897).  §  5577- 

The  facts  constituting  the  offense 
should  be  stated  with  as  great  precision 
as  in  an  indictment.  State  v.  Bitman, 
13  Iowa  485;  State  v.  Allen.  32  Iowa 
491;  State  V.  Butcher,  79  Iowa  no. 

Merely  stating  the  offense  charged, 
though  in  the  language  of  the  statute 
itself,  is  insufficient.  State  v.  Butcher, 
79  Iowa  no. 

Charging  an  assault  upon  the  person 
of  the  informant,  without  naming  the 
person,  but  which  is  subscribed  and 
sworn  to  by  him,  has  been  held  to  be 
good.    State  v.  McKinley,  82  Iowa  445. 

Charging  part  of  complaint,  see  supra, 
note  I,  p.  932. 

6.  Must  be  subscribed  and  sworn  to,  and 
filed  with  the  justice.  Iowa  Code 
(1897),  i5  5576. 

If  the  informant  subscribes  and 
swears  to  the  affidavit  at  the  end  of  the 
information,  it  is  sufficient.  State  v. 
Devine,  4  Iowa  443. 

Filing  of  Complaint. — The  justice  must 
file  the  complaint,  and  mark  the  time 
of  filing  the  same.     Iowa  Code  (1897), 

8 5579- 

7.  Kansas.  —  2  Gen.  Stat  (1897),  p. 
402,  §  35- 

Ohio.  —  Bates'  Anno.   Stat.  (1897),   § 

9  Volume  5. 


6677. 


CRIMINAL  COMPLAINTS. 


^^11. 


John  Doe  did  then  and  there  unlawfully  and  feloniously  [buy  and 
receive  one  hand  saw,  of  the  value  of  one  dollar  and  ^f/Vy  cents,  one 
monkey  wrench,  of  the  value  oi  fifty  cents,  of  the  goods  and  chattels  of 
one  David  Miller,  then  lately  before  feloniously  stolen,  taken  and 
carried  away,  he  the  said  John  Doe  then  and  there  well  knowing  the 
said  goods  and  chattels  to  have  been  feloniously  stolen,  taken  and 
carried  away  as  aforesaid],^  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and  against  the  peace  and  dignity  of 
the  state  of  Kansas 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  this  fifth  day  of  March,  a.  d. 

Abraham  Kent,  Justice  of  the  Peace. ^ 


Form  No.  6677.' 

Commonwealth  of  Kentucky,  )  Before  Abraham  Kent,^  Justice  of  the 
Franklin  County.  j  Peace. 

On  this  tenth  day  of  March,  a.  d.  i^96,  personally  came  before  me, 
Abraham  Kent,  a  justice  of  the  peace  in  and  for  said  county,  one 
Richard  Roe,  who  being  duly  sworn  according  to  law,  deposes  and 
says,  that  on  tht  fifth  day  oi  January,  iS96,  at  and  in  said  Franklin 
county  aforesaid,  on^  John  Doe  did  commit  a  felony*  (or  the  crime 
of^  to  wit,  (^Here  the  nature  of  the  offense  should  be  fully  specified,  and 
such  a  statement  of  the  facts  as  will  show  probable  cause  for  believing  the 


7133  et  seq.     See  infra.  Form   No.  6693, 
and  notes  thereto. 

Oklahoma.  — Stat.  (1893),  §  4958.  See 
infra.  Form  No.  6694,  and  notes 
thereto. 

Wyoming.  —  Stat.  (1887),  §  3181.  See 
infra.  Form  No.  6707,  and  notes 
thereto. 

For  formal  parts  of  affidavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 
I,  p.  548. 

Must  be  in  Writing.  —  Prell  v.  Mc- 
Donald, 7  Kan.  426. 

1.  The  charging  part  of  this  complaint 
enclosed  by  [  ]  is  based  upon  the  crimi- 
nal complaint  in  State  v.  McLaughlin, 
35  Kan.  650,  which  was  held  to  be  suffi- 
cient. See  also  supra,  note  I,  p.  932. 
'^  For  other  forms  of  criminal  com- 
plaints in  Kansas,  see  Bailey  v.  Dodge, 
28  Kan.  78;  State  v.  Wahl,  35  Kan. 
608. 

Describing  the  offense  in  the  language 
of  the  statute  is  ordinarily  sufficient  in 
the  complaint.  State  v.  Armell.  8  Kan. 
289;  State  V.  Blakesley,  39  Kan.  153; 
State  V.  Craddock,  44  Kan.  489. 

The  same  follness  of  statement  required 
in  an  information  is  not  required  in  the 
preliminary  papers.  State  v.  Baker, 
57  Kan.  541. 


The  precise  time  when  the  offense  was 
committed  need  not  be  stated  where  it 
appears  clearly  to  have  been  committed 
within  the  limitations  prescribed  by 
statute.    State  v.  Barnett,  3  Kan.  250. 

Imperfect  statement,  orastatementin 
very  general  terms  in  the  complaint, 
maybe  cured  by  verdict,  though  it  may 
have  been  taken  advantage  of  before 
verdict.  State  v.  Knowles,  34  Kan.  393. 

Amendment  of  complaint,  see  State  v. 
Hinkle,  27  Kan.  308;  State  v.  Redford, 
32  Kan.  198. 

2.  Magistrates  before  whom  the  com- 
plaint may  be  made  are  enumerated  in 
the  statute.  2  Kan.  Gen.  Stat.  (1897),  p. 
402,  §  35,  P-  398,  §  7. 

3.  Kentucky.  —  Bullitt's  Crim.   Code 

(1895),  §  31.  ' 

For  formal  parts  of  affidavits, generally, 
consult  the  title  Affidavits,  vol.  I,  p. 
548. 

4.  Who  are  magistrates  and  police 
officers  are  enumerated  in  the  statute. 
Bullitt's  Crim.  Code  Ky.  (1895),  §  26. 

6.  As  to  the  penalty  for  the  issuing  of  a 
warrant  in  felony  cases  by  any  magis- 
trate without  first  having  filed  in  the 
office  an  affidavit  fully  specifying  the 
nature  of  the  offense,  see  Bullitt's  Crim. 
Code  Ky.  (1895),  §  31. 


940 


Volume  5. 


6678. 


CRIMINAL  COMPLAINTS. 


6679. 


accused  guilty  of  the  offense  charged,  y- 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  by  Richard  Roe  this  the  tenth 
dny  oi  March,  a.  d.  iS96. 

Abraham  Kent,  Justice  of  the  Peace. 


Form  No,  6678.* 

State  of  Louisiana,      \  In  the   First   Justice's  Court  of  the  Fourth 
Parish  of  St.  Landry.  )  Ward.^ 

Richard  R»e,^  being  duly  sworn,  deposes  and  says  that  on  or  about 
the  tenth  of  March,  iS96,^  and  in  the  parish  of  St.  Landry,^  one  John 
Doe,*^  late  of  said  parish,  did  {Here  set  out  the  statement  of  facts  consti- 
tuting the  offense),^  whereupon  complainant  prays  that  the  said  John 
Doe  may  be  arrested  and  dealt  with  according  to  law. 

Richard  Roe. 

Sworn  to  and  subscribed  before  me  this  the  eleventh  day  of  March, 
iS96. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6679.' 

State  of  Maine. 
Kennebec,  ss. 
To  Abraham  Kent,  Esq.,  a  trial  justice  within  and  for  the  county 
of  Kennebec^ 
Richard  Roe,  of  Gardiner,  in  said  county,  on  the  tenth  day  of  March, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-six, 
on  behalf  of  said  state,  on  oath,^  complains  that  John  Doe,  of  Gardi- 


1.  Charging  part  of  complaint,  see 
supra,  note  i,  p.  932. 

2.  Louisiana.  —  Rev.    Laws    (1897), 

§  lOIO. 

For  formal  parts  of  affidavits,  gener- 
ally, consult  the  title  Affidavits,  vol.  i, 
p.  548. 

3.  Committing  magistrates  are  justices 
of  the  peace,  district  and  parish  judges. 
La.  Rev.  Laws  (1897),  §  loio ;  La. 
Const.,  art.  126. 

4.  Name  of  Offender. — Complaint  before 
a  justice  of  the  peace  should  specify 
the  name  and  surname  of  the  offender 
and  also  the  person  who  may  have 
sustained  the  injury,  where  the  offense 
is  of  such  a  nature  as  to  produce  in- 
jury to  the  person  or  property.  La. 
Rev.  Laws  (1897),  §  1017. 

5.  Time  and  Place.  —  The  complaint 
must  specify  the  month,  day  and  year 
and  place  when  and  where  the  offense 
complained  of  was  committed.  La. 
Rev.  Laws  (1897),  ^  1017. 

6.  Charging  part  of  complaint,  see  su- 
pra, note  I,  p.  932. 

Sorplosage.  —  The  jurisdiction  of  a 
committing  magistrate  is  not  affected 


by  the  fact  that  in  affidavits  taken  be 
fore  him,  wherein  facts  are  charged  to 
have  been  committed  which  constitute 
a  crime,  an  error  has  been  made  in  the 
statute  as  to  the  particular  statute  vio- 
lated. The  statement  can  be  stricken 
out  as  surplusage.  State  v.  Judge,  44 
La.  Ann.  1093. 

7.  Maine.  —  Rev.  Stat.  (1883).  c.  132. 
Compare  also  form  set  out  in  Me.  Rev. 
Stat.  (1883),  p.  315.  See  also  Form  No. 
2409. 

For  formal  parts  of  affidavits,  generally, 
consult  the  title  Affidavits,  vol.  i,  p. 
548. 

The  complaint  in  preliminary  proeeed- 
ings  before  any  magistrate  authorized 
to  issue  processes  is  substantially  the 
same  in  form  as  in  offenses  triable  by 
trial  justices.     Me.    Rev.   Stat.   (1883), 

c.  133.  §§  2.  13- 

8.  The  officers  who  may  iisne  criminal 
processes  are  enumerated  in  the  statute. 
Me.  Rev.  Stat.  (1883),  c.  133,  j^  2. 

9.  An  officer,  when  it  is  the  duty  to 
make  complaints,  may  make  them  ac- 
cording to  his  knowledge  and  belief. 
Me.  Rev.  Stat.  (1883),  c.  133,  §  3. 


941 


Volume  5. 


6680.  CRIMINAL  COMPLAINTS.  6681. 

ner  aforesaid,  in  said  county,  on  the  fifth  day  of  March,  iS96,  at  said 
Gardiner,  in  said  county  of  Kennebec,  did  {Here  state  the  name  of  and 
facts  constituting  the  offense')^  against  the  peace  of  said  state,  and  con- 
trary to  the  form  of  the  statute  in  such  case  made  and  provided.^ 

Richard  Roe. 

Kennebec,  ss.  On  the  tenth  day  of  March,  i896,  said  Richard  Roe 
makes  oath^  that  the  above  complaint  by  him  subscribed  is  true. 

Before  me:  Abraham  Kent,  Trial  Justice. 

Form  No.  6680.' 

Baltimore  County,  to  wit: 

The  information  of  Richard  Roe,  of  Baltimore,  state  of  Maryland, 
who  first  being  duly  sworn  according  to  law  saith  on  oath  this  tenth 
day  of  March,  i896,  before  me  Abraham  Kent,  one  of  the  justices  of 
the  peace  of  the  state  of  Maryland  in  and  for  said  county,  that  one 
John  Doe,  of  Baltimore,  and  state  of  Maryland,  did,  on  the.  fifth  day 
of  March,  iS96,  at  and  in  said  county  aforesaid  {Here  state  the  facts 
constituting  the  offense),^  against  the  peace  and  dignity  of  the  state  of 
Maryland. 

Richard  Roe. 

Sworn  and  subscribed  to  before  me  this  tenth  day  of  March,  i896. 

Abraham  Kent,  Justice  of  the  Peace.* 

Form  No.  6681.' 

Commonwealth  of  Massachusetts. 
To  the  Justices  of  the  Municipal  Court  of  the  Charlestown  District, 
holden  in  said  district  in  the  city  of  Boston  for  the  transaction 
of  criminal  business,  within  and  for  the  county  of  Suffolk.^ 

1.  Charging  part  of  complaint,  see  For  formal  parts  of  affidavits,  generally, 
supra,  note  I,  p.  932.  consult  the  title  Affidavits,  vol.  i,  p. 

2.  Technicalities  for  which  a  com  plaint     548. 

shall  not  be  quashed  or  adjudged  bad  6.  Charging    part   of    complaint,    see 

are  enumerated   in   the    statute.     Me.  supra,  note  i,  p.  932. 

Rev.  Stat.  (1883),  c.  131,  >?  12.  6.  The  complaint  must  be  sworn  to ;  and 

When  an  intent  to  defraud  is  necessary  the  complainants  are  sworn,  if  Chris- 

to  constitute  an  offense,  it  is   sufficient  tians,  on  the  Four  Evangelies,  if  Jews, 

to  allege  generally  an  intent  to  defraud,  on  the  Old  Testament,  as  follows:  "  You 

Me.  Rev.  Stat.  (1883),  c.  131,  §  11.  shall  true  answer  make  to  such  ques- 

3.  Affirmation.  —  It  is  sufficient  if  the  tions  as  shall  be  demanded  of  you.     So 
magistrate  certify  that  the  complainant  help  you  God."     1  Chit.  Cr.  L.  31. 
affirmed    the    truth    of    the    complaint  7.  Massachusetts.  —  Pub.  Stat.  (1882), 
without    certifying    that    complainant  c.  212,  §  14  ^/ j^^. 

was  conscientiously  scrupulous  of  tak-  Forformalpartsof  affidavits,  generally, 

ing  an  oath.     State  v.  Adams,  78  Me.  consult  the  title  Affidavits,  vol.  i,  p. 

486.  548. 

4.  Maryland.  —  The  statutes  have  Certain  defects  of  form  which  shall  not 
said  but  little  concerning  the  duties  of  vitiate  complaints  of  this  character  are 
justices  of  the  peace  in  the  suppression  enumerated  in  Mass.  Pub.  Stat.  (1882), 
and  punishment  of  crime;  and  we  are  c.  213,  §§  16,  17. 

left  with  the  practice  forms  of  England,  8.  Magistrates  who  may  issue  crimi- 

which    were   used    by   Maryland  as   a  nal  process  are  enumerated  in  the  stat- 

colony,  which  have  undergone  few,  if  ute.     Mass.   Pub.  Stat.  (1882),  c.  212,  § 

any,    alterations     since    that     period.  14;  c.  154,  §  43  (applying  to  municipal 

Latrobe's   Just.   Pr.  (8th   ed.),   §   1294.  courts);  c.  154,  §  12  (applying  to  police 

See  I  Chit.  Cr.  L.  31.  and  district  courts). 

942  Volume  5. 


6681. 


CRIMINAL  COMPLAINTS. 


6681. 


Richard  Roe,^  of  Boston,  in  the  county  of  Suffolk,  on  behalf  of  the 
commonwealth  of  Massachusetts,  on  oath  complains  that  John  Doe^  of 
Boston,  in  the  county  of  Suffolk,  on  the  second  day  of  March,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight,  at  the 
city  of  Boston,  within  the  judicial  district  of  said  court,  in  the  county 
of  Suffolk,"^  with  force  and  arms  {Here  state  the  offense  and  facts  con- 


Tor  precedents  of  criminal  complaints 
see  Com.  v.  Rice,  9  Met.  (Mass.)  253; 
Com.  V.  Robertson,  5  Cush.  (Mass.) 
438;  Com.  V.  Lavonsair,  132  Mass.  i; 
Com.  V.  Smith,  141  Mass.  135;  Com. 
V.  Carroll,  145  Mass.  403;  Com.  v.  Mc- 
Carthy, 145  Mass.  575;  Com.  v.  Plaisted, 
148  Mass.  375. 

AddreM  — Justice  of  the  Peace.  —  In 
Com.  V.  Melling,  14  Gray  (Mass.)  388, 
the  complaint  was  addressed  to  "'F.  L. 
Porter,  a  Justice  of  the  Peace,"  etc.,  and 
the  jurat  was  signed  in  like  manner. 
The  complaint  was  sustained  against 
the  objection  that  the  description  of  the 
justice  of  the  peace  before  whom  it  was 
made  was  not  sufficient  in  merely  giv- 
ing the  initials  of  his  christian  name. 

In  Com.  V.  Taber,  155  Mass.  5,  the 
complaint  was  addressed  to  '^George  G. 
Withington,  justice  of  the  peace  in  and 
for  the  county  of  Bristol,  and  common- 
wealth of  Massachusetts,  designated  and 
commissioned  to  issue  warrants  in 
criminal  cases." 

District  Court.  —  A  justice,  or  special 
justice,  may  receive  a  complaint  when 
the  court  is  not  in  session.  Mass.  Pub. 
Stat.  (1888),  c.  154,  ^  22,  and  his  official 
character  is  sufficiently  shown  by  the 
complaint  which  describes  him  as 
"special  justice  of  the  district  court," 
and  by  the  words  "special  justice"  ap- 
pended to  his  signature  to  the  jurat. 
Com.  V.  Lynn,  154  Mass.  405. 

Addressed  to  ^^ Charles  Thompson,  Es- 
quire, Associate  Justice  of  the  District 
Court  of  Central  Middlesex,  sitting  in 
the  absence  of  the  justice,"  was  held  to 
be  sufficient.  Com.  v.  De  Voe.  159 
Mass.  loi. 

Municipal  Court. —  In  Com.  v.  Certain 
Intoxicating  Liquors,  97  Mass.  601,  the 
complaint  was  addressed  "  To  the  jus- 
tice of  the  Municipal  Court  of  the  city 
of  Boston,  holden  at  said  Boston  for  the 
transaction  of  criminal  business."  It 
was  held  that  the  addition  of  the  words 
"  for  the  transaction  of  criminal  busi- 
ness "  was  not  a  misdescription  of  the 
style  of  the  municipal  court. 

Addressed  to  the  "  Municipal  Court 
of  the  Brighton  District  of  the  city  of 
Boston,  holden  in  said  Brighton  District 


for  the  prosecution  of  criminal  business 
within  and  for  the  county  of  Suffolk,"  is 
sufficient.  Com.  v.  Hoar,  121  Mass. 
375- 

Police  Court.  —  In  Com.  v.  Brown,  158 
Mass.  168,  the  complaint  was  addressed 
"  To  the  Justice  of  the  Police  Court  of 
Chelsea."  This  form  was  held  to  be 
sufficient  and  proper  even  though  a 
special  justice  was  sitting  at  the  time 
that  it  was  actually  laid  before  him. 

1.  Complainant's  name  need  not  appear 
in  the  body  of  the  complaint.  Com.  v. 
Eagan,  103  Mass.  71. 

The  complainant,  having  been  prop- 
erly described  in  the  first  count  of  the 
complaint,  may  be  referred  to  as  "  said 
complainant"  in  subsequent  counts. 
Com.  V.  Clapp,  16  Gray  (Mass.)  237. 

2.  Name  of  Acensed.  —  A  complaint 
against  "  John  Doe  "  containing  several 
counts,  the  first  of  which  gives  his 
name  in  full,  is  sufficient  though  de- 
scribing him  in  the  subsequent  counts 
as  "the  said  John,"  and  this  notwith- 
standing the  fact  that  the  name  of  the 
complainant  may  also  be  John.  Cora. 
V.  Hagarman,  10  Allen  (Mass.)  401; 
Com.  V.  Clapp,  16  Gray  (Mass.)  237. 

Place  of  defendant's  residence  need  not 
be  stated  where  jurisdiction  does  not 
depend  upon  place  of  residence.  Com. 
V.  Taylor,  113  Mass.  i. 

A  person  unknown  may  be  referred  to 
as  such  in  a  criminal  complaint  even 
though  his  name  might  have  been 
ascertained.  Com.  v.  Sherman,  13 
Allen  (Mass.)  248. 

3.  Statement  of  Place.  —  Charging  the 
offense  to  have  been  committed  "  within 
the  judicial  district  of  said  court,"  etc., 
sufficiently  states  the  venue  where  the 
caption  of  the  complaint  is  correct. 
Com.  V.  Hoar,  121  Mass.  375;  Com.  v. 
Clancy,  154  Mass.  128. 

A  statement  that  the  offense  was 
committed  "  at  Cambridge,  Massa- 
chusetts," is  a  sufficient  statement  that 
the  offense  was  committed  within  the 
jurisdiction  of  the  Third  District  Court 
of  Eastern  Middlesex.  Com.  v.  Carroll, 
145  Mass.  403. 

The  place  having  been  properly 
designated  in  the  first  count  of  a  corn* 


943 


Volume  5. 


6681. 


CRIMINAL  COMPLAINTS. 


6681. 


stituiing  it),^  against  the  peace  of  said  commonwealth,  and  the  form  of 


plaint  may  be  referred  to  in  subsequent 
counts  as  "  town  and  county  afore- 
said."    Com.  V.  Clapp,  i6  Gray  (Mass.) 

237- 

In  Com.  V.  Quin,  5  Gray  (Mass.)  478, 
the  complaint  had  no  caption  and  no 
venue  in  the  margin,  but  was  in  these 
words:  "  To  the  Justice  of  the  Police 
Court  within  and  for  the  city  of  Salem 
in  the  county  of  Essex.  John  H.  Newton, 
constable  of  the  city  oi  Salem,  in  behalf 
of  the  Commonwealth  of  Massachusetts, 
on  oath  complains  that  Pa trich  Quin  of 
Salem  in  said  county,  on  the  sixteenth 
day  oi/une,  A.  d.  1855,  at  Salem  afore- 
said, did  sell  to  oneyohn  Wentworth  a 
certain  quantity  of  intoxicating  liquor, 


to  wit. 


in    evil    example    to    all 


others  in  like  cases  to  offend,  against 
good  morals,  against  the  peace  of  said 
commonwealth  and  the  form  of  the 
statute  in  such  case  made  and  pro- 
vided. He  therefore  prays  said  de- 
fendant may  be  apprehended  and 
brought  before  said  court,  and  held  to 
answer  to  this  complaint  and  further 
dealt  with  relative  to  the  same  accord- 
ing to  law.  J.  H.  Newton. 

Essex,  ss.  The  nineteenth  day  oi  June, 
in  the  year  of  our  Lord  one  thousand 
eight  hundred  2indjifty-five,  the  afore- 
said complainant  made  oath  to  the  truth 
of  the  foregoing  complaint  before  said 
court.  Sam' I  P.  Andrews,  Clerk."  The 
complaint  was  upheld  as  sufficiently 
showing  that  the  offense  was  committed 
within  the  commonwealth  of  Massa- 
chusetts. 

Statement  of  Time  —  Generally.  —  A 
complaint  dated  on  the  day  on  which 
the  offense  is  alleged  to  have  been  com- 
mitted is  sufficient.  Com.  v.  Bush,  112 
Mass  280.  But  a  complaint  charging 
an  offense  to  have  been  committed  after 
the  date  of  the  complaint  is  not  suf- 
ficient.    Com.  V.  Doyle,  no  Mass.  103. 

A  complaint  charging  the  commission 
of  an  offense  on  the  first  day  of  August, 
i36o,  and  "  from  day  to  day  to  the  day 
of  the  date  of  receiving  this  complaint  " 
sufficiently  charges  the  offense  during 
the  whole  time,  where  the  complaint  is 
certified  by  the  magistrate  to  have  been 
"received  and  sworn  to  on  th& twenty- 
ninth  day  of  August,  in  the  year  of  our 
Lord  i860."  Com.  v.  Frates,  16 Gray 
(Mass.)  236. 

For  a  clerical  error  with  respect  to 
the  allegation  of  time  in  a  complaint  to 
a  trial   justice  for  keeping  and  main- 


taining a  common  nuisance  see  Com. 
V.  Le  Clair,  147  Mass.  539. 

The  letters  '*  A.  D."  preceding  the 
words  expressing  the  year  are  suf- 
ficiently certain,  having  acquired  an 
established  use  in  the  English  lan- 
guage. Com.  V.  Clark,  4  Cush.  (Mass.) 
596. 

The  letters  "A.  D."  are  not  neces- 
sary where  the  date  of  the  commission 
of  the  offense  is  stated  in  figures.  Com. 
V.  McLoon,  5  Gray  (Mass.)  91. 

Omission  of  the  words  "  0/  our  Lord," 
in  a  complaint  charging  an  offense  to 
have  been  committed  "  on  the  four- 
teenth day  of  December  in  the  year  one 
thousand  eight  hundred  and  fifty- 
eight,"  is  immaterial.  Com.  v.  Doran, 
14  Gray  (Mass.)  37;  Com.  v.  Sullivan, 
14  Gray  (Mass.)  97. 

Surplusage. — Where  the  complaint 
duly  sets  forth  the  time  of  the  commis- 
sion of  the  offense  in  words  at  length, 
the  addition  of  the  date  at  the  end  of 
the  complaint,  in  figures,  is  mere  sur- 
plusage. Com.  V.  Keefe,  7  Gray  (Mass.) 
332. 

Use  0/  Arabic  numerals  in  designat- 
ing the  date  of  the  commission  of  the 
offense  is  sufficient.  Com.  v.  Smith, 
153  Mass.  97;  Com.  v.  Hagarman,  10 
Allen  (Mass.)  401. 

Year  Omitted.  — In  Com.  v.  Hutton, 
5  Gray  (Mass.)  89,  the  complaint  to  the 
police  court  of  New  Bedford,  signed  by 
Lewis  G.  Allen,  alleged  that  the  de- 
fendant, at  New  Bedford,  ^^  on  the  third 
day  of  June  instant,"  etc.,  without 
mentioning  the  year.  The  complaint 
was  held  to  be  insufficient,  notwith- 
standing at  the  end  thereof  was  ap- 
pended the  following  ceitificate,  signed 
by  the  clerk  of  the  police  court:  ''Bris- 
tol, ss.  Received  and  sworn  to  on  the 
fourth  day  of  June,  A.  D.  lijj,  before 
said  court." 

1.  Charging  Part.  —  In  Com.  v.  Mell- 
ing,  14  Gray  (Mass.)  388,  there  was  a 
complaint  wherein  ''Alice  Langley  of 
Newport"  charged  the  defendant  with 
an  unlawful  sale  of  liquors  "to  said 
Alice."  The  complaint  was  upheld 
against  the  objection  that  in  alleging 
the  sale  to  "said^/iV^"  it  did  not  suf- 
ficiently designate  to  whom  the  sale 
was  made. 

That  "complainant  has  probable  cause 
to  suspect"  that  the  accused  has  com- 
mitted an  offense  is  not  sufficient  to 
sustain  a  conviction,  though  perhaps  it 


944 


Volume  5. 


6681. 


CRIMINAL  COMPLAINTS. 


6681. 


the  statute  in  such  case  made  and  provided. ^ 

Richard  Roe?' 
Suffolk,  ss.     Received  and  sworn  to  the  fifth  day  of  March,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight,  before 
said  court. 

Charles  S.  Sullivan,  Clerk. ' 


is  valid  for  the  purpose  of  a  prelimi- 
nary hearing  for  commitment  to  an- 
swer to  an  indictment  in  another  court. 
Com.  V.  Phillips,  i6  Pick.  (Mass.)  211. 

Character  "ft"  may  be  used  in  a 
criminal  complaint  to  express  the  con- 
junction "  and."  Cora.  v.  Clark,  4 
Cush.  (Mass.)  596. 

Felony  or  Feloniously.  —  It  shall  not 
\^c  necessary  to  allege  in  any  complaint 
that  the  offense  charged  is  a  felony  or 
felonious,  and  done  feloniously,  nor 
shall  a  complaint  be  quashed  or  deemed 
invalid  by  reason  of  the  omission  of 
the  words  "felony,"  "felonious,"  or 
"  feloniously."  Mass.  Pub.  Stat.  (1888), 
c.  210,  §  2. 

Beferring  to  or  Beciting  Statutes.  —  A 
criminal  complaint  is  fatally  defective 
where  the  recitals  of  the  title  of  a  pub- 
lic statute  therein  are  so  made  as  to 
make  it  senseless.  Com.  v.  A  Man 
whose  Name  is  Unknown.  6  Gray 
(Mass.)  489. 

In  Com.  V.  Washburn,  128  Mass.  421, 
it  was  held  that  a  complaint  which  did 
not  set  forth  facts  necessary  to  consti- 
tute an  offense,  e.xcept  by  reference  to 
a  statute  the  year  of  which  was  errone- 
ously given,  would  not  support  a  con- 
viction. 

There  is  no  variance  in  a  complaint 
which  charged  that  defendant  "  in  and 
upon  the  body  ol Jos.  T.  Battles"  did 
make  an  assault,  and  "him  the  said 
Joseph  T.  Battles  did  then  and  there 
beat,  bruise  and  wound,"  etc.,  "and 
other  wrongs  to  the  %2\A  Joseph  T.  Bat- 
tles then  and  there  did,"  the  court  say- 
ing: "  We  think  that  it  appears  by  the 
complaint  itself  that  the  name  of  the 
person  assaulted  was  Joseph  T.  Battles, 
and  that  "Jos."  is  an  abbreviation  for 
"Joseph."  Com.  v.  Smith,  153  Mass.  97. 

1.  Most  conclude  "against  the  form 
of  the  statute."  Com.  v.  Gay,  5  Pick. 
(Mass.)  44. 

Concluding  "against  the  form  of  the 
statutes"  may  be  good  after  verdict, 
although  the  proceeding  be  one  under 
a  single  statute.  Com.  v.  Hitchings,  5 
Gray  (Mass.)  482. 

2.  The  complaint  must  be  signed  by  the 
complainant   and  sworn   to  before  the 


magistrate  receiving  it.  Mass.  Pub. 
Stat.  (1888),  c.  212,  55  15. 

May  be  signed  by  initials  where  it  ap- 
pears in  the  jurat  who  signed  the  com- 
plaint. Com.  V.  Quin,  5  Gray  (Mass.) 
478. 

A  complaint  made  by  ''Samuel  W. 
Richardson,  City  Marshal  ol  Cambridge" 
certified  by  the  magistrate  to  whom  it 
was  addressed  to  have  been  "  received 
and  sworn  to  before  said  court,"  suffi- 
ciently showed  that  it  was  signed  and 
sworn  to  by  the  complainant,  although 
it  was  merely  signed  "5.  W.  Richard- 
son." Com.  V.  Wallace,  14  Gray  (Mass.) 
382. 

Sigrned  by  Mark.  —  Where  the  magis- 
trate to  whom  the  complaint  was  ad- 
dressed certified  that  it  was  "  taken  and 
sworn  to,"  it  was  sufficient,  though 
complainant  signed  it  by  mark  and 
there  was  no  attesting  witness  to  the 
mark.  Com.  v.  Sullivan,  14  Gray 
(Mass.)  97. 

Failure  to  date  the  complaint  is  not 
fatal  where  the  jurat  shows  when  a 
complaint  was  made.  Com.  v.  Blake, 
12  Allen  (Mass.)  188;  Com.  v.  Mclvor, 
117  Mass.  118. 

3.  Jurat  —  Generally.  — The  precision 
required  in  an  indictment  or  complaint, 
which  states  the  charge  on  which  the 
defendant  is  to  be  tried,  is  not  neces- 
sary in  the  jurat,  which  is  a  mere 
certificate  of  the  magistrate  that  the 
requisite  oath  has  been  taken.  Com. 
V.  Keefe,  7  Gray  (Mass.)  332. 

The  words  "  received  and  sworn  to  "  are 
equivalent  to  an  averment  by  the 
magistrate  that  the  signature  and  oath 
were  those  of  the  complainant  named 
in  the  complaint.  Com.  v.  Wallace,  14 
Gray  (Mass.)  383;  Com.  v.  Sullivan,  14 
Gray  (Mass.)98;  Com.  v.  Keefe,  7  Gray 
(Mass.)  332. 

A  magistrate's  certificate  that  the 
complaint  was  "  taken  and  sworn " 
before  him  is  sufficient.  Com.  v.  Ben- 
nett, 7  Allen  (Mass.)  533. 

The  jurat  may  be  signed  either  by  a 
justice  of  the  court  or  the  clerk.  Com. 
V.  McGuire,  11  Gray  (Mass.)  459. 

Before  Clerk  —  Surplusage.  —  The 
words  "justice  of  the  peace"  are  sur- 


5  E.  of  F.  P.  — 60. 


945 


Volume  5. 


6682. 


CRIMINAL  COMPLAINTS. 


6682. 


Form  No.  6682.' 


plusage  where  the  clerk  signs  his  name 
as  "justice  of  the  peace,  clerk  of  said 
court  "  Com.  v.  Certain  Intoxicating 
Liquors,  135  Mass.  519. 

Before  Clerk  Pro  Tempore.  —  The  at- 
testation of  the  papers  by  '■'James  B. 
Stacey,  clerk  pro  tern."  is  prima  facie 
sufficient  without  adding  to  his  signa- 
ture the  cause  of  his  appointment  as 
clerk  pro  tempore.  Com.  v.  Connell,  9 
Allen  (Mass.)  488;  Com.  v.  Gay,  153 
Mass.  211. 

Before  Justice  of  the  Peace.  —  The  de- 
scription "justice  of  the  peace  author- 
ized to  issue  warrants  as  aforesaid," 
appearing  in  the  jurat  referring  back  to 
a  correct  caption  in  a  complaint,  is  suf- 
ficient. Com.  V.  Tabor,  155  Mass.  5; 
Com.  V.  Peto,  136  Mass.  155;  Com.  v. 
O'Hanlon,  155  Mass.  198. 

Before  Special  Justice.  —  The  certifi- 
cate need  not  state  whether  a  complaint 
was  sworn  to  before  the  standing  jus- 
tice or  a  special  justice,  where  it  states 
that  it  was  "sworn  to  before  said 
court."  Com.  v.  Wingate,  6  Gray 
(Mass.)  485. 

It  sufficiently  appeared  that  the  special 
justice  was  authorized  to  act  in  the  case 
where  the  complaint  to  the  police  court 
of  Chickopee  was  certified  simply  by 
"  George  S.  Taylor,  Special  Justice," 
where  the  warrant  issued  thereon  on 
the  same  day,  and  annexed  to  the  com- 
plaint, was  attested  thus:  "Witness, 
George  S.  Taylor,  Esquire,  Special  Jus- 
tice of  this  court,  at  said  Chickopee,  this 
twenty-ninth  day  of  July,  in  the  year 
of  our  Lord  one  thousand  eight  hun- 
dred and  fifty-eight.  George  S.  Tflylor, 
Special  Justice,  'the  standing  justice 
being  absent  from  the  town  of  Chickopee 
and  unable  to  attend."  Com.  v.  Fitz- 
gerald, 14  Gray  (Mass.)  14. 

It  is  to  be  presumed  that  the  magis- 
trate acted  within  the  authority  given 
him  by  the  statute,  and  that  the  court 
was  not  in  session,  where  the  complaint 
appears  to  have  been  properly  received 
by  the  special  justice.  His  official 
character  is  suflSciently  shown  by  the 
complaint  which  described  him  as 
"  special  justice  of  the  district  court  of 
Hampshire,"  and  by  the  words  "  special 
justice"  appended  to  his  signature  to 
the  jurat.     Com.   v.  Lynn,   154   Mass. 

405- 

In  Com.  V.  Conner,  155  Mass.  134, 
the  complaint  was  addressed  to  "  the 
Justice  of  the  Second TtistrxcX.  of  the  court 
of  Essex,  and  purported  have  been  "  re- 


ceived and  sworn  to  before  said  court." 
The  jurat  was  signed  "  William 
Smeath,  Special  Justice  of  said  Court." 
The  record  showed  that  the  complaint 
was  received  when  the  court  was  in 
session,  and  no  reason  appearing  for 
the  special  justice  acting,  it  was  held 
that  the  conviction  in  the  superior 
court  was  improper  and  the  complaint 
was  dismissed. 

Before  Trial  Justice. — The  jurat  an- 
nexed to  the  complaint  was  signed  by 
"■'  Ichabod  N.  Luce,  Trial  Justice."  It 
was  held  that  this  signature  involved 
his  signature  as  justice  of  the  peace  and 
no  separate  designation  of  the  inferior 
oflSce  was  necessary.  Com.  v.  Mosher, 
134  Mass. 226. 

Figures.  —  It  is  the  uniform  practice 
in  jurats  to  state  the  year  in  figures. 
Com.  V.  Keefe,  7  Gray  (Mass.)  332; 
Com.  V.  Hagarman,  10  Allen  (Mass.) 
401. 

Initials  and  Abbreviations.  — The  fact 
that  the  initals  of  the  christian  name  of 
the  justice  of  the  peace  are  given  in  the 
jurat  is  no  ground  for  arresting  judg- 
ment. Com.  V.  Melling,i4  Gray  (Mass.) 
388. 

The  abbreviation  "  Geo."  may  be  as- 
sumed to  stand  for  "  George."  Com.  v. 
Taber,  155  Mass.  5. 

Name  of  the  state  nc^A.  not  appear  in 
jurat  if  it  appears  in  the  complaint. 
Com.  V.  Desmond,  103  Mass.  445. 

Seal.  —  The  complaint  need  not  be 
under  the  seal  of  the  court.  Com.  v. 
De  Voe,  159  Mass.  loi. 

1.  Michigan.  —  How.  Anno.  Stat. 
(1882),  §  9454  et  seq. 

For  examples  of  complaints  in  this 
state  see  Forms  Nos.  2414,  3941,  3953, 
5157. 

For  formal  parts  of  affidavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 
I,  p.  548. 

Form  —  Need  not  be  in  Writing.  —  The 
law  does  not  prescribe  any  form  of  the 
criminal  complaint  in  preliminary  pro- 
ceedings. Turner  v.  People,  33  Mich. 
369.  The  complaint  need  not  be  in 
writing.  People  v.  Hare,  57  Mich.  505; 
People  V.  Lynch;  29  Mich.  278;  People 
V.  Bennett,  107  Mich.  430;  People  v. 
Berry,  107  Mich.  256;  People  v.  Bechtel, 
80  Mich.  623;  People  v.  Clark,  33  Mich. 
120;  Turner  v.  People,  33  Mich.  369. 

Stereotyped  forms  of  complaints  en- 
tirely printed,  except  as  to  names  and 
dates,  are  certainly  not  such  docu- 
ments as  ought  to  be  presented   under 


946 


Volume 


6682. 


CRIMINAL  COMPLAINTS. 


6682. 


State  of  Michigan^ ) 
County  of  ^fzy.^      J      ' 

The  complaint  on  oath  and  in  writing  of  Richard  Roe^  taken  and 
made  before  me,  Abraham  Kent^  a  justice  of  the  peace  of  the  city  of 
Bay  City,  in  said  county,  upon  the  Ji/ih  day  of  March,  \^  d.  i89*,  who 
being  duly  sworn  says*  that  heretofore,  to  wit,  on  the  second  day  of 
M.irch,  A.  D.  i9>98,  at  the  city  of  Bay  City^  in  the  county  aforesaid, 
one  John  Doe,  late  of  Bay  City,  in  the  county  oi  Bay  aforesaid,*  [with 
forje  and  armi  in  and  upon  ont-Mary  Carney,  a  female  child  of  the 
age  of  ten  years  and  more,  to  wit,  of  the  age  oi  fourteen  years,  in  the 
peace  of  the  people  of  the  state  of  Michigan  then  and  there  being, 
did  make  an  assault  with  intent  her,  the  said  Mary  Carney,  by  force 
and  against  her  will,  then  and  there  feloniously  to  ravish  and  to  car- 
nally know,  and  other  wrongs  to  her,  the  said  Mary  Carney,  then  and 
there  did,]''  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  people  of  the 
state  of  Michigan. 

Wherefore  the  sai\d  Richard  Roe  prays  that  the  sa.\d  John  Doe  may 
be  apprehended  and  held  to  answer  this  complaint,  and  further  dealt 
with  in  relation  to  the  same  as  law  and  justice  may  require. 

Richard  Roe. 

Taken,  subscribed  and  sworn  to  before  me  the  day  and  year  first 
above  written. 

Abraham  Kent,  Justice  of  the  Peace. 


a  constitutional  provision  requiring 
t  lat  no  warrant  should  issue  without 
probable  cause,  and  were  disapproved 
expressly  by  the  court  in  Matter  of 
Way,  41  Mich.  299. 

1.  Omission  of  the  name  of  county  from 
the  venue  in  a  complaint  made  to  a 
justice  of  the  peace  in  a  suit  for  an 
offense  beyond  his  jurisdiction  to  try, 
and  which  is  alleged  to  have  been  com- 
mitted in  said  city,  will  not  affect  the 
validity  of  the  complaint.  People  v. 
Kahler,  93  Mich.  625. 

2.  Any  person  is  entitled  to  make  a 
criminal  complaint,    i  Chit.  Crim.  L.  3. 

3.  Kagistrates  before  whom  the  com- 
plaints may  be  made  are  enumerated 
in  the  statute.  How.  Anno.  Stat.  Mich. 
(1882),  5;  9454. 

4.  Mere  Belief  is  Insufficient.  —  The 
complaint  must  set  up  the  facts  upon 
the  knowledge  of  the  complainant. 
People  V.  Heffron,  53  Mich.  527.  See 
People  V.  Hare,  57  Mich.  505;  Haskins 
V.  Ralston,  69  Mich.  63;  People  v.  Mc- 
Lean, 68  Mich.  481. 

5.  Place  of  the  conunission  of  the  offense 
must  be  stated.  People  v.  Gregory,  30 
Mich.  371;  People  v.  Millard,  53  Mich. 

63- 

6.  A  misnomer  does  not  result  from  the 
misspelling  of  the  name  of  the  accused. 


provided  it  is  idem  sonans.  People  v. 
Tisdale,  i  Dougl.  (Mich.)  59;  People 
V.  Mayworm,  5  Mich.  146. 

Occupation,  degree  or  residence  of  the 
accused  need  not  be  stated.  How. 
Anno.  Stat.  Mich.  (1882),  §  9523. 

7.  The  charging  part  of  this  complaint, 
indicated  by  the  words  and  figures  en- 
closed by  [  ],  is  taken  from  the  com- 
plaint in  People  v.  Lynch,  29  Mich.  277, 
in  which  case  the  complaint  was  ap- 
proved. See  also  supra,  note  i,  p. 
932.  For  other  precedents  of  com- 
plaints of  this  character  see  Turner  v. 
People,  33  Mich.  363;  People  v.  Lynch, 
29  Mich.  277;  Curnow  v.  Kessler, 
(Mich.  1896)  67  N.  W.  Rep.  982;  People 
V.  Bechtel,  80  Mich.  626.  The  facts 
and  circumstances  necessary  to  consti- 
tute the  offense  should  be  set  forth  with 
certainty.  Turner  v.  People,  33  Mich. 
363;  Wheaton  v.  Beecher,  49  Mich.  353. 

The  words  "the  crime  of"  were  omitted 
from  the  complaint.  No  objection  was 
made  during  the  trial  to  their  omission. 
Had  the  attention  of  the  court  been 
called  to  the  defect,  it  might  have  been 
amended,  and  for  that  reason  it  was 
held  that  after  verdict  the  omission 
must  be  disregarded.  People  v.  Suther- 
land, 104  Mich.  468,  citing  Merwin  v. 
People,  26  Mich.  305. 


947 


Volume  5. 


6683.  CRIMINAL  COMPLAINTS.  6684. 

Form  No.  6683.' 


State  of  Minnesota,      . 

'      '  ss. 


County  of  Chickasaw.  \ 

Richard  Roe,  being  first  duly  sworn*  and  examined  on  oath,  makes 
complaint  and  says,  that  John  Doe  did,  on  the  tenth  day  of  March, 
A.  D.  1 896',  at  the  town  of  New  Hampton,  in  said  county  and  state 
{Here  set  forth  the  facts  constituting  the  offense'),'^  contrary  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  state  of  Minnesota,  and  prays  that  the  said  John 
Doe  may  be  arrested  and  dealt  with  according  to  law. 

Richard  Roe.* 

Subscribed  and  sworn  to  before  me  this  fifteenth  day  of  March, 
A.  D.  i2,96. 

Abraham  Kent,^  Justice  of  the  Peace. 

Form  No.  6684.* 

The  State  of  Mississippi,  \ 
Winston  County.  ) 

Before  me,  Abraham  Kent,''  a  justice  of  the  peace  of  the  said  county, 
Richard  Roe  makes  oath  that  on  or  about  the  tenth  day  of  March, 
A.  D.  i2>98,  in  said  county,  John  Doe  did  (^Here  state  the  facts  constituting 
the  offense),^  against  the  peace  and  dignity  of  the  state  of  Mississippi. 

Richard  Roe. 
Sworn  to  and  subscribed  before  me  this  fifth  day  of  March,  iS98. 

Abraham  Kent,  J.  P. 

Statutory  offenses  should  be  described  vided    by  him.     Minn.   Slat.    (1894),  § 

with    certainty,  and    the    omission  of  7133. 

any  ingredient  of  such  an  offense  will  3.  Charging    part   of   complaint,    see 

be  fatal.     Napman  v.  People,  19  Mich,  supra,  note  i,  p.  932. 

355.  4.  Mast  be    signed    by   complainant, 

1.  Minnesota. — Stat.  (1894),  §7132  et  Minn.  Stat.  (1894),  §  7133. 

seq.  5.  To  Whom  Complaint  may  be  made.  — 

The      provision      in    the    Mmnesota  The   judges    of   the    several    courts  of 

statute  relating  to  preliminary  exami-  record  in  vacation,  as  well  as  in  term 

nations  of  persons  accused  of  crime  will  time,    and   all    justices   of   the   peace, 

authorize  a  magistrate  to  hold  the  ac-  Minn.  Stat.  (1894),  g  7132. 

cused  to  await  the  action  of  the  grand  6.  Mississippi.  — Anno.  Code  (1892),  § 

jury,  even  in  a  case  where  the  evidence  1460  et  seq.    For  form  of  affidavit  charg- 

does  not  show  that  any  higher  crime  has  ing   a   felony   see    Miss.    Anno.    Code 

been   committed  than   one  over  which  (1892),  §  1491. 

the    justice    himself  has    jurisdiction.  Mast  be  in  Writing. — Wilcox  w.  Will- 
provided  under  the  law  the  grand  jury  iamson,  61  Miss.  310. 
may  find  an  indictment  for  the  offense.  For  formal  parts  of  affidavits, generally, 
State  V.  Sargent,  (Minn.  1898)  73  N.  W.  consult  the  title  Affidavits,  vol.  i,  p. 
Rep.  626.  548. 

For  example  of  complaint  in  this  state  7.  Conservators  of  the  peace  are  enume- 

see  Form  No.  3954.  rated  in  the  statute.    Miss.  Anno.  Code 

For  formal  parts  of  affidavits,  gener-  (1892^,  i5  1460. 

ally,  consult  the  title  Affidavits,  vol.  8.  May  charge  the  accased  with  having 

I,  p.  548.  committed  an  offense  or  being  suspected 

Mast  be  redaced  to  writing   by    the  of  an  offense.     Miss.  Anno.  Code  (1892), 

magistrate   receiving  it.      Minn.  Stat.  ^  1461. 

(1894),  ^  7133.  Charging  part  of  complaint,  see  supra, 

2.  Complainant  shall  be  sworn  and  ex-  note  i,  p.  932. 
amined  on  oath,  and  any  witness  pro- 

948  Volume  5. 


6685.  CRIMINAL  COMPLAINTS.  6686. 

Form  No.  6685.' 

State  of  Missouri,  \  Before  Abraham  Kent^  a  Justice  of  the  Peace 

County  of  Barton,  j      "     in  and  for  said  county  and  state. 

Richard  Roe.,  first  being  duly  sworn^  according  to  law,  deposes  and 
says :  That  on  the  tenth  day  of  March.,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety-eight.,  at  and  in  the  said  county  of 
Barton  and  state  of  Missouri  aforesaid,  one  John  Doe^  did  then  and 
there  commit  di  felony,^  as  follows,  to  mt,{Ifere  state  fully  and  clearly 
the  facts  constituting  the  offense  charged),^  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  state. 

Richard  Roe. 

Sworn  to  and  subscribed  before  me  in  the  county  aforesaid  this 
tenth  day  of  March,  i898. 

Abraham  Kent,  Justice  of  the  Peace.^ 

Form  No.  6686.* 

Th,  State  ofMoniana,  plaintiff,  \  Complaint  for  Burglary  in  the  first 
John  Doe,  defendant.  )  *      * 


State  of  Montana, 

'       '^  ss. 


County  of  Missoula.  \ 

Upon  Xkivs,  fifth  day  of  March,  a,  d.  \%98,  before  me,  Abraham  Kent., 
a  justice  of  the  peace'  within  and  for  the  township  of  Hell  Gate,  in  the 
county  of  Missoula,  state  of  Montana,  personally  appeared  Richara 
Roe,  who  upon  being  duly  examined  and  sworn,  upon  oath  deposes 
and  says  {continuing  and  concluding  as  in  Form  No.  666S).^^ 

1.  Missouri.  —  Rev.  Stat.  (1889),  §§  is  presented.  States.  Mullen,  52  Mo. 
400Q.  4021.  430.     But  the  complaint   must  be  veri- 

For  formal    parts    of  affidavits,   gen-  fied.     State  v.  Lewis,  70  Mo.  App.  40. 
erally,    consult   the    title  Affidavits,        %.  Montana.  —  Pen.    Code  (1895),  $5§ 

vol.  I,  p.  548.  1372,  1590,  et  seq. 

ghoald  be  in  Writing.  —  Mo.  Rev.  Stat.         North   Dakota.  —  Rev.  Codes  (1895), 

(1889),  §4021.  §§7881,7886. 

The  same  technical  accnracy  is  not  re-         Utah.  —  Rev.   Stat.   (1898),   §§4604, 

quired  in  a  complaint  as  in  an  informa-  4610. 
tion.     State  v.  Morse,  55  Mo.  App.  332.         9.  Magistrates  before  whom  complaint 

Not  nsingthestatntorywords but  words  may   be   made  are   enumerated   in  the 

of  equivalent  import  may  be  sufficient,  statute. 
State  V.  Morse,  55  Mo.  App.  332.  Montana.  —  Pen.  Code  (1895),  §  1373. 

2.  Magistrates  who  may  issue  crimi-  North  Dakota. — Rev.  Codes  (1895), 
nal    processes   are  enumerated   in  the  §§  7758,  7885. 

statute.     Mo.   Rev.  Stat.  (1889),  §  4008.  Utah.  —  Rev.  Stat.  (1898),  §4608. 

3.  Must  be  on  Oath.  Mo.  Rev.  Stat.  10.  Charging  part  of  complaint,  see 
(1889),   §4021.  supra,  note  I,  p.  932. 

4.  Name  of  the  person  accused  must  be  Name  ofperson  aocnsed,  if  known,  must 
stated.     Mo.  Rev.  Stat.  (1889),  554021.  be  stated. 

6.  That    a  felony  has  been   committed  Montana.  —  Pen.  Code  (1895),  §  1590. 

must  be  stated.     Mo.  Rev.  Stat.  (1889),  North   Dakota.  —  Rev.  Codes  (1895), 

§4021.  §7886. 

6.  Charging  part    of   complaint,    see  Utah.  —  Rev.  Stat.  (1898),  §4610. 
supra,  note  I,  p.  932.  Cotmty  in    which   offense   was   com- 

7.  The  oath  need  not  be  administered  by  mitted  must  be  stated. 

the  magistrate  to  whom  the  complaint        Montana.  —  Pen.  Code.  (1895),  §  1590. 

948  Volume  5. 


6687. 


CRIMINAL  COMPLAINTS. 


6687. 


ss. 


Form  No.  6687.' 

The  State  of  Nebraska  ) 

against  V  Complaint  for  {Here  name  the  offense).^ 

John  Doe.  ) 

The  State  of  Nebraska,  ) 
County  of  Colfax.  \ 

The  complaint  and  information  of  Richard  Roe,  of  the  county  afore- 
said, made  in  the  name  of  the  state  of  Nebraska,  before  me,  the 
undersigned,  a  justice  of  the  peace  ^  within  and  for  said  county,  this 
fifth  day  of  March,  a.  d.  iS98,  who  being  duly  sworn  on  his  oath* 
says  thsit  John  Doe, ^  on  the  second  da.y  of  March,  jS98,  in  the  county 
oiColfax  aforesaid  then  and  there  being,  did  then  and  there  {Here 
state  the  facts  constituting  the  offense  charged'),^  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  people  of  the  state  of  Nebraska. 

Richard  Roe.'' 

Subscribed  in  my  presence  and  sworn  to  before  me  this  fifth  day 
oi  March,  iS98.  Abraham  ICent,  ]ust\ceoi  the  Feace.^ 


North  Dakota.  —  Rev.  Codes,  (1895), 
§  7886. 

Utah.  —  Rev.  Stat.  (1898),  §  4610. 

General  name  of  offense  must  be  stated. 

Montana.  —  Pen.  Code  (1895),  §  1590. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  7886. 

Utah.  —  Rev.  Stat.  (1898),  §4610. 

Name  of  person  against  whom,  or 
against  whose  property,  the  offense  was 
committed  must  be  stated,  if  known. 

Montana.  —  Pen.   Code  (1895),  §  1590. 

North  Dakota.  —  Rev.  Codes  (1895), 
§7886. 

f//rt/i.  —  Rev.  Stat.  (1898),  ^4610. 

Must  be  subscribed  and  sworn  to  by  com- 
plainant. 

Montana.  —  Pen.  Code  (1895),  §1590. 

North  Dakota.  — Rev.  Codes  {1895), 
§  7886. 

Utah.  —  Rev.  Stat.  (1898),  §  4610. 

1.  Nebraska.  —  Comp.  Stat.  (1897), 
§  7010. 

A  complaint  in  writing  signed  by  the 
complainant  and  sworn  to  before  the 
clerk  of  the  district  court  within  his 
jurisdiction,  and  filed  in  the  office  of  the 
justice  of  the  peace,  would  be  sufficient 
to  require  him  to  issue  a  warrant 
thereon.      State    v.    Lauver,    26    Neb. 

757. 

For  formal  parts  of  affidavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 
I,  p.  548. 

For  precedents  of  complaints  of  this 
character  held  to  be  sufficient  see  Ven- 
num  V.  Huston,  38  Neb.  300;  State  v. 
Lauver,  26  Neb.  757;  Haunstine  v. 
State,  31  Neb.  112;  Hill  v.  State,  42 
Neb.  503. 


Must  be  in  Writingr. —  Neb.  Comp. 
Stat.  (1897),  §  7010. 

2.  The  title  is  no  part  of  the  com- 
plaint.    White  V.  State,  28  Neb.  341. 

3.  Magistrates  to  whom  complaints 
are  made  are  enumerated  in  the  statute. 
Neb.  Comp.  Stat.  (1897),  §  6972. 

The  complaint  must  be  made  before 
the  proper  magistrate  in  order  to  give 
jurisdiction  to  make  a  preliminary  ex- 
amination. White  z/.  State,  28  Neb.  341. 

4.  Must  be  upon  Oath.  —  Neb.  Comp. 
Stat.  (1897),  §  7010;  White  v.  State,  28 
Neb.   341. 

5.  Must  charge  some  person  with  the 
commission  of  an  offense  against  the 
laws  of  the  state.  Neb.  Comp.  Stat. 
(1897),  §  7010. 

6.  Must  charge  explicitly  all  that  is 
essential  to  constitute  the  offense. 
Smith  V.  State,  21  Neb.  556. 

In  Brown  v.  State,  16  Neb.  659,  a 
complaint  charging  the  commission  of 
a  crime  in  positive  terms  was  held  not 
to  be  invalid  because  affiant  added  that 
he  "  verily  believes  defendant  guilty." 

As  to  the  charging  part  of  the  com- 
plaint, see  Ex  p.  Eads,  17  Neb.  146; 
Yates  V.  Kinney,  19  Neb.  283.  See 
also  supra,  note  i,  p.  932. 

7.  Must  be  signed  by  complainant. 
Neb.  Comp.  Stat.  (1897),  §  7010. 

8.  Clerk  of  court  may  administer  oath. 
State  V.  Lauver,  26  Neb.  757. 

Nevada.  —  The  complaint  in  prelimi- 
nary proceedings  in  criminal  cases  in 
this  state  is  provided  for  under  statutes 
having  provisions  identical  with  those 
in  Arizona.  See  supra.  Form  No.  6663, 
and  notes  thereto. 


950 


Volume  5. 


6688.  CRIMINAL  COMPLAINTS.  6689. 

Form  No.  6  688.' 
To  Abraham  Kent,  Justice  of  the  Peace^  for  the  County  of  Hillsborough: 

Richard  Roe  of  Hillsborough  in  the  county  of  Hillsborough,  com- 
plains that  John  Doe"^  of  Hillsborough  in  the  county  aforesaid,  on  the 
second  day  of  March,  in  the  year  of  our  Lord  one  4;housand  eight 
hundred  and  ninety-eight,  at  Hillsborough  aforesaid,  in  the  county  of 
Hillsborongh,  aforesaid,  with  force  and  arms  (^Here  state  off ense  charged 
and  the  facts  constituting  the  same\^  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  and  dignity 
of  the  state. 

Wherefore  the  said  Richard  Roe  prays  that  the  said  John  Doe  may 
be  held  to  answer  this  complaint,  and  that  justice  may  be  done  in 
the  premises. 

Richard  Roe.  ^ 

Hillsborough,  ss.  March  5th,  jS98,  personally  appeared  Richard 
Roe,  and  made  oath  that  the  above  complaint  by  him  subscribed  is 
in  his  belief  true.* 

Before  me,  Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6689.^ 

The  State  of  New  Jersey,  \ 
County  of  Bergen.  f  ^^* 

Richard  Roe,  of  the  township  of  Blank,  in  the  county  of  Bergen  and 
state  of  New  Jersey,  upon  his  oath  complains  that  on  the  second  day 
of  March,  A.  d.  x2>98,  at  said  township  of  Blank,  in  the  county  and  state 
aforesaid,  John  Doe  did  (^Here  state  facts  constituting  the  offense 
charged)  ;  wherefore  the  said  Richard  Roe  prays  that  the  said  John 
Doe  may  be  apprehended  and  held  to  answer  to  this  complaint,  and 
dealt  with  as  law  and  justice  may  require. 

Richard  Roe. 

Sworn  and  subscribed  to  th\s  fifth  day  of  March,  iS98. 

Before  me,  Abraham  Kent,  Justice  of  the  Peace.* 

1.  New  Hampshire.  —  Pub.  Stat.  7.  Newfersey.  —  Gen.  Stat.  (1895),  p. 
(1891),  c.  248  et  seq.  III9,  §  I  et  seq.;  p.  I200,  §  II  et  seq. 

2.  Most  be  addressed  to  a  justice  of  the  Knst  be  in  Writing.  —  Sute  v.  Quigg, 
peace  or  to  a  police  court.     N.  H.  Pub.  13  N.  J.  L.  293. 

Stat.  (1891),  c.  248,  §9.  '  8.  Magistrates  to  whom  the  complaint 

3.  Kame  or  description  of  accused  must  may  be  made  are  enumerated  in  the 
be  stated.  N.  H.  Pub.  Stat.  (1891),  c.  statute.  N.  J.  Gtn.  Stat.  (1895),  p. 
248,  $  9.  1119,  §  I. 

4.  Kame  and  description  of  offense  must  Jorat.  —  In  State  v.  Perth  Amboy,  51 
be  given.  N.  H.  Pub.  Stat.  (1891),  c.  N.J.  L.  406,  it  was  held  that  the  char- 
248,  §  9.  ter  of    the   city,  the    violation  of   the 

Charging  part  of  complaint,  see  .fw/ra,  ordinance    of    which    constituted    the 

note  I,  p.  932.  ground  of  complaint,  did   not  require 

Distinct  and  separate  offenses  must  not  the  oath  and  attestation  to  the  com- 
be included  in  one  count  of  the  same  plaint  to  be  made  in  writing  prior  to  the 
complaint.  State  v.  Fowler,  28  N.  H.  arrest,  and  that  consequently  the  jurat 
184.  need  not  have  been  signed  by  the  police 

6.  Most  be  signed  by  complainant.   N.  magistrate  until  the  return   day  of  the 

H.  Pub.  Stat.  (1891),  c.  248,  §9.  summons. 

6.  Must  be  under  Oatb.     N.   H.    Pub.        New    Mexico.  —  The    complaint     in 

Stat.  (1891),  c.  248,  §  9.  writing  in  preliminary   proceedings  in 

951  Volume  5. 


6690. 


CRIMINAL  COMPLAINTS. 


6691. 


Form  No.  6690.^ 

To  Abraham  Kent,  one  of  the  Justices  of  the  Peace  in  and  for  the 
county  of  Suffolk,  state  of  New  York?" 

Suffolk,  ss. 

Richard  Roe,  of  the  toum  of  Huntington,  in  the  county  of  Suffolk, 
state  of  New  York,  being  duly  sworn  and  examined,  makes  complaint 
and  on  oath^  says:  {Continuing  and coficluding  as  in  Form  No.  6663.) 


Form  No.  6691.* 


this  state  is  provided  for  by  JVe7v  Mex- 
ico Compiled  Laws  (1884),  §  2448,  and 
seems  to  be  in  all  material  respects 
similar  to  the  complaint  provided  for 
in  such  proceedings  under  the  Arizona 
statute.  See  supra.  Form  No.  6663, 
and  notes  thereto. 

1.  A^ew  York.  —  Cook's  Code  Crim. 
Proc.  (1891),  §  lif^et  scq.  The  statutory 
provisions  in  New  York  are  identical 
with  those  \x\.  Arizona,  Consult  Form 
No.  6663,  supra,  and  notes  thereto. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

For  example  of  such  complaint  in  this 
state  see  Form  No.  2394. 

The  same  technicality  and  strictness  is 
not  called  for  with  respect  to  the  com- 
plaint as  is  necessary  in  the  case  of  an 
indictment.  People  v.  Robertson,  3 
Wheel.  Cr.  Cas.  (N.  Y.  Gen.  Sess.)  180. 

Need  not  be  reduced  to  writing  prior  to 
the  issuance  of  warrant.  Payne  v. 
Barnes,  5  Barb.  (N.  Y.)465;  Matter  of 
Boswell,  34  How.  Pr.  (N.  Y.  Ct.  Sess.) 
347;  Sleight  V.  Ogle,  4  E.  D.  Smith  (N. 
Y.)  445.  Compare,  however.  People  v. 
Fuerst,  13  N.  Y.  Misc.  Rep.  (Queens 
County  Ct  Sess.)  304. 

2.  KLagistrates  to  whom  the  complaint 
may  be  made  are  enumerated  in  the 
statute.  Cook's  Code  Crim.  Proc.  (N. 
Y.),  ^  147. 

3.  Made  on  information  and  belief, 
whether  by  an  officer  or  other  person,  is 
insufficient.  Matter  of  Blum,  g  Misc. 
Rep.  (N.  Y.  Supreme  Ct.)  571.  The 
information  in  this  case  concluded  as 
follows:  "Deponent  further  says  that 
he  makes  this  complaint  upon  informa- 
tion and  belief  as  a  police  officer  of  the 
city  of  Brooklyn." 

Precedent. —  In  Pratt  v.  Bogardus,  49 
Barb.  (N.  Y.)9i,  the  complaint  was  as 
follows:  "^  Albany  County,  ss:  Stephen 
D.  Van  Natta,  of  the  toivn  of  Knox,  in 
the  said  county,  being  duly  sworn  and 


examined,  makes  complaint  and  says, 
that  on  or  about  they^^j/day  oijune, 
1^64,  at  the  town  of  Knox,  aforesaid, 
Ferrand  T.  Pratt  did  designedly,  and 
by  false  pretense,  obtain  from  him  one 
sulky,  of  the  value  of  %jo,  by  falsely 
stating  and  representing  to  him  that  his 
sulky  was  hard  to  ride  in,  and  that  he 
was  going  to  Albany  city,  and  that 
he  would  leave  his  sulky  with  him,  the 
said  Stephen  D.  Van  Natta,  and  would 
return  it  the  next  week,  whereas,  in 
fact,  he  did  not  so  return  it,  but  took  it 
to  Albany  and  had  the  same  shipped  to 
Fort  Plain,  with  intent  to  cheat  and 
defraud  the  said  Stephen  D.  Van  Natta. 

Stephen  D.  Van  Natta. 
Sworn  and  subscribed  before  me  ) 
this  i6th  day  oljuly,  1864.        \ 
E.  N.  Bogardus, 

Justice  of  the  Peace." 

It  was  held  that  this  complaint  was 
sufficient  to  call  upon  the  justice  to  ex- 
ercise his  judgment  in  determining  the 
propriety  of  issuing  a  warrant,  and, 
having  done  so  in  good  faith,  to  protect 
him  with  respect  thereto. 

4.  North  Carolina.  —  Code    (1893),  j5 

II33- 

Complaint  under  oath  is  necessary  to 

the  issuance  of  the  warrant  unless  the 
offense  had  beep  committed  super  visun:. 
Welch  V.  Scott,  5  Ired.  L.  (27  N.  Car.) 
72. 

For  formal  parts  of  affidavits,  gener- 
ally, consult  the  title  Affidavits,  vol. 
I,  p.  548. 

For  precedents  of  complaints  before  a 
justice  see  State  v.  Griffis,  117  N.  Car. 
709;  State  V.  Taylor,  118  N.  Car.  1262; 
State  V.  Norman,  no  N.  Car.  485;  Dur- 
ham V.  Jones,  119  N.  Car.  268. 

Complaint  may  be  amended  in  the  dis- 
cretion of  the  justice.  N.  Car.  Code 
(1883),  ^  908;  State  V.  Norman,  no  N. 
Car.  484.  And  this  discretionary  power 
is  not  reviewable  on  appeal.  State  v. 
Taylor,  118  N.  Car.  1262. 


962 


Volume  5. 


6692.  CRIMINAL  COMPLAINTS.  6693. 

State  of  North  Carolina,  )       t,  r         al     i         ^^  •       • 

Mecklenburg  County,        \      ^^^^^^  Abraham  Kent  a  justice  of  the 
Dewese  Township.  -)  peace. 

The  State  of  North  Carolina 
against 
John  Doe. 
North  Carolina,  ) 

Mecklenburg  County,  f    ^* 

Richard  Roe,  of  Davidson,  in  the  county  of  Mecklenburg,  state  of 
North  Carolina,  being  duly  sworn  on  this  fifth  day  of  March,  jS98, 
upon  oath  deooses  and  says:  (Continuing  and  concluding  as  in  Form 
No.  6663.) 

Form  No.  6692.' 

The  State 0/ North  Dakota,  p\a.\niiS,  )^        1  •   .  r       «       ,         •     ., 
against  t  Complaint  for  Burglary  tn  the 

John  Doe,  deiend^nt.  )      ^i^st  Degree. 

The  State  of  North  Dakota,  \ 
County  of  Cass.  \  ^^' 

Upon  \}!\\%  fifth  day  of  March,  a.  d.  \W8,  before  me,  Abraham  Kent., 
a  justice  of  the  peace^  within  and  for  the  county  of  Cass,  state  of 
North  Dakota,  personally  appeared  Richard  Roe,  who  being  duly 
examined  and  sworn  upon  oath  deposes  and  says  :  {Continuity  and 
concluding  as  in  Form  No.  6663.) 

Form  No.  6693.* 

(Bates'  Anno.  Stat.  Ohio  (1897),  §  7134.) 
The  State  of  Ohio,  Vinton  County,  ss. 

1.  Magistrates  to  whom  the  complaint  a  criminal  complaint,  filed  against  the 
may  be  made  are  enumerated  in  the  accused  with  an  examining  magistrate, 
statute.     N.  Car.  Code  (1883),  §  1132.        after   alleging   time  and  place,  desig- 

Miut  conclude  "against  the  form  of  nated  the  offense  in  general  language, 

the  statute."     State  v.   Lowder,  85  N.  giving  its  name,  and  in  addition  thereto 

Car.  565.  set  out  such  of  the  facts  and  circum- 

2,  North  Dakota.  —  Rev.  Codes  (1895),  stances  constituting  the  offense  as 
§§  7881,  7886,  being  similar  to,  if  not  fairly  apprises  a  person  of  average  in- 
identical  with,  the  statutory  provisions  telligence  of  the  nature  of  the  accusa- 
relating  to  criminal  complaints  in  pre-  tion  against  him,  it  was  held  sufficient 
liminary  proceedings  in  iVAjwteMrt.  See  to  authorize  a  state's  attorney  to  file  an 
Form  No.  6686,  supra,  and  notes  information  against  the  accused  for  the 
thereto.  same  offense.     State   v.    Barnes,   3  N. 

For  formal  parts  of  affidavits,  gener-  Dak.  131. 

ally,   consult  the  title  Affidavits,  vol.  8.  Magistrates  before  whom  criminal 

I,  p.  548.  complaints   may  be   made  are  enume- 

For  a  precedent  of  a  complaint  of  this  rated  in    the  statute.       N.   Dak.    Rev. 

character   see   State    v.    Barnes,    3    N.  Codes  (1895),  §§  7758,  7885. 

Dak.  131.  4.  Ohio.  —  Bates' Anno.  Stat.  (1897;, 

The  same  technicality  and  care  neces-  §  7133  et  seq. 

sary  in  framing  indictments  and  infor-  Kansas.  —  2  Gen.  Sut.  (1897),  p.  402, 

mations  is  not  necessary  in  drawing  a  §  35.     See  supra.  Form  No.  6676,  and 

complaint.     State  v.  Barnes,  3  N.  Dak.  notes  thereto. 

131.  Oklahoma.  —  Stat.  (1893),  §4958.     See 

Under  §  8,  c.  71,  Laws  of  1890,  where  infra.  Form  No.  6694,  and  notes  thereto. 

953  Volume  5. 


6694.  CRIMINAL  COMPLAINTS.  6695. 

Before  me,  Abraham  Kent}  [a  justice  of  the  peace  in  and  for  said 
county,]^  personally  came  ^/V^d!r^j!?^^,  who  being  duly  sworn  accord- 
ing to  law,  deposes  and  says,  that  on  or  about  the  second  day  of 
March,  i898,  at  the  county  of  Vinton,  ov^t  John  Doe  (^Here  describe 
the  offense  committed  as  nearly  according  to  the  nature  thereof  as  the  case 
will  admit')? 

Richard  Roe. 
Sworn  to  and  subscribed  before  me  \.)x\%  fifth  day  oi  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6694.^ 

Territory  of  Oklahoma,  Oklahoma  County,  ss. 

Richard  Roe,  being  duly  sworn,  on  oath  says,  that  on  the  second  day 
of  March,  a.  d.  1W8,  in  the  county  of  Oklahoma  and  territory  of  Okla- 
homa, John  Doe  did  {continuing  and  concluding  as  in  Form  No.  6676). 

Form  No.  6695.* 

Before  Abraham  Kent,  Justice  of  the  Peace  within  and  for  Blank 
Precinct,  Multnomah  County,  State  of  Oregon.^ 
The  State  of  Oregon,  plaintiff,  \ 

against  V  Complaint  for  Burglary. 

John  Doe,  defendant.  ) 

John  Doe  is  accused  by  Richard  Roe  by  this  complaint  of  the  crime 
of  {continuing  and  concluding  as  in  Form  No.  6716,  charging  an  offense 
not  within  the  jurisdiction  of  the  justice  of  the  peace). 

Wyoming.  —  Rev.  Stat.  (1887),  §  3181,  Kansas.  — 2  Gen.  Stat.  (1897),  p.  402, 

See  infra.  Form   No.  6707,  and  notes  §  35.     See   supra.  Form   No.  6676,  and 

thereto.  notes  thereto. 

For  formal  parts  of  affidavits,  gener-  Ohio. — Bates'    Anno.  Stat.  (1897),  § 

ally,  consult  the  title  Affidavits,  vol.  r,  •ji'iZ  et  seq.     See  supra.  Form  No.  6693, 

p.  548.  and  notes  thereto. 

For  another  form  of  an  affidavit  which  IVyoming.  —  Rev.  Stat.  (1887),  §  3x81. 

may  be  varied  to  suit  the  nature  of  any  See  infra.   Form   No.  6707,   and  notes 

particular  case  see  Bates'  Anno.  Stat,  thereto. 

Ohio  (1897),  §  7135.  For  the  formal  parts  of  affidavits,  gen- 

For   examples   of  complaints   in  this  erally,  consult  the  title  Affidavits,  vol. 

state  see  Forms  Nos.  2415,  3945.  I,  p.  548. 

Complaint  under  oath  is  necessary  to  Uagistrates   to   whom  the  complaint 

the  issuance  of  the  warrant  unless  the  may    be  made  are  enumerated  in  the 

offense    had     been     committed     super  statutes.     Okla.  Stat.  (1893),  §  4957. 

visum.     Eichenlaub  v.  State,  36   Ohio  5.  Or^-^t^w.  — Hill's  Anno.  Laws  (i8g2), 

St.  142.  §§  1546,   1549,  being  similar  to,  if  not 

May  be  upon  Affirmation. — Eichenlaub  identical  with,  the  provisions  relating 

V.  State,  36  Ohio  St.  142.  to  criminal  complaints  in  preliminary 

1.  Magistrates  to  whom  complaints  of  proceedings  in  Arizona.  See  supra, 
this  character  may  be  made  are  enu-  Form  No.  6663,  and  annotations  thereto, 
merated  in  the  statute.  Bates'  Anno.  For  the  formal  parts  of  affidavits,  gen- 
Stat.  Ohio  (1897),  §  7106.  erally,  consult  the  title  Affidavits,  vol. 

2.  The  words  in  [  ]  do  not  appear  in  I,  p.  548. 

the  form  set  out  in  the  statute.  6.  Magistrates  to  whom  complaints  of 

3.  Charging  i>art  of  complaint,  see  this  character  may  be  made  are  enu- 
supra,  note  i,  p.  932.  merated  in  the  statute.     Hill's  Anno. 

4.  Oklahoma.  —  Stat.   (1893),    §  4958,  Laws  Oregon  (1892),  §  1548. 
and  notes  thereto. 

954  Volume  5. 


6696. 


CRIMINAL  COMPLAINTS. 


6697. 


Form  No.  6696.' 
Chester  County,  ss. 

Personally  appeared  before  me,  one  of  the  justices  of  the  peace  in 
and  for  the  county  aforesaid,  this////4  day  of  March,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  ninety-eight,  Richard  Roe,  of 
the  township  of  Blank,  in  said  county  of  Chester,  and  state  of 
Pennsylvania,  who  being  first  duly  sworn  according  to  law  on  oath 
deposes  and  says  that  on  the  second  ddiy  of  March,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-eight,  at  the  township  of 
Blank  aforesaid,  in  the  county  and  state  aforesaid, /<7^«  Doe  did 
i^Here  state  tht  facts  constituting  the  offense  charged),^  [contrary  to  the 
act  of  assembly  in  such  case  made  and  provided.]^ 

Richard  Roe. 

Sworn  and  subscribed  to  before  me  this  fifth  day  of  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6697.* 
(R.  I.  Gen.  Laws  (1896),  c.  102,  §  22.) 
'Yo  John  Marshall,  Esquire,  justice  (or  clerk,  as  the  case  may  be) 
of  the  district  court  of  the  sixth  judicial  district,*  Richard  Roe,  chief  of 
the  police  (or  special  constable,  or  other  person,  as  the  case  may  be) 
of  the  town  of  North  Providence,  on  oath  complains  in  the  name  and 
behalf  of  the  state,  that  at  said  North  Providence^  on  the  j(rf^«</day  of 

1.  Pennsylvania.  —  Complaint  is  the 
name  used  in  criminal  proceedings  to 
designate  the  allegation  made  to  the 
proper  officer  that  some  person,  whether 
known  or  unknown,  has  been  guilty  of 
the  designated  offense,  and  a  request 
that  the  offender  may  be  punished. 
The  complaint  should  be  made  on  oath 
or  affirmation  and  reduced  to  writing 
by  the  magistrate.  It  should  be  cor- 
rectly dated,  should  state  the  name  of 
the  place  where  it  is  taken,  the  name 
and  style  of  the  informant,  the  name  of 
the  magistrate,  and,  if  possible,  the 
name  of  the  offender,  the  time  of  the 
commission  of  the  offense,  a  descrip- 
tion of  the  offense,  and  the  place  where 
the  offense  was  committed.  Grayd. 
Forms  (1845*,  p.  189.  Compare  Form 
No.  6680,  supra,  and  notes  thereto. 

For  formal  parts  of  affidavits,  generally, 
consult  the  title  Affidavits,  vol.  i, 
p.  548. 

Complaint  under  oath  is  necessary  to  the 
issuance  of  the  warrant,  unless  the 
offense  had  been  committed  super 
visum.  Conner  v.  Com.,  3  Binn.  (Pa.) 
42. 

2.  Charging  part  of  complaint,  see 
supra,  note  i,  p.  932. 

3.  Instead  of  the  words  in  [  ]  insert 
"against  the  peace  and  dignity  of  the 
Commonwealth  of  Pennsylvania,"  if 
the  offense  is  a  common-law  crime. 


4.  Rhode  Island. —  Gen.  Laws  (1896), 
c.  229. 

For  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

Most  be  Bednced  to  Writing.  —  R.  I. 
Gen.  Laws  (1896),  c.  229,  §  10. 

A  justice  or  clerk  of  the  district  court 
may,  by  an  amanuensis,  reduce  the 
complaint  to  writing.  The  work  be- 
comes that  of  the  justice,  or  the  clerk, 
as  the  case  may  be,  when  he  swears 
the  complainant  and  issues  the  war- 
rant.    State  V.  Guinness,  16  R.  I.  401. 

6.  Magistrates  to  whom  the  complaint 
may  be  made  are  enumerated  in  the 
statute.     R.  I.  Gen.  Stat.  (1896),  c.  229. 

A  criminal  complaint  beginning  thus. 
^' To  James  IV.  Blackwood,  Esquire, 
Justice  of  the  District  Court  of  the 
Sixth  Judicial  District,"  the  jurat  to 
which  shows  that  it  was  subscribed 
and  sworn  to  before  William  B.  Beach, 
justice  of  the  district  court  of  the  sixth 
judicial  district,  was  held  to  be  not 
fatally  defective,  as  the  court  might 
take  judicial  notice  that  William  B. 
Beach  was  at  the  time  of  the  date  of 
the  complaint  justice  of  the  district 
court  of  the  sixth  judicial  district.  State 
V.  Wright,  16  R.  I.  518. 

6.  An  allegation  of  plaoe,  using  the 
words  "  at  Tiverton,  in  the  county  of 
Newport,"   raises  the  necessary  infer- 


955 


Volume  5. 


6698.  CRIMINAL  COMPLAINTS.  6699. 

March,  A.  D.  1 895,  with  force  and  arms,  John  Doe  of  said  North  Proin- 
derue  i^Here  state  fully  the  facts  constituting  the  offense  chargecf),"^  against 
the  statute,  and  the  peace  and  dignity  of  the  state.  Wherefore,  he 
prays  advice,  and  that  process  may  issue,  and  that  said  respondent 
may  be  apprehended  and  held  to  answer  to  this  complaint,  and  be 
further  dealt  with  relative  to  the  same  according  to  law. 

Richard  Roe.^ 

Dated  at  North  Providence,  this  fifth  day  of  March,  \W8. 

Providence,  sc. 

In  North  Proindence  in  said  county  on  this  fifth  day  of  March,  iS98, 
before  me  personally  appeared  Richard  Roe  and  made  oath  that  the 
statements  made  in  the  complaint  by  him  above  subscribed  are  true. 

Abraham  Kent,  Justice  of  the  Peace, ^ 


t  ss. 


Form  No.  6698. 

The  State  of  South  Carolina, 
County  of  Sumter. 

Personally  appeared  before  me,  Abraham  Kent,  one  of  the  magis- 
trates *  within  and  for  the  county  of  Sumter,  state  of  South  Carolina, 
th\s  fifth  day  of  March,  iS98,  Richard  Roe,  of  Sumter,  in  said  county 
and  state,  who  being  duly  sworn  on  oath*  complains  and  says:  (^Con- 
tinuing and  concluding  as  in  Form  No.  6663.  y 

Form  No.  6699.' 

The  State  of  South  Dakota,  plaintiff,  \  ^   c  *•       y»       7        •    ^1. 

against  \  I^fof^^ation/^r  Burglary  tn  the 

John  Doe,  defendant,  )  * 

The  State  of  South  Dakota,  \ 

r  SS 

County  of  Hughes.  \ 

Upon  this7?/"M  day  oi  March,  a.  d.  \W8,  before  me,  Abraham  Kent, 

ence  that  the  town  of  Tiverton  is  meant,  of  the  offense.     A  sworn  information, 

State  V.  Lake,  16  R.  I.  511.  setting  forth  the  charge  "  plainly  and 

1,  Charging  part  of  complaint,  see  substantially,"  so  that  the  accused 
supra,  note  i,  p.  932.  might   understand    the    nature   of   the 

2,  Mtist  be  signed  by  the  complainant,  offense,  seems  to  have  been  only  what 
R.  I.  Gen.  Laws  U896),  c.  229,  §  10.  was  intended  by  the  statute,     McCon- 

3,  Verification,  —  Complainant   must  nell  v.  Kennedy,   29   S.   Car.   180;  2  S. 
be  examined   under  oath.     R.  L  Gen,  Car.  Rev.  Stat,  (1893),  p.  268.  §  19. 
Laws  (1S96),  c.  229,  §  10.  May  be  amended  at  any  time  before 

4,  South  Carolina.  —  2  Rev.  Stat,  trial.  2  S.  Car.  Rev.  Stat.  (1893),  p.  268, 
(1893).  p.  268,  §  19.  §  19. 

For  the  formal  parts  of  affidavits,  gen-  Previous  affidavit  and  warrant  are  not 

erally,    consult    the    title    Affidavits,  necessary  in  order  that  the  state  solici- 

vol.   I,  p.  548.  tor    may   present  a    bill   to    the  grand 

5,  Magistrates  to  whom  complaints  jury.  State  z/.  Bowman,  43  S.  Car.  108. 
may  be  made  are  enumerated  in  the  Need  not  conclude  "  against  the  form 
statute.  2  S,  Car,  Rev.  Stat.  (1893),  c.  of  the  statute."  State  v.  Brown,  14  S. 
IL  Car.  383. 

6,  Must  be  under  Oath. —  2   S.    Car,  8,  South  Dakota. —  Dak.  Comp.  Laws 
Rev.   Stat,  (1893),  p.  268,  §  19;  State  v.  (1887),  §§  7117,  7120  <>/  seq. 
Wimbush,  9  S,  Car.  309.  For  formal  parts  of  affidavits,  gener- 

7,  No  particular  formality  or  technical  ally,  see  the  title  Affidavits,  vol,  i, 
accuracy  is  necessary  in  the  statement  p.  548. 

956  Volume  5, 


6700. 


CRIMINAL  COMPLAINTS. 


6701. 


a  justice  of  the  peace  ^  within  and  for  the  county  oi  Hughes,  state 
of  South  Dakota,  personally  appeared  Richard  Roe,  who  being  duly 
examined  and  sworn  upon  oath^  deposes  and  says:  {Continuing and 
concluding  as  in  Form  No.  6663. ) 

Form  No.  6700.* 
State  of  Tennessee,  Maury  County. 

Personally  appeared  before  me,  Abraham  Kent,  a  justice  of  the 
peace*  within  and  for  the  said  county  of  Maury,  this  fifth  day  of 
March,  iS98,  one  Richard  Roe,  of  Columbia,  in  said  county  of  Maury ^ 
who  being  duly  sworn  according  to  law  on  oath  alleges  and  says: 
(Continuing  and  concluding  as  in  Form  No.  6663. ) 

Form  No.  6701.* 
The  State  of  Texas,  ") 
County  of  Freestone.  \ 

Before  me,  the  undersigned  authority,*  on  tKi^  fifth  day  o{  March, 
iS98,  personally  appeared  Richard Roe,"^  who,  after  being  by  me  duly 


1.  Magistrates  to  whom  information 
may  be  made  are  enumerated  in  the 
statute.  Dak.  Comp.  Laws  (1887),  § 
7119. 

2.  Host  be  verified  by  oath  or  affirma- 
tion. S.  Dak.  Comp.  Laws  (1887),  §§ 
7117,  7120  el  seq. 

3.  Tennessee. — Code  (1896),  §  6973 
et  seq.,  being  similar  to  and  in  many 
respects  identical  with  the  statutory 
provisions  relating  to  criminal  com- 
plaints in  preliminary  proceedings  in 
Alabama  and  Arizona.  See  supra.  Forms 
Nos.  6662,  6663,  and  notes  thereto. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

4.  Magistrates  to  whom  the  complaint 
may  be  made  are  enumerated  in  the 
statute.     Tenn.  Code  (1896),  §  6974. 

5.  Texas. — Code  Crim.  Proc.  (1895), 
art.  255  et  seq. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

A  complaint  is  prerequisite  to  an  infor- 
mation. Dominguez  v.  State,  (Tex. 
Crim.  App.  1896)  35  S.  W.  Rep.  973; 
White  7>.  State,  (Tex.  Crim.  App.  1896) 
35  S.  W.  Rep.  391. 

6.  Magistrates  authorized  to  issue 
criminal  processes  are  enumerated  in 
the  statute.  Tex.  Code  Crim.  Proc. 
(1895),  art.  41. 

Complaint  may  be  sworn  to  before 
the  county  attorney  or  his  assistant. 
Kelly  V.  State,  (Tex.  Crim.  App.  1896) 
38  S.  W.  Rep.  39. 


Complaint  shall  be  deemed  sufficient, 
without  regard  to  the  form,  if  it  has 
the  requisites  mentioned  in  the  statute. 
Anderson  v.  State,  34  Tex.  Crim.  Rep. 
96;  Brown  v.  State.'ii  Tex.  App.  451; 
Clark  V.  State,  23  Tex.  App.  260. 

Most  be  in  Writing.  —  Tex.  Code 
Crim.  Proc.  (1895),  art.  257. 

7.  Name  of  the  affiant  need  not  appear 
in  the  body  of  the  complaint  provided 
he  signs  it  and  swears  to  it.  Upton  v. 
State,  33  Tex.  Crim.  Rep.  231. 

In  Malz  V.  State,  (Tex.  Crim.  App. 
1896)  34  S.  W.  Rep.  267.  it  appears 
that  the  complaint  originally  read  in 
the  beginning  part  "personally  ap- 
peared before  the  undersigned  author- 
ity R.  L.  Winfrey,"  and  was  signed  and 
appears  to  have  been  sworn  to  by  Will- 
iam Jackson.  Upon  motion  to  quash 
on  the  ground  that  the  affidavit  was 
made  by  R.  L.  Winfrey  and  not  by 
William  Jackson,  the  county  attorney 
filed  an  answer  showing  that  the  com- 
plaint as  shown  by  the  affidavit  was 
signed  and  sworn  to  by  William  Jack- 
son, and  asked  leave  to  amend  the 
complaint  by  erasing  the  name  of  '*i?. 
L.  Winfrey"  and  inserting  '^William 
fackson."  It  was  held  that  it  was  com- 
petent to  erase  the  name  of  Winfrey 
and  insert  that  of  Jackson  on  the 
theory  that  it  was  not  necessary  in 
the  body  of  the  complaint  to  state  the 
name  of  the  party  making  the  com- 
plaint or  the  affidavit. 

That  it  was  made  by  a  credible  person 
is  not  necessary  to  be  stated  in  the  com- 


957 


Volume  5. 


6701. 


CRIMINAL  COMPLAINTS, 


6701. 


sworn  on  his  oath  deposes  and  says/  that  John  Doe,'^  in  the  county 
of  Freestone,  and  state  of  Texas,  heretofore,  to  wit,  on  or  about 
the  second  day  of  March,  iS98,^  did  then  and  there  (^Here  name  the 
offense  charged,  and  state  with  particularity  the  facts  constituting  the  same'),^ 
contrary  to  the  forms  of  the  statute  in  such  cases  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  state  of  Texas.^ 

Richard  Roe.^ 
Sworn  to  and  subscribed  before  me  this  yf/"M  day  of  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace, 
Precinct  No.  6,  Freestone  County,  Texas? 


plaint.     Dodson  v.  State,  35  Tex.  Crim. 
Rep.  57. 

An  officer  need  not  make  the  com- 
plaint. Lindley  v.  State,  (Tex.  Crim. 
App.  1898)  44  S.  W.  Rep.  165. 

1.  That  affiant  "  has  reason  to  believe 
and  does  believe  "  is  equivalent  to  stat- 
ing in  the  language  of  the  statute  that 
affiant  has  "  good  reason  to  believe  and 
does  believe."  Dodson  v.  State,  35 
Tex.  Crim.  Rep.  571. 

That  the  affiant  "  has  good  reason  to 
believe  and  does  believe  "  that  the  ac- 
cused has  committed  the  offense 
charged  is  sufficient.  Clark  v.  State, 
23  Tex.  App.  260;  Brown  v.  State, 
II  Tex.  App.  451;  Anderson  v.  State,  34 
Tex.  Crim.  Rep.  96;  Staley  v.  State, 
(Tex.  Crim.  App.  1895)  29  S.  W.  Rep. 
272;  Dean  v.  State,  (Tex.  Crim.  App. 
1895)  29  S.  W.   Rep.  477. 

In  Brown  v.  State,  11  Tex.  App.  451, 
affiant  stated  that  "  to  the  best  of  his 
knowledge  and  belief"  the  alleged 
offense  was  committed,  which  was  held 
to  be  sufficient. 

2.  Name  of  accosed  must  be  stated,  if 
known;  when  not  known,  the  complaint 
must  give  some  reasonably  definite  de- 
scription of  him.  Tex.  Code  Crim. 
Proc.  (1895),  art.  257.  Describing  ac- 
cused as  "Mrs.  Beaumont"  has  been 
decided  not  a  sufficient  compliance 
with  this  provision  of  the  statute. 
Beaumont  v.  Dallas,  34  Tex.  Crim. 
Rep.  68. 

3.  Time  and  place  of  the  commission 
of  the  offense  must  be  stated  as 
definitely  as  can  be  done.  Tex.  Code 
Crim.  Proc.  (1895),  art.  257. 

Charging  an  offense  to  have  been  com- 
mitted on  a  date  subsequent  to  the 
making  of  the  complaint  vitiates  the 
complaint.  Womack  v.  State,  31  Tex. 
Crim.  Rep.  41;  Jennings  v.  State,  30 
Tex.  App.  428. 

4.  Name  of  the  ofifense  must  be  stated. 
Tex.  Code  Crim.  Proc.  (1895),  art.  257. 

Charging  part  of  complaint,  see  supra, 
note  I,  p.  932. 


That  an  offense  against  the  laws  of  the 
state  has  been  committed,  or  that  affiant 
has  good  reason  to  believe  and  does 
believe  that  the  accused  has  committed 
such  an  offense,  must  be  stated.  Tex. 
Code  Crim.  Proc.  (1895),  art.  257. 

5.  Need  not  conclude  "against  the 
peace  and  dignity  of  the  state."  Curry 
V.  State,  (Tex.  Crim.  App.  1893)  24  S. 
W,  Rep.  516. 

6.  Must  be  signed  by  the  affiant,  if  he 
can  write  his  name;  otherwise  he  must 
place  his  mark  at  the  foot  of  the  com- 
plaint. Tex.  Code  Crim.  Proc.  (1895), 
art.  257. 

7.  The  want  of  a  jurat  to  a  complaint  is 
fatally  defective.  Neiman  v.  State,  29 
Tex.  App.  360. 

That  the  jurat  was,  in  fact,  made  on 
May  2,  1889,  instead  of  April  2,  1889, 
as  written  therein,  is  a  mere  clerical 
error,  which  does  not  vitiate  the  com- 
plaint. Allen  V.  State,  (Tex.  App.  1890) 
13  S.  W.  Rep.  998. 

A  jurat  to  a  complaint  must  be 
signed  officially  by  the  officer  adminis- 
tering the  oath.  A  jurat  signed  "  Wm. 
Greer,  J.  P."  was  held  invalid  in  Nei- 
man V.  State,  29  Tex.  App.  360,  on  the 
theory  that  such  signature  did  not 
designate  properly  the  official  charac- 
ter; wherein  it  was  intimated,  however, 
that  the  signature  would  have  been 
sufficient  in  the  following  words,  "  IVm. 
Greer,  J.  P.  Prec.  No.  ,  W.  C" 

A  complaint  was  held  to  be  fatally 
defective  to  which  was  appended  a 
jurat  which  did  not  show  the  official 
character  of  the  officer  before  whom 
the  complaint  was  verified.  Robert- 
son V.  State,  25  Tex.  App.  529.  The 
jurat  in  that  case  was  signed  "  W.  H. 
Edell,"  and  following  this  name  were 
some  pen  marks  which  resembled  the 
letter  "  W." 

In  Mican  v.  State,  (Tex.  App.  1892) 
19  S.  W.  Rep.  762,  the  record  showed 
that  the  complaint  was  sworn  and 
subscribed  before  one  "John  M.  Keith," 
but  there   were  no  other  words  desig- 


958 


Volume  5. 


6702. 


CRIMINAL  COMPLAINTS. 


6703. 


Form  No.  6702.' 
The  State  of  Utah,  plaintiff,  ) 

against  *       \QQm^\2\v\\.  for  Burglary. 

John  Doe,  defendant.       ) 
The  State  of  Utah,  ) 
County  of  Utah.       f  ^^• 

Upon  this  y?/"M  day  oi  March,  iS9^,  beioTe  me,  Abraham  Xent,  a 
justice  of  the  peace  2  of  Pr^t?  precinct  within  and  for  the  said  county 
of  Utah,  in  the  state  of  Utah  aforesaid,  personally  appeared  Richard 
Roe,  who  being  duly  examined  and  sworn  by  me  upon  oath  deposes 
and  says:^  {Continuing  and  concluding  as  in  Form  No.  6663.)* 


Form  No.  6703.* 

State  of  Vermont,  )      To  Abraham  Kent,  Esq.,  a  justice  of  the 

County  of  Chittenden,  ss.  \      peace  within  and  for  the  county  of  Chit- 
tenden, state  of  Vermont,  comes  Richard Roe,^  a  grand  juror'  for  the 


nating  his  official  capacity.  Reviewing 
Neiman  v.  State,  29  Tex.  App.  360,  the 
complaint  was  held  to  be  sufficient. 

1.  Utah.  —  Rev.  Stat.  (1898),  §  4604 
et  seq.,  being  similar  to,  if  not  identical 
with,  the  provisions  relating  to  crimi- 
nal complaints  in  preliminary  proceed- 
ings in  Montana  and  North  Dakota. 
See  supra.,  Forms  Nos.  6686,  6692,  and 
notes  thereto. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

2.  Magistrates  to  whom  the  complaint 
may  be  made  are  enumerated  in  the 
statute.     Utah  Rev,  Stat.  (1898),  §  4608. 

3.  Information  and  Belief. —  Complaint 
may  be  sworn  to  upon  information  and 
belief.     U.  S.  v.  Eldredge,  5  Utah  161. 

4.  Most  show  that  the  crime  has  been 


amended  in  matter  of  substance  in  the 
appellate  court.  State  v.  Wheeler,  64 
Vt.  569,  where  the  defective  complaint, 
omitting  the  formal  parts,  is  set  out  in 
full. 

6.  Name  of  complainant  need  not 
appear  in  the  body  of  the  complaint. 
State  V.  Davis,  52  Vt.  376. 

7.  What  persons  or  officers  may  make 
the  complaint  are  enumerated  in  the 
statute.     Vt.  Stat.  (1894),  c.  94. 

A  justice  may  cause  persons  charged 
with  crimes  exceeding  his  jurisdiction 
to  try,  to  be  apprehended  and  com- 
mitted, or  bound  over  for  trial  by 
the  county  court.  Vt.  Stat.  (1894), 
§  1940. 

The  form  of  grand  jurors'  complaint  to 
a  city  court  may  be  as  follows: 
"  State  of  F^r//«7«/,         J  To  the  Honor. 


committed.   Matter  of  Wiseman,  l  Utah     City  oi  Burlington,  ss.  \  able  City  Court, 

within  and  for  the  city  of  Burlington, 
in  the  county  of  Chittenden,  state  of 
Vermont,  comes  .S".  M.  Flint,  city  grand 
juror  within  and  for  said  city  of  Bur- 
lington, in  his  proper  person,  and  on 
his  oath  of  office  complains  \.\vsxfohn 
Doe,  late  of  said  Burlington,  on,  to  wit, 
the  second  day  of  March,  i8<?<f,  at  said 
city  of  Burlington  {Here  state  the  offense 
charged,  and  the  facts  constituting  the 
same),  contrary  to  the  form,  force  and 
effect  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace 
and  dignity  of  the  state. 

S.  M.  Flint,  City  Grand  Juror. 

The   foregoing   complaint  exhibited 
to  me  this//M  day  of  March,  \%q8. 
Charles  Jones,  City  Judge." 

State's  attorney's  complaint  may  be  as 
follows: 


39- 

5.    Vermont.  — Stat.  (1894),  c.  94. 

For  the  formal  parts  of  affidavits.gener- 
ally,  consult  the  title  Affidavits,  vol. 
I,  p.  548. 

For  examples  of  complaints  in  this 
state  see  Forms  Nos.  3946,  3960. 

Complaint  imder  oath  is  necessary  to 
the  issuance  of  the  warrant,  unless  the 
offense  had  been  committed  super 
visum.    State  v  J.  H.,  I  Tyler  (Vt.)  448. 

Certain  omissions  which  shall  not  af- 
fect the  validity  of  a  complaint  are 
enumerated  in  the  statute.  Vt.  Stat. 
(1894),  §  1911. 

Certain  variances  in  complaints  which 
may  be  cured  by  amendment  are  men- 
tioned in  the  statute.  Vt.  Stat.  (1894), 
^  1912. 

Complaint  of   grand   jnror  cannot   be 


959 


Volume  5. 


6704. 


CRIMINAL  COMPLAINTS. 


6704. 


town  of  Colchester,  in  said  county  of  Chittenden,  in  his  own  proper 
person,  and  on  his  oath  of  office  complains,  IhaX  John  Doe,  of  said 
town  of  Colchester,  in  said  county  of  Chittenden,  on  the  second  day  of 
March,  i%98,  at  said  town  of  Colchester,  in  said  county  of  Chittenden, 
(^Here  state  the  offense  charged  and  the  facts  constituting  the  same)^  con- 
trary to  the  form,  force  and  effect  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  state.  ^ 

Richard  Roe,  Grand  Juror. 
The  foregoing  complaint  exhibited  to  me  this  fifth  day  of  March, 
xW8. 

Abraham  Kent,  Justice  of  the  Peace. 


Form  No.  6704.* 


to  wit. 


Commonwealth  of  Virginia, 
County  of  Albemarle. 

Richard  Roe  upon  oath  complains  that  on  the  second  da.y  of  March, 
iS98,  in  the  county  of  Albema?-le,  commomvealth  of  Virginia,  one  John 
Doe,  late  of  ssHd  Albemarle  county,  did  (^Here  state  the  offense  charged 
and  the  fads  constituting  the  same),^  and  he  the  said  Richard  Roe  there- 
fore prays  that  the  said  John  Doe  may  be  apprehended  and  held  to 
answer  the  said  complaint,  and  dealt  with  in  relation  thereto  as  the 
law  may  require. 

Dated  this  fifth  day  o(  March,  i&98. 

Richard  Roe. 


'^  Staite  of  Vdrmont,  )  To   Abraham 

Windham  County,  ss.    \  Kent,  one  of 
the  justices  of  the  peace  within  and  for 
the  county  of  Windham,  comes  Daniel 
Webster,  State's  Attorney  of  said  county 
of  Windham,  in  his  own  proper  person, 
and  on  his  oath  of  office  complains  that 
{Here  insert  charging  part  as  in  Form 
No.  6yoj),  contrary    to  the  form,  force 
and  effect   of  the  statute  in  such  case 
made  and  provided,  and   against   the 
peace  and  dignity  of  the  state. 
Daniel  Webster, 
State's  Attorney,  Windham  County. 
The  witnesses  in  support  of  this  com- 
plaint are: 

Banks  Belk. 
T.  M.  Hughes. 
John  Smith. 

Daniel  Webster, 
State's  Attorney,  Windham  County. 
The  within  complaint  was  exhibited 
to  me  thisyf/M  day  of  March,  a.  d.  x'iqS, 
and  process  then  issued. 
Abraham  Kent, 

Justice  of  the  Peace." 

1.  Charging  part    of    complaint,    see 
supra,  note  i,  p.  932. 

2.  Most  conclude  "against  the  form 


of  the  statute."  State  v.  Soragan,  40 
Vt.  450. 

In  State  v.  Bacon,  40  Vt.  456,  it  was 
held  that  a  count  in  a  criminal  com^ 
plaint  having  no  reference  to  another 
count,  and  not  concluding  against  the 
statute,  etc.,  is  bad  in  form. 

The  oath  of  a  private  prosecutor  may  be 
made  before  any  officer  authorized  to 
administer  oaths.  State  v.  Freeman, 
59  Vt.  661. 

Where  a  private  prosecutor  actually 
made  oath  before  the  issuance  of  the 
warrant,  the  nonappearance  of  a  certifi- 
cate to  that  effect  attached  to  the  com- 
plaint may  be  amended.  State  v. 
Freeman,  59  Vt.  661. 

A  complaint  by  a  private  prosecutor 
need  not  be  made  before  the  magistrate 
who  issues  the  warrant.  State  v.  Free- 
man, 59  Vt.  661. 

3.  Virginia.  —  Code  (1887),  §  3956 
et  seq. 

West  Virginia.  —  Code  (1891),  p.  952, 
§  2  et  seq. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affid.wits, 
vol.  I,  p.  548. 

4.  Charging  part  of  complaint,  see 
supra,  note  r,  p.  932. 


960 


Volume  5. 


6705.  CRIMINAL  COMPLAINTS.  6706. 

County  of  Albemarle,  to  wit: 

This  fifth  day  of  March,  \W8,  the  ?>a.\A  Richard  Roe  made  oath  to 
the  truth  of  the  foregoing  complaint  before  me. 

Abraham  Kent,  Justice  of  the  Peace.^ 

Form  No.  6705.* 

The  State  of  Washington  ) 

against  v  Complaint  for  Burglary. 

John  Doe.  ) 

The  State  of  Washington,  \ 
County  of  Chehalis.  \  ^^' 

Personally  appeared  before  me,  Abraham  Kent,  a  justice  of  the 
peace  ^  in  and  for  Blank  precinct,  in  said  Chehalis  county,  state  of 
Washington  aforesaid,  this  fifth  day  of  March,  i898,  Richard  Roe,  of 
Montesano,  in  said  county  of  Chehalis,  who  being  first  duly  sworn  by 
me  complains  and  says:  {Continuing  and  concluding  as  in  Form 
No,  6663.) 

Form  No.  6706.* 

The  State  of  Wisconsin 
against 
John  Doe. 
The  State  of  Wisconsin,  ) 
County  of  Pierce.  \  ^^' 

Personally  appeared  before  me,  a  justice  of  the  peace*  within  and 
for  said  county  of  Pierce,  state  of  Wisconsin,  this  fifth  day  of  March, 
i898,  Richard  Roe,  of  Ellsworth,  in  said  county  of  Pierce,  who  being 
duly  sworn  complains  and  says,  that  on  the  second  day  of  March, 
xW8,  at  said  co\xnty,  Johti  Doe  did  {Here  state  the  offense  charged  and 
the  facts  constituting  the  same),^  against  the  peace  and  dignity  of  the 

1.  Officers  who  may  issue  process  for  the  For  an  example  of  a  complaint  in  this 
apprehension  of  offenders  are  enume-     state  see  Form  No.  3948. 

rated  in  the  statute.  Must  be  Bedaoed  to  Writing — Sanb. 

Virginia.  —Code  (1887),  §  3955.  &  B.  Anno.  Stat.  Wis.  (1889),  §  4776. 

IVest  Virginia.  — Code  (1891),  p.  952,  6.  Magistrates  who  may  issue  process 

§  I.  for  the  apprehension  of  offenders  are 

2.  Washington.  —  Ballinger's  Codes  enumerated  in  the  statute.  Sanb.  & 
&  Stat.  (1897),  §  6695  ^^j^i^.  B.    Anno.    Stat.    Wis.   (1889),  §   4775; 

For  the  formal  parts  of  affidavits,  gen-  Faust   v.    State,  45   Wis.   273;  State  v. 

erally,    consult    the    title   Affidavits,  Stewart,  60  Wis,  5S7. 

vol.  I,  p.  548.  6.  A  substantial  statement  of  the  of- 

Mtist  be  Beduced  to  writing.  —  Ballin-  fense   is   sufficient.     Ford   v.   State,    3 

ger's  Codes  &  Stat.  Wash.  (1897),  §6695.  Pin.   (Wis.)  449.     But    the    statement 

Must  be  subscribed  and  sworn  to  by  must  at  least  approach  toward  the 
complainant.  Ballinger's  Codes  &  Stat,  charging  of  a  criminal  offense.  Bald- 
Wash.  (1897),  §  6695.  win  V.  Hamilton,  3  Wis.  747. 

3.  Magistrates  to  whom  complaints  As  to  the  sufficiency  of  the  statement 
may  be  made  are  enumerated  in  the  of  the  offense,  see  State  v.  Dale,  3  Wis. 
statute.       Ballinger's    Codes    &    Stat.  795. 

Wash.  (1897),  §§  6695,  4691.  Charging  part  of  complaint,  seej«/ra, 

4.  Wisconsin.  —  Sanb.    &    B.    Anno,     note  i,  p.  932. 

Stat.  (1889),  §  4776  <?/  se^.  Information  and  belief  may  sustain  the 

For  the  formal  parts  of  affidavits,  gen-  complaint  in  some  states.  State  v. 
erally,  consult  the  title  Affidavits,  Davie,  62  Wis.  305;  State  v.  Tall,  56 
vol.  I,   p.  548.  Wis.  577. 

5  E.  of  F.  P.  —61.  961  Volume  5. 


6707.  CRIMINAL  COMPLAINTS.  6708 

state  of  Wisconsin. 

Richard  Roe.^ 
Subscribed  and  sworn  to  before  me  this  fifth  day  of  March,  i  S98. 

Abraham  Kent,  Justice  of  the  Peace. ^ 

♦ 

Form  No.  6  7  o  7 .2 

State  of  Wyoming,  County  of  Johnson,  ss. 

Before  me,  Abraham  Kent,  a  justice  of  the  peace  ■*  in  and  for  said 
county,  personally  came  Richard  Roe,  who  being  duly  sworn  accord- 
ing to  law  deposes  and  says,*  that  on  or  about  the  second  day  of 
March,  i898,  at  the  county  of  Johnson,  one  John  Doe^  (Ilere  describe 
the  offense  committed  as  nearly  according  to  the  nature  thereof  as  the  case 
will  admif),^  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  state. 

Richard  RoeP 

Sworn  to  and  subscribed  before  me  thisjif/V/z  day  of  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No,  6708.* 

United  States  of  America,  ) 
District  of  Indiana,  >•  ss. 

City  of  Indianapolis.  ) 

Before  me,  Carroll  Carter,  a  United  States  Commissioner,'  appointed 
by  the  Circuit  Court  of  the  United  States  for  the  District  of  Indiana, 
in  the  Seventh  Circuit,  to  take  acknowledgments  of  bail,  etc.,  according 
to  the  acts  of  congress  in  that  behalf  provided,  personally  appeared 

1.  Must  be  subscribed  and  sworn  to  by        7.  Must  be  signed    by   complainant, 
the    complainant.     Sanb.    &  B.   Anno.     Wyoming  Rev.  Stat.  (1887),  ^  3181. 
Stat.  Wis.  (1889),  §  4776.  8.  Offenses  against  the  United  States.  — 

2.  Wyoming.  —  Rev.  Stat.  (1887),  ^  U.  S.  Rev.  Stat.  (1878),  §  1014,  provid- 
3181  et  seq.  ing    that   for    any   crime    or    offense 

Kansas.  —  2  Gen.  Stat.  (1897),  p.  402,  against   the  United  States  the  offender 

§   36.     See  supra.  Form  No.  6676,  and  may,    by    the   proper    magistrate   and 

notes  thereto.  agreeably  to  the  usual  mode  of  process 

Ohio.  —  Bates'  Anno.  Stat.  (1897),  §  against  offenders  in   such  state,  and  at 

7133  et  seq.     See  supra.  Form  No.  6693,  the  expense  of  the  United  States,   be 

and  notes  thereto.  arrested,  imprisoned,  or  bailed,  as  the 

Oklahoma.  — Stat.  (1893),  §  4958.  See  case  may  be,  for  trial  before  such  court 

supra.  Form  No.  6694,  and  notes  thereto,  of  the  United  States  as  by  law  has  cog- 

For  the  formal  parts  of  affidavits,  gen-  nizance  of  the  offense, 

erally,   consult    the   title    Affidavits,  For  the  formal  parts  of  affidavits,  gen- 

vol.  I,  p.  548.  erally,    consult  the   title    Affidavits, 

Must  be  in  Writing.  —  Wyoming  Rev.  vol.  i,  p.  548. 

Stat.  (1887),  i-  3181.  9.  Magistrates  to  whom  the  complaint 

8.  Magistrates  to  whom  the  complaint  may  be  made  are  enumerated  in  the  stat- 

may  be  made  are  enumerated  in  the  utes.     U.  S.  Rev.  Stat.  (1878),  §  1014. 

statute.     Wyoming  Rev.  Stat.  (1887),  §  A  United    States  commissioner   acting 

3180.  under  the  provisions  of  the  U.  S.  Rev. 

4.  Must   be  under   Oath. — Wyoming  Stat.,  §  1014,  is   merely  a  committing 

Rev.  Stat.  (1887),  §  3181.  magistrate;  U.  S.    v.   Martin,   17    Fed. 

6.  Mtist  charge  some  person  with  com-  Rep.  150,  and  exercises  the  same  but  no 

mitting  some  offense.     Wyoming  Rev.  greater   power   than    the   state  magis- 

Stat.  (1887),  S  3181.  trates  for   the   same  purposes.     U.  S. 

6.  Charging    part  of  complaint,   see  v.  Horton,  2  Dill.  (U.  S.)  94. 
supra,  note  i,  p.  932. 

962  Volume  5. 


6708. 


CRIMINAL  COMPLAINTS. 


6708. 


this  day  Richard  Roe,  who  being  first  duly  sworn  deposes  and  says, 
[that  he  has  good  reason  to  believe,  and  does  verily  believe,]*  that 
on  or  about  the  second  day  of  March,  a.  d.  \%98,  one  John  Doe^ 
late  of  the  said  district,  at  the  said  district,  unlawfully,  wilfully, 
knowingly  and  feloniously,  did  then  and  there  (^Here-state  the  offense 
charged  and  the  facts  constituting  the  same),"^  contrary  to  the  form  of 


1.  A  complaint  on  information  and  belief 
made  to  a  committing  magistrate  in 
California  by  virtue  of  U.  S.  Rev. 
Stat.  (1878),  §  1014,  and  the  Cal.  Pen. 
Code  (1897),  §  806,  is  insufficient.  U. 
S.  V.  Collins,  79  Fed.  Rep.  65,  citing  U. 
S.  V.  Rundlett,  27  Fed.  Cas.  No.  16, 
208;  U.  S.  V.  Hardin,  10  Fed.  Rep.  803; 
f5 .  S.  V.  Horton,  26  Fed.  Cas.  No.  15, 
393- 

2.  Charging  part  of  complaint,  see 
supra,  note  i,  p.  932. 

"Agreeably  to  the  OBoal  mode  of  process 
against  offenses  in  such  states "  is 
intended  to  assimilate  the  proceed- 
ings for  holding  accused  persons  to 
answer  before  a  court  of  the  United 
States  for  the  proceedings  had  for  simi- 
lar purposes  by  the  laws  of  the  state 
where  the  proceedings  should  take 
place.  U.  S.  V.  Rundlett,  2  Curt.  (U.  S.) 
41;  U.  S.  v.  Tureaud,  20  Fed.  Rep.  621; 
Gould  &  Tucker's  Notes  to  U.  S.  Rev. 
Stat.,  p.  339.  Unless  in  contravention 
of  the  express  provisions  of  the  federal 
statutes.  Turners.  U.  S.,  19  Ct.  of  CI. 
629;  Gould  &  Tucker's  Notes  to  U.  S. 
Rev.  Stat.,  p.  339. 

Thus  in  Florida  the  complaint  may 
be  as  follows: 
"  United  States  of  America,      )  c_» 

Southern  District  of  Florida.  \ 

Before  me,  Carroll  Carter,  a  Commis- 
sioner of  the  Circuit  Court  of  the  United 
States  in  and  for  said  District,  person- 
ally comes  Richard  Roe  viho,  being  duly 
sworn,  on  his  oath  says  that  he  has 
good  reason  to  believe,  and  does  believe, 
that  {continuing  as  in  Form  No.  6708  as 
to  the  charging  part  and  concluding  thus:) 
which  is  in  violation  of  the  laws  of  the 
United  States,  and  contrary  to  the  peace 
and  dignity  thereof. 

Richard  Roe. 

Subscribed  and  sworn  to  before  me 
thisyf/M  day  of  March,  A.  D.  xZgS. 

Carroll  Carter,  Commissioner 
U.  S.  Circuit  Court. 

For  the  Southern  District  of  Florida." 

And  in  Idaho  as  follows: 
*'  United  States  of  America,  ) 

District  of  Idaho.  \     ' 

Before    Carroll    Carter,    a    Commis- 


sioner of  the  Circuit  Court  of  the 
United  States  for  the  District  of  Idaho 
to  take  bail,  etc.,  Richard  Roe,  ol  Mur. 
ray,  in  the  County  of  Shoshone  and 
State  of  Idaho,  on  oath,  deposes  and 
says  xtiaxjohn  Doe,  late  of  the  district 
aforesaid,  heretofore,  to  wit,  on  the 
second  day  of  Alarch,  a.  d.  189^,  at  said 
district,  did  {Here  state  the  offense  charged 
and  the  facts  constituting  the  same),  con- 
trary to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  United 
States. 

Wherefore,  the  said  deponent  prays 
that  the  saidy^^w  Doe  may  be  appre- 
hended and  dealt  with  according  to 
law. 

And  furthermore,  the  said  deponent 
prays  that  Banks  Belk  and  T.  M. 
Hughes,  of  Murray,  in  said  County  of 
Shoshone,  and  State  of  Idaho,  whom  he 
has  reason  to  believe  and  does  believe 
are  material  witnesses  to  the  subject 
matter  of  this  complaint,  may  be  duly 
summoned  to  appear  and  give  evidence 
thereto. 

Subscribed  and  sworn  to  before  me, 
this//M  day  of  March,  \^S. 

Carroll  Carter,  Commissioner 
of  the  Circuit  Court  for  the 
District   of  Idaho." 

And  in  Illinois  as  follows: 

"  Before  Carroll  Carter,  United  States 
Commissioner. 
United  States  of  America,      | 
Southern  District  of  Illinois.  \ 

Richard  Roe,  of  the  city  of  Cairo,  in 
the  state  of  Illinois,  being  duly  sworn, 
deposes  and  says,  that  on  or  about  the 
second  day  of  March,  A.  D.  iBgS,  at  said 
city  of  Cairo,  in  .Alexander  county,  in 
said  state  of  Illinois,  in  said  district,  one 
John  Doe,  late  of  said  district,  did  {Here 
state  offense  cliarged  and  the  facts  consti- 
tuting the  same),  contrary  to  the  statute 
in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the 
United  States. 

Wherefore  the  said  deponent  prays 
that  the  ia\dJohn  Doe  may  be  arrested 
and  dealt  with  according  to  law. 

Richard  Roe. 


963 


Volume  5. 


6709. 


CRIMINAL  COMPLAINTS. 


6709. 


the  statute  of  the  United  States  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  United  States  of  America. 

Richard  Roe. 
Subscribed  and  sworn  to  in  my  presence,  this  fifth  day  of  March^ 
A.  D.  i855,  at  Indianapolis  in  the  district  aforesaid. 

Carroll  Carter., 
Commissioner  of  the  Circuit  Court  of  the 
United  States  for  the  District  of  Indiana. 

II.  FOR   OFFENSES  TRIABLE   IN  JUSTICES'  AND  OTHER   INFERIOR 

COURTS. 

1.  In  Justices'  Courts.^ 

Form  No.  6709. 

In  the  Justice's  Court,  before  Abraham  Kent.,  Justice  of  the  Peace 


Subscribed  and  sworn  to  before  me 
thisyf/M  day  of  March,  A.  D.  iS^cf. 

Carroll  Carter,  United  States 
Commissioner  for  the 
Southern  District  of  Illi- 
nois. " 

And  in  Michigan  as  follows: 
^^ Eastern  District  of  Michigan,  ss. 

The  complaint  of  Richard  Roe,  who 
being  duly  sworn,  says  ihatjohn  Doe, 
late  of  said  district,  heretofore,  to  wit. 
on  the  second  day  of  A/arch,  A.  D.  i39<?, 
at  the  city  of  Detroit  in  said  district, 
aforesaid,  did  {Here  state  offense  charged 
and  facts  constituting  the  same),  contrary 
to  the  act  of  Congress,  in  such  case  pro- 
vided, and  against  the  peace  and  dig- 
nity of  the  United  States. 

Wherefore  complainant  prays  the 
said  John  Doe  may  be  apprehended 
and  dealt  with  according  to  law. 

Taken,  subscribed  and  sworn  to,  this 
fifth  day  of  March,  A.  D.  liqS,  before 
me, 

Carroll  Carter,  U.  S.  Commis- 
sioner for  the  Eastern  Dis- 
trict of  Michigan." 

And  in  Ohio  as  follows: 
"  United  States  of  America,  \ 

Western  Division  of  the  Northern  >  ss. 
District  of  Ohio.  ) 

Before  me,  Carroll  Carter,  a  Commis- 
sioner of  the  Circuit  Court  of  the  United 
States,  for  the  Northern  District  of  Ohio, 
personally  appeared  this  day  Richard 
Roe,  who  being  first  duly  sworn,  deposes 
and  says  that  on  or  about  the  second  day 

of  March,  A.  D.  iS^cf,  at ,  in  said 

district,  John  Doe,  in  violation  of  section 

of    the    Revised   Statutes    of    the 

United    States,    did    unlawfully   {Here 


state  offense  charged  and  the  facts  consti- 
tuting the  same). 

Deponent  further  says  that  he  has 
reason  to  believe  and  does  believe  that 
Banks  Belk  and  T.  M.  Hughes  are  ma- 
terial witnesses  to  the  subject  matter  of 
this  complaint. 

Richard  Roe. 

Sworn  to  before  me,  and  subscribed 
in  my  presence,  t\iis  fifth  day  of  March 
A.  D.   l89<?. 

Carroll  Carter,  (seal) 

Commissioner  of  the  Circuit 
Court  of  the  United  States 
for  the  Western  Division 
of  the  Northern  District  of 
Ohio." 

1.  Offenses  Triable  in  Justices'  Courts. 
—  The  complaint  is  similar  in  all 
respects  to  a  criminal  complaint 
in  preliminary  proceedings,  except 
that  it  must  charge  an  offense  such 
as  to  bring  the  case  within  the  justice's 
jurisdiction.  Form  No.  6709  in  the 
text  is  a  general  form,  which  may  be 
used  as  a  model  for  such  a  complaint 
in  most  of  the  states. 

Arizona.  —  Pen.  Code  (1887),  §  2208; 
see  supra.  Form  No.  6663. 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§  1963;  see  supra,  Form  No.  6664. 

California. — Pen.  Code  (1897),  §  1426; 
see  supra.  Form  No.  6665. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§§  1484,  2766;  see  supra.  Form  No.  6666. 

Connecticut.  —  Gen.  Laws  (1888),  § 
693  et  seq.;  see  supra.  Form  No.  6667. 

Delaware.  —  Rev.  Stat.  (1893),  p.  734, 
§  16;    see  supra.  Form  No.  6668. 

Florida.  —  Rev.  Stat.  (1892),  §  2950; 
see  supra.  Form  No.  6670, 


964 


Volume  5. 


6709. 


CRIMINAL  COMPLAINTS. 


6709. 


in  and  for  the  town  (or  tmvnship  or  precinct)  of  [(naming  town,  town- 
ship or  precinct)  of]  {jiame  of  county)  county,  state  of  {name  of  state). 
State  of  (name  of  state),  [plaintiff,]  ) 


against 


Complaint  for  (name  of  offense). 


ss. 


John  Doe,  [defendant.] 
State  of  (name  of  state),  ) 
County  of  (name  of  county).  \ 

Richard  Roe,  being  duly  sworn  on  oath  says  that  at  (name  of  plaee), 
in  said  (name  of  county)  county,  on  the  second  day  of  March,  i&98,^ 


Idaho.—  Rev.  Stat.  (1897),  §  8280;  see 
supra.  Form  No.  6672. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  1384,  par.  564;  see  supra. 
Form  No.  6673. 

Indiana.  —  Horner's  Stat.  (1896),  § 
1625;  see  supra.  Form  No.  6674. 

Iowa. — Code(i897),  §  S575  £t  seg.;  see 
supra.  Form  No.  6675. 

Kansas.  —  2  Gen.  Stat.  (1897),  p.  507, 
§  3;  see  supra.  Form  No.  6676. 

Kentucky.  —  Bullitt's  Crim.  Code, 
§  330%  providing  that  no  written  com- 
plaint shall  be  required  for  prosecutions 
in  justices'  courts. 

Maine.  —  Rev.  Stat.  (1883),  c,  132; 
see  supra.  Form  No.  6679. 

Maryland.  —  Laws  (1894),  c.  338;  see 
supra.  Form  No.  6680. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
155.  §  43;  see  supra.  Form  No.  6681. 

Michigan. —  How.  Anno.  Stat.  (1882), 
§  7093;  see  supra.  Form  No.  6682. 

Minnesota.  —  Stat.  (1894),  §§  5095, 
5123,  1074,  1357,  1391;  see  supra.  Form 
No.  6683. 

Missouri.  —  Rev.  Stat.  (1889),  §  4329; 
see  supra.  Form  No.  6685. 

Montana.  —  Pen.  Code  (1895),  ^  2680; 
see  supra.  Form  No.  6686. 

Nebraska. — Comp.  Stat.  (1897),  5^  7039; 
see  supra.  Form  No.  6687. 

Nevada.  —  Gen.  Stat.  (1885),  §  4477; 
see  supra.  Form  No.  6663. 

New  Hampshire.  —  Pub  Stat.  (1891), 
c.  248;  see  supra.  Form  No.  6688. 

Newfersey.  —  Gen.  Stat.  (1895),  p. 
1 1 19,  §  I  et  seq.;  see  supra.  Form  No. 
6689. 

New  Mexico. — Comp.  Laws  (1884), 
§  2396;  see  supra.  Form  No.  6663. 

New  York. — Cook's  Code  Crim.  Proc. 
(1891),  §  145;  see  supra.  Form  No.  66go. 

North  Carolina.  —  Code  (1883),  §  892 
et  seq.,  §  1133;  see  supra.  Form  No. 6691. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  6738  et  seq. ;  see  supra.  Form  No.  6692. 

Ohio.  —  Bates'  Anno.  Stat.  (1897), 
§  liy^et seq.;  see  supra.  Form  No.  6693. 


Oklahoma. — Stat.  (1893),  §5540;  see 
supra.  Form  No.  6694. 

Oregon.  —  Hill's  Anno.  Laws  (1892), 
§  2132  et  seq.;  see  supra.  Form  No.  6695. 

Pennsylvania.  —  See  supra.  Form 
No.  6696. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
229;  see  supra.  Form  No.  6697. 

South  Carolina.  —  2  Rev.  Stat.  (1893), 
p.  268,  §  19;  see  supra.  Form  No.  6698. 

South  Dakota.  —  Dak.  Comp.  Laws 
(1887),  §  6145  et  seq.;  Laws  (1893),  p.  46; 
see  supra.  Form  No.  6699. 

Tennessee.  —  See  Form  No.  6700,  and 
notes  thereto. 

Texas.  —  Code  Crim.  Proc.  (1895), 
art.  K^-^betseq.;  see  jM/ra.Form  No.  6701. 

Utah.—K^\.  Stat.  (1898),  §  5125;  see 
supra.  Form  No.  6702. 

Vermont.  —  Stat.  (1894),  §  1927;  see 
supra.  Form  No.  6703. 

Virginia. — Code  (1887),  §  4106;  see 
supra.  Form  No.  6704. 

Washington.  —  Ballinger's  Anno. 
Codes  &  Stat.  (1897),  §  6667;  see  supra. 
Form  No.  6705. 

West  Virginia.  —  Code  (1891),  p.  488, 
§  223;  see  supra.  Form  No.  6704. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §  4740  ^/  seq.;  see  supra.  Form 
No.  6706. 

Wyoming.  —  Rev.  Stat.  (1887),  8  3621; 
see  supra.  Form  No.  6707. 

Consult  also  annotations  to  Forms 
Nos.  6662  to  6708,  supra. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

1.  Time  and  Place.  —  A  complaint  in 
a  justice  or  police  court  is  sufficient 
which  sets  forth  the  offense  charged, 
with  such  particulars  of  time,  place, 
person  and  property  as  to  enable  the 
defendant  to  understand  distinctly  the 
character  of  the  offense  complained  of, 
and  to  answer  the  complaint.  Ex  p. 
Mansfield,  106  Cal.  400. 

Information  and  Belief.  —  A  complaint 
before  a  justice  of  the  peace  charging 


965 


Volume  5. 


6710.  CRIMINAL  COMPLAINTS.  6710. 

John  Doe  did  commit  the  crime  of  {jiame  of  offense  charged^  as  follows: 
the  saidy^/f«  Doe,  then  and  there  bemg,  did  wilfully  and  unlawfully 
(^Here  state  the  facts  constituting  the  offense  charged),  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  state  of  {jiame  of  state)}-  Wherefore  the  said 
Richard  Roe  prays  that  the  said  John  Doe  may  be  arrested  (or  appre- 
hended) and  dealt  with  according  to  law  (or  as  justice  may  require). 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  this  fifth  day  of  March,  a.  d. 
1^98. 

Abraham  Kent,  Justice  of  the  Peace  in  and  for 

,  [the  town  (or  township  or  precinct)  of 

(name  of  town,  township  or  precincts,  in] 

{name  of  county)  county,  state  of  (name 

cf  state). 


\ 


Form  No.  6710. 

The  State  of  Alabama, 
Dale  County. 

Personally  appeared  before  me,  Abraham  Kent,  a  justice  of  the 
peace  (or  a  fudge  of  the  county  court)  of  said  county,  afifiant  one 
Richard  Roe,  who  being  duly  sworn  says  on  oath  that  he  has  probable 
cause  for  believing  and  does  believe^  that  an  offense,  to  wit,  an  assault 
and  battery  (or  other  misdemeanor,  designating  it  by  name  or  by  some  other 
phrase  which  in  common  parlance  designates  it),^  has  been  committed  in 

defendant  with  a  misdemeanor,  sworn  4204,  4236,  prescribing  the  form  of  this 
to  by  the  county  attorney  "on  infor-  affidavit.  Consult  also  Form  No.  6662, 
mation  and  belief,"  is  not  sufficient  to  supra,  and  notes  thereto, 
sustain  a  conviction.  So  held  in  A'aMjaj  Precedents.  —  See  jE'.r/.  Sam,  51  Ala. 
on  petition  for  writ  of  habeas  corpus.  35;  Murphy  v.  State,  55  Ala.  254. 
Matter  of  Lewis,  31  Kan.  71.  For  the  formal  parts  of  affidavits,  gen- 
Scandalous  Matter.  —  A  complaint  erally,  consult  the  title  Affidavits, 
otherwise  sufficient  ought  not  to  bedis-  vol.  i,  p.  548. 

missed    merely    because     it    contains  A  complaint  on  oath  charging  a  person 

scandalous  matter.      So  held  in  a  com-  named  with  the  commission  of  a  speci- 

plaint  for  vagrancy,  which  charged  the  fied   offense   is    the    initiatory   step  in 

defendant    with    "  being   a    first-class  criminal    proceedings    by    which    the 

pimp."     Butte    v.    Peasley,    18    Mont,  jurisdiction  of  a  justice  of  the  peace  is 

303.  called   into   exercise.     Drake  v.  State, 

Charging    Fart.  —  See    supra,  note  i,  68  Ala.  510. 

p.  932.  3.  "  Has  reason  for  believing  and   does 

1.  Conclusion.  —  While  the  rule  is  in  believe"  is  equivalent  to  the  words 
force  in  California  requiring  the  con-  "  has  probable  cause  for  believing  and 
elusion  of  an  indictment  or  information  does  believe."  Sale  z/.  State,  68  Ala. 
to  be  against  the  form  of  the  statute,  530. 

yet  this  rule  does  not  apply  to  com-  4.  Describing  offense  with  same  par- 
plaints  for  misdemeanors  in  justice  and  ticularity  as  in  an  indictment  is  not 
police  courts.  Ex  p.  Mansfield,  106  necessary;  it  is  sufficient  to  describe 
Cal.  400.  the  offense  by  name  or  by  some  phrase 
Names  of  the  witnesses  need  not  be  which  in  common  parlance  describes  it. 
indorsed  upon  the  complaint  in  a  Brazleton  v.  State,  66  Ala.  96;  Louis  v. 
prosecution  commenced  before  a  jus-  State,  112  Ala.  52.  The  affidavit  in  the 
tice  of  the  peace.  State  v.  Wood,  49  latter  case  was  as  follows:  "Personally 
Kan.  711.  appeared    before     me,  A.  A.  Harris,  a 

2.  Alabama.  —  Crim.  Code  (1886),  §§  justice  of   the   peace   in   and    for  said 

966  Volume  5. 


6711.  CRIMINAL  COMPLAINTS.  6712. 

said  county  by  on&  John  Doe  on  the  person  {or  property,  2i%  the  case 
may  be)i  of  one  Samuel^Short,  against  the  peace  and  d'ignity  of  the 
state  of  Alabama.^  Richard  Roe. 

Subscribed  and  sworn  to  before  me  this//M  day  of  March,  iS98. 

Abraham  Kent, 
Justice  of  the  Peace  {or  Judge  of  the  County  Court). 

Form  No.  6  7  1 1 . 

(Precedent  in  Ardery  v.  State,  56  Ind.  328.)* 
[State  of  Indiana,  \ 

County  of  Bartholomew?^^  \ 
Andre^v  J.  Galbraith  swears,  that,  on  or  about  the  8th  day  of  Octo- 
ber, 1875,  at  the  county  of  Bartholomew,  state  of  Indiana,  one  Henry 
Ardery  did  then  and  there,  in  a  public  place,  make  an  indecent 
exposure  of  his  person,  by  then  and  there  making  an  uncovered 
exhibition  of  his  privates,  in  the  presence  of  divers  persons  then  and 
there  assembled,^  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  as  affiant  is  informed  and  verily  believes. 

Andrew  J.  Galbraith. 
Subscribed  and  sworn  to  before 

George  W.  Arnold,  Justice  of  the  Peace. 

Form  No.  6712.' 
(Precedent  in  State  v.  Turnbull,  78  Me.  392.) 

county,   Leroy  Louis,  who   being   duly  Words  of  the  Statute.  —  It  is  generally 

sworn,  says  on  oath,  that  A'«V/iflra'Z<7«ij,  sufficient   to   follow   the  words  of  the 

w  thin   twelve   months  before   making  statute,   but  this  rule  does  not    apply 

th's  affidavit,  in  said  county,  did  com-  where   the   statute   fails    to    prescribe 

mit  assault  and  battery  with  a  weapon,  with   definiteness   the   constituents    of 

or  a;sault,  or  affray,   on  the   person  of  the   offense.     Miles   v.  State,   94   Ala. 

Leroy  Louis,  against  the  peace  and  dig-  io6. 

nity  of  the  state  of  Alabama."     And  it  Time  need  not  be  alleged  in   the  affi- 

was  held  that  the  addition  of  the  words  davit.     Bell  v.  State,  75  Ala.  25. 

"or  aflfray  "   did    not    invalidate    the  1,  Not  confined  to  offenses  against  the 

affidavit.  person  or  property,  as  the  form  indi- 

In   Gandy  v.  State,   81    Ala.    69,   the  cates.     Sale  v.  State,  68  Ala.  530. 
complaint  was  as  follows:  "Personally  2.  Need  not  conclude  with  the  words 
appeared   Rufus  Graydon,    who   being  "  against  the  peace  and  dignity  of  the 
duly  sworn  deposes  and  says,  that  on  state."     Thomas  w.  State,  107  Ala.  61. 
or   about    the   2otk  day   of    September,  3.  It  was  held  in  this  case  that  the 
1896,    in   said   state    and    county,    the  complaint   sufficiently  charged  the  of- 
oflfense    of    persuading    my   daughter  fense  of  public  indecency.     Ardery  v. 
{Belle)   from    my   employment   and  at  State,  56  Ind.  328.     See  Horner's  Ind. 
night,  and  also  taking  her  to  his  home  Stat.  (1896),  g  1625.    Consult  also  Form 
and  secreting  her  to  prevent   me  from  No.  6674,  .f«/r(7,  and  notes  thereto, 
securing   and    taking  her  back  to  my  For  tie  formal  parts  of  affidavits,  gen- 
employ,  and  he  has  forbidden  me  from  erally,   consult  the    title    Affidavits, 
coming  in  his  house  and  threatening  to  vol.  i,  p.  548. 

shoot  me  or  any  while  man,  was  in  the  4.  The  words  in  [  ]  will  not  be  found 

opinion  of  the  complainant  committed,  in    the   reported  case,  but   have   been 

and   that   Lazarus    Gandy    was    guilty  added  to  make  the  form  complete, 

thereof."     It  was    held    that   the   com-  6.   Cliarging   part  of  complaint,    see 

plaint  was  wanting  in  that  certainty  of  supra,  note  i,  p.  932. 

description    which    was    necessary   to  6.  Maine.  —  Rev.  Stat.  (1883),  c.  132. 

constitute     a     formal     accusation     of  Consult  also  Form  No.  6679,  supra,  and 

crime.  notes  thereto. 

967  Volume  5. 


6712.  CRIMINAL  COMPLAINTS.  6712. 

State  of  Maine,  Lincoln,  ss. 

To  Jatnes  /.  York,  Jr.,  one  of  the  trial  justices  within  and  for  the 
county  of  Lincoln: 
William  Vannah  of  Nobleboro  in  the  county  of  Lincoln,  on  the  fif- 
teenth day  of  May  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  eighty-four,  in  behalf  of  said  State,  on  oath  complains 
that  William  Turnbull  and  Edward  Harrington,  both  of  Edgecomb  in 
the  county  of  Lincoln,  on  the  first  day  of  May,  A.  d.  i88^,  and  on  di- 
vers other  days  and  times  between  said  first  day  of  May  and  the  day 
of  making  this  complaint,  did  keep  and  maintain,  for  the  purpose  of 
taking  alewives  and  other  fish,  a  certain  fish  weir,  in  the  waters  of 
the  Damariscotta  river  aforesaid  in  said  county  of  Lincoln,  [at  a  place 
{naming  or  describing  it^  East  of  the  railroad  bridge  near  Damaris- 
cotta Mills,  which  waters  are  not  by  section  thirty-one  of  chapter 
forty-six  of  the  Maine  Revised  Statutes,  exempt  from  the  provisions 
of  section  forty-three  of  chapter  forty-six  of  the  Maine  Revised 
Statutes  relating  to  migratory  fishes  and  the  supervision  of  fish- 
ways  by  the  commissioners,]^  and  that  said  William  Turnbull  and 
Edward  Harrington  were  bound  and  required  by  law  to  take  out  and 
carry  on  shore  the  netting  and  other  material  which,  while  fishing, 
closes  that  part  of  said  weir  where  the  fish  are  usually  taken,  and  let 
the  same  there  remain  during  the  weekly  close  time  as  prescribed 
and  required  by  section  forty-three  of  chapter  forty  of  the  Revised 
Statutes  of  Maine  of  the  year  i?>83;  to  wit,  during  the  time  between 
sunrise  on  Saturday  morning  of  the  tenth  day  of  May,  a.  d.  i8^4,  «ind 
sunrise  on  the  following  Monday  morning  of  the  tivelfth  day  of  May, 
A.  D.  i2>8J^  but  the  said  William  Turnbull  and  Edward  Harrington 
did  not  take  out  and  carry  on  shore  the  netting  or  other  material 
which,  while  fishing,  closes  the  part  of  said  weir  where  the  fish  are 

1.  This  was  a  complaint  for  fishing  statute.     The  complaint  was  as  follows: 

with   weirs   in  a  river  during  Sunday  ''^  To  Eusebeus  Weston  ZinAf antes  Bell, 

(close   time)  and  was  adjudged  to   be  Esq'rs,  Justices  of  the  Peace  in  and  for 

bad  on  demurrer  for  not  alleging  that  the  county  of  Somerset: 

the  weirs  were  located  in  that  part  of  The  undersigned,  selectmen  of  5/£<?a/- 

the  river  not  exempted  from   the  pro-  hegan,  represent  that  Mehitable  Nicho- 

visions  of  the  statute  (Me.  Rev.  Stat.,  las,  Sarah  J.  Hayden,   Elbridge   G.  and 

c.  40,  §§  43  and  31).  State  v.  Turnbull,  William  H,  Hayden,  Mary  f.  and  Fred- 

78  Me.  392.     This   omission    has    been  erick  York,  Alartha  Colway  and  her  two 

supplied  by  words  in  [  ].  children,     names    unknown,    Elizabeth 

For  the  formal  parts  of  affidavits,  gen-  and  Sally  Belougee&nd  three  small  boys 

erally,  consult  the  title  Affidavits,  vol.  of  Louis  Belougee,  names  unknown,  all 

I,  p.  548.  of  said  Skowhegan,  in  said   Skowhegan, 

Charging  part  of  complaint,  see  jw/ra,  are  infected  with  contagious  sickness, 

note  I,  p.  932.  and  they  therefore  request  you  to  issue 

In  Pinkham  v.  Dorothy,  55  Me.  135,  to  a  proper  officer  a  warrant  requiring 

the  complaint  asked  for  the  right  to  im-  him  to  remove  said  infected  persons, 

press   property   to  be  used  for  taking  and  to  impress  and  take  up  convenient 

care  of  persons  inflicted,  with  sickness  houses,  lodgings,   nurses   and   attend- 

dangerous  to  the  public  health.     It  was  ants,  and  other  necessaries  for  the  ac- 

held  that  under  the  law   the  impress-  commodation,  safety  and  relief  of  said 

ment  of  a  stage  coach  for  the  removal  persons. 

of  such  a   person    was  not  authorized  Dated  at  Skowhegan  this  jist  day  of 

by  the  Me.  Rev.  Stat.,  c.  14,  as  the  im-  March,  A.  D.  186.^. 

pressing   of   property  can  only  be  ex-  fames  B.  Dascomb,  \  Selectmen  of 

ercised     when    expressly    granted    by  Daniel  Snow,            )  Skowhegan." 

968  Volume  5. 


6713.  CRIMINAL  COMPLAINTS.  6713. 

usually  taken,  and  let  the  same  there  remain  during  said  close  time  as 
required  by  said  statute,,  to  wit:  during  the  time  between  sunrise  on 
Saturday  morning  of  the  tenth  day  of  May  aforesaid  and  sunrise  on 
the  following  Monday  morning  of  the  twelfth  day  of  May  aforesaid, 
but  did,  then  and  there  during  said  close  time  keep  the  part  of  said 
weir  where  the  fish  are  usually  taken  as  aforesaid  closed,  against  the 
peace  of  said  State  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided.  Wherefore  the  said  William  Vannah  prays 
that  the  said  William  Turnbull  and  Edward  Harrington  may  be  ap- 
prehended and  held  to  answer  to  this  complaint  and  further  dealt 
with  relative  to  the  same  as  the  law  directs.  Dated  at  Nobleboro  in 
the  county  of  Lincoln  this,  fifteenth  day  of  May^  a,  d.  i%8^. 

William  Vannah. 
State  of  Maine,  Lincoln,  ss. 

On  tht  fifteenth  day  of  May,  a.  d.  i8^^  the  above  named  William 
Vannah  personally  appeared  and  made  oath  to  the  truth  of  the  fore- 
going complaint 

Before  me,  Thomas  J,  York^  trial  justice. 

Form  No.  6713.' 

(Precedent  in  LaRoe  v.  Roeser,  8  Mich.  537.)* 

State  of  Michigan,  county  of  Saginaw,  ss:  Garrett  Freeland^  of 
Tittabawassee,  in  said  county,  on  his  oath  complains,  that  on  the  ISth 
day  oi  June,  iSo9,  James  LaRoe,  Jefferson  Chapman,  and  Joe  Hackney ^ 
without  his,  the  said  Garrett  Freeland' s  consent,  or  any  other  authori- 
ty, forcibly  entered  his  house  on  the  premises  occupied  by  him,  on 
the  southwest  corner  of  section  sixteen  in  said  township,  and  on  his 
command  to  leave  and  quit  the  said  house,  refused  to  do  so,  and  did 
not  go,  and  the  said  James  LaRoe  drew  a  pistol  from  his  pocket,  and 
pointed  it  towards  this  complainant,  threatening  to  shoot  him,  and 
said  complainant;  and  the  said  Jefferson  Chapman  raised  a  club 
against  the  said  complainant,  saying  that  he, would  fix  him,  and 
knock  his  old  brains  out;  against  the  peace  of  the  said  people, 
and  against  the  form  of  the  statute  in  such  case  made  and  provided; 
for  which  assault  the  said  Garrett  Freeland  prays  that  the  said  James 
LaRoe,  Jefferson  Chapman,  and  Joe  Hackney,  may  be  apprehended  to 

1.  Most   be  reduced  to  writing,    and  2.  This  complaint  was  held  to  be  suf- 

must  show  in  substance  the   commis-  ficient.     Consult  also  supra.  Form  No. 

sion  of  such  an  offense  as  the  justice  6682,  and  notes  thereto, 

can  hear  and  try.     It  must  allege  the  Charging  part  of  complaint,  see  supra, 

time  and  place  of  the  offense,  so  that  note  i,  p.  932. 

it  may  appear  whether  or  not  the  prose-  For  example  of  complaint  in  this  state, 

cution  is  barred  by  the  statute  of  limi-  lor    assault,   see   Form   No.   2414;    for 

tations,    and    whether    the     act     was  bastardy,  see  Forms   Nos.   3941.    39531 

committed    within   the   legal   jurisdic-  for   carrying   weapons,  see  Form  No. 

tion  of  the  justice.     How.  Anno.  Stat.  5157. 

Mich.  (1882),  §  7093;  People  v.  Gregory,  3.  May  be  made  by  a  constable  or  other 

30  Mich.  371.  person,  and  must  be  signed  by  the  com- 

For  the  formal  parts  of  affidavits,  gen-  plainant.     How.    Anno.    Stat.     Mich, 

erally,    consult    the    title   Affidavits,  (1882),  §  7093. 
vol.  I,  p.  548. 

969  Volume  5. 


6714.  CRIMINAL  COMPLAINTS.  6715. 

answer  to  his  complaint,  and  further  dealt  with  relative  to  the  same 
as  law  and  justice  may  require. 

Garrett  Freeland. 
Sworn  to  and  subscribed  before  me,  this  IJfth  day  of  Jum^  i859. 

Otto  Roeser^  Justice  of  the  Peace. 

Form  No.  6714.* 

State  of  Mississippi^  \ 
Winston  County.        \ 

Personally  appeared  before  me  Abraham  Kent,  a  justice  of  the 
peace  in  and  for  said  county,  and  in  Justice's  District  No.  four,'^ 
Richard  Roe,  who  being  duly  sworn,  deposes  and  says,  that  John  Doe, 
on  or  about  the  tenth  day  oi  March,  i896,  at  and  in  said  county  and 
justice's  district  aforesaid,  did  (^Here  set  forth  the  facts  constituting 
the  offense)?  against  the  peace  and  dignity  of  the  state  of  Mississippi. 

Richard  Roe. 

Sworn  to  and  subscribed  before  me  this  eleventh  day  of  March,  i896. 

Abraham  Kent,  J.  P. 

Form  No.  6715.* 

State  of  North  Dakota,  \  In  Justice  Court,  before  Abraham  KenL 

County  of  Burleigh.       \      '  Justice  of  the  Peace. 

The  State  of  North  Dakota  ) 

against  >•  Criminal  Complaint. 

John  Doe.  ) 

Richard  Roe,  being  first  duly  sworn,  says  that  on  t\\^  second  d.^.^  of 
March,  a.  d.  \W8,  at  said  county,  the  above  named  defendant  did 
ijlere  state  the  offense),^  against  the  peace  and  dignity  of  the  State  of 
North  Dakota. 

Wherefore  complainant  prays  that  defendant  John  Doe  may  b: 
arrested  and  dealt  with  according  to  law. 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  this^M  day  oi  March,  i898. 

Abraham  Kent,  Justice  of  the  Peace. ^ 

1.  Mississippi.  —  Affidavit  must  be  supra.  Form  No.  6692,  and  notes 
filed  to  procure   issuance  of  warrant,     thereto. 

Anno.  Code  (1892),  §  2421;  Bigham  v.  For    the    formal    parts    of    affidavits, 

State,  59  Miss.  529.  generally,  consult  the  title  Affidavits, 

For  the  formal  parts  of  affidavits,  gen-  vol.  i,  p.  548. 

erally,  consult  the  title  Affidavits,  vol.  5.  Must  state  facts   constituting   the 

I,  p.  548.  offense   in   ordinary  and   concise   lan- 

2.  Justices'districtin  which  the  offense  guage,  with  sufficient  certainty  and 
is  committed  should  be  stated.  Miss,  with  such  particulars  of  time,  place, 
Anno.  Code  (1892),  §|  2420,  2421.  person  and  property  as  will  enable  a 

3.  Charging  part  of  complaint,  see  person  of  common  understanding  to 
supra,  note  i,  p.  932.  know  what  is  intended  and  to  authorize 

4.  North  Dakota. —  Rev.  Codes  (1895),  the  court  to  pronounce  judgment.  N. 
§§  6738-6742.  Section  6742  prescribes  Dak.  Rev.  Codes  (1895),  §  6740.  See 
the  form  of  the  complaint  substantially  also  supra,  note  i,  p.  932. 

as   set  out  in   the  text.     Consult  also        6.  Must  be  sworn  to  before  the  justice. 

N.  Dak.  Codes  (1895),  §  6741. 
970  Volume  5. 


6716.  CRIMINAL  COMPLAINTS.  67 1 7. 

Form  No.  6716.' 

In  the  Justice's  Court  for  the  Precinct  of  Blank,  County  of  Linn^ 
and  State  of  Oregon. 

The  State  of  Oregon,  plaintiff,  \ 

against  V  Complaint. 

John  Doe,  defendant.         ) 

Richard  Roe  is  accused  ^y  John  Doe  by  this  complaint,  of  the  crime 
of  {name  of  offense),  committed  as  follows: 

The  saidyi7,^«  Doe,  on  the  second  did^y  oi  March,  a.  d.  \Z98,  in  the 
county  of  Linn  and  state  of  Oregon  {Here  state  facts  constituting  the 
offense  charged)^  contrary  to  the  statute  in  such  cases  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  state  of  Oregon. 

Dated  at  Albany,  in  the  county  of  Linn  and  state  of  Oregon,  the 
fifth  day  oi  March,  a.  d.  \W8. 

Richard  Roe. 
State  of  Oregon,      \ 
County  of  Linn,       \  ^^' 

I,  Richard  Roe,  being  duly  sworn,  say  that  I  am  the  person  com- 
mencing the  within-entitled  action,  and  that  the  complaint  therein  is 
true,  as  I  verily  believe. 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  the  fifth  day  oi  March,  a    d 
i%98. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6717.* 

In  Justice's  Court,     \ 
Precinct  No.  Three,  V  No.  S3. 
Freestone  County.       ) 

In  the  name  and  by  the  authority  of  the  State  of  Texas: 

Before    me,  the   undersigned    authority,  on    this   day  personally 

appeared  Richard  Roe,  who,  after  being  by  me  duly  sworn,  on  oath 

deposes  and  says  that  heretofore,  to  wit,  on  or  about  the  second  day 

of  March,  iS98,*  at  Fairfield,  in  the  county  oi  Freestone,^  and  state  of 

1.  Oregon. —  Hill's  Anno.  Laws  (1892),  2.  Charging  part    of    complaint,    see 
^   2132,   providing   that  in   a  justice's  supra,  note  i,  p.  932. 
court  a  criminal  action  is  commenced  3.   Texas.  —  Code  Crim.  Proc.  (1895), 
by  the  filing  of  the  complaint  therein,  art.   936  et  seq.       Consult   also   Form 
verified  by  the  oath  of  the  person  com-  No.  6701,  supra,  and  notes  thereto, 
mencing  the  action,  who  is  thereafter  For  the  formal  parti  of  affidavits,  gen- 
known  as  the  private  prosecutor.    Con-  erally,  consult  the  title  Affidavits,  vol. 
suit  also  Form    No.   6695,   supra,   and  i,  p.  548. 
notes  thereto.  Muat  be  Bedaced  to  Writing.  —  Tex. 

Complaint  must  be  deemed  an  indict-  Code  Crim.  Proc.  (1895),  art.  937. 

ment  within   the  meaning  of  the   pro-  4.  Time.  —  That  offense  is  not  barred 

visions  of  chapter  VIII  of  the  Code  of  by   limitation    must   appear   from   the 

Criminal   Procedure,  prescribing  what  date  of  the  offense  stated  in  the  com- 

is  sufficient  to  be  stated  in  such  plea  plaint.     Tex.  Code  Crim.  Proc.  (1S95), 

and    the    form   of  stating    it.      Hill's  art.  938. 

Anno.  Laws  Oregon  (1892).  §  2133.  5.  County.  —  That  offense  was   com- 

For  the  formal  parts  of  aflSdavits,  gen-  mitted    in    the   county    must   appear, 

erally,   consult    the   title    Affidavits,  Tex.  Code  Crim.  Proc.  (1895),  art.  938. 
vol.  I,  p.  54S. 

971  Volume  5. 


6718.  CRIMINAL  COMPLAINTS.  6719. 

Texas.,  one  John  Doe}  of  said  county  and  state,  and  then  and  there 
unlawfully  (^State  offense  charged  and  ihe  facts  constituting  it),^  contrary 
to  the  form  of  the  statute  in  such  cases  made  and  provided,  and 
against  the  peace  and  dignity  of  the  state. 

Richard  Roe. 
Sworn  to  and  subscribed  before  me  by  said  Richard  Roe  this  fifth 
day  oi March,  \W8. 

Abraham  Kent,  Justice  of  the  Peace, 

Precinct  No.  Three,  Freestone  county,  Texas. 

Form  No.  6718.' 

(Sanb.  &  B.  Anno.  Sut.  Wis.  (1889),  §  4741.) 

State  of  Wisconsin,  ) 

County  of  Pierce,      j 

The  State  of  Wisconsin, 

against 

John  Doe. 

Richard RoehtvcigdixAy  sworn,  says  that  on  the  second diZis oi March, 
in  the  year  i%98,  at  said  county,  {name  of  accused  or  alia s^  dixA  {state 
the  crime^,^  against  the  peace  and  dignity  of  the  state  of  Wisconsin. 

Richard  Roe. ^ 
Subscribed  and  sworn  to  before  me,  this  fifth  day  oi  March,  iS98. 

Abraham  Kent,  Justice  of  the  Peace. 

Form  No.  6719.* 

(Wyoming  Rev.  Stat.  (1887),  §  3623.) 

Territory  of  Wyoming,  \  . 

County  of  Johnson?       \ 
Territory    of  Wyoming  ) 
against  > 

John  Doe,  defendant.^    ) 

Before  Justice  Abraham  Kent.^ 

1.  Name  of  accused,  if  known,  must  be  4.  Charging  part  of  complaint,  see 
stated;   if   unknown,   he   must   be  de-     supra,  note  i,  p.  932. 

scribed  if  practicable.  Tex.  Code  6.  Must  be  signed  and  sworn  to  by  the 
Crim.  Proc.  (1895),  art.  938.  complainant.     Sanb.  &  B.  Anno.  Stat. 

2.  Offense  charged  must  be  stated  in     Wis.  (1889),  i^  4740. 

the    complaint    in     intelligible    words.  6.    Wyoming. —  Rev.    Stat.   (1887),    j^ 

Tex.  Code  Crim.  Proc.  (1895),  art.  938.  3623.     Consult   also    Form     No.    6707, 

Charging  part  of  complaint,  see  supra,  supra,  and  notes  thereto, 

note  I,  p.  932.  For  the  formal  parts  of  affidavits,  gener- 

3.  Wisconsin,  —  Sanb.  &  B.  Anno,  ally,  consult  the  title  Affidavits,  vol. 
Stat.  (1S89),  §  4740  et  seq.     Consult  also  i,  p.  548. 

Form     No.     6706,    supra,    and     notes  7.  Most  contain  name  of  county  where 

thereto.  the     information    is    filed.      Wyoming 

For  the  formal  parts  of  affidavits,  gen-  Rev.  Stat.  (1887),  §  3622. 

erally,    consult    the   title   Affidavits,  8.  Must  contain  name  of  the  defendant  if 

vol.  I,  p.  548.  known,  and  if  not,  then   such  name  as 

Must  be  B«duced  to  Writing.  —  Sanb.  may   be    given   by   the    complainant. 

&  B.  Anno.  Stat.  Wis.  (1889),  §  4740.  Wyoming  Rev.  Stat.  (1887),  §  3622. 

Made  on  information  and  belief  may  be  9.  Must  contain  name  of  justice  before 

sufficient.     State    v.    Davie,    62    Wis.  whom  it  is  filed.     Wyoming  Rev.  Stat. 

305.  (1887).  §3622. 

972  Volume  5. 


6720. 


CRIMINAL  COMPLAINTS. 


6720. 


The  defendant  is  accused  of  the  crime  or  offense.  For  that  the 
defendant  on  the  tenth,  day  of  March,  a.  d.  i896,i  at  the  town  of 
Buffalo  in  the  county  aforesaid  (^Here  state  the  iMtor  information  con- 
stituting the  offense  as  in  the  indictment).^ 

Richard  Roe.^ 
Subscribed  and  sworn^  to  before  me  this  tht fifteenth  day  of  March^ 
iS96. 

Abraham  Kent,  Justice  of  the  Peace. 

2.  In  Other  Inferior  Courts.* 


a.  Chairman  of  Board  of  Trustees. 


1.  Time  and  Place.  —  The  information 
must  contain  a  statement  of  the  facts 
constituting  the  offense  in  ordinary  and 
concise  language,  and  the  time  and 
place  of  the  commission  of  the  offense, 
as  near  as  may  be.  Wyoming  Rev. 
Stat.  (1887),  §  3622. 

2.  Charg^g  part  of  complaint,  see 
supra,  note  i,  p.  932. 

3.  Most  be  salMicribed  and  sworn  to. 
Wyoming  Rev.  Stat.  (1887),  §  3621. 

4.  Offenses  Triable  in  Other  Inferior 
Courts.  —  The  complaint,  affidavit  or 
information  in  mayors'  courts,  police 
courts,  and  other  inferior  courts  having 
jurisdiction  similar  to  that  exercised  by 
justices  of  the  peace  in  the  trial  of  mis- 
demeanors and  petty  offenses,  is  simi- 
lar in  all  material  respects  to  criminal 
complaints  in  justices'  courts,  except 
that  the  complaint  must  charge  an 
offense  within  the  jurisdiction  of  the 
particular  court.  Examples  of  such 
complaints  are  given  in  the  text  in 
Forms  Nos.  6718  to  6733. 

Alabama.  — Crim.  Code  (1886),  §4204. 

Arizona.  —  Pen.  Code  (1887),  §  2208. 

Arkansas. — Sand.  &  H.  Dig.  (1894), 
§  5291  etseq. 

California.— Pen.  Code  (1897),  §  1426. 

Colorado.  —Mills'  Anno.  Stat.  (1891), 
§  3525. 

Connecticut.  —  Gen.  Stat.  (1888),  §  709. 

District  of  Columbia.  — Comp.  Stat. 
(1894),  p.  478,  8  10. 

Florida.— RQV.S\.dit.  (1892),  g§  2847, 
2871. 

Georgia.  —  3  Code  (1895),  §  735  et  seq. 

Idaho.  —  Laws  (1891),  p.  163,  §  Ii. 

Illinois. — Starr  &  C.  Anno.  Stat. 
(i8g6),  p.  720,  par.  69;  p.  792,  par.   199. 

Indiana.  —  Horner's  Anno.  Stat. 
(1896),  §§  3062,  3206. 

Iowa.  —  Code  (1897),  §§  688,  691, 692, 
5182. 

Kansas.  —  I  Gen.  Stat.  (1897),  p.  364, 
8  133  etseq.,  p.  424,  §  97  etseq.,  p.  465. 
§  91  <•/  seq. 


Code 


Kentucky.  —  Bullitt's      Crim. 
(1895),  §  13,  subd.  4,  §55  312.  318. 

Maine.  —  Stat.  (1882),  c.  132.  See  also 
Form  No.  2409  for  a  precedent  of  a 
complaint  in  the  municipal  court. 

Massachusetts.  —  Pub.  Stat.  (18S2),  c. 

154- 

Michigan.  —  How.  Anno.  Stat. (1882), 
§§  2497,  2498, 2839,  (Supp.  1890)  659ia2. 

Minnesota. — Stat.     (1894),    §§     1074. 

1357.  1391- 

Mississippi.  —  Anno.  Code  (1892), 
§  3001. 

Missouri.  —  Rev.  Stat.  (1889),  §§  1063, 
1289,  1552,  1555  et  seq.,  1634,  1676, 
1685. 

Montana.  —  Pen.  Code  (1895),  §|  4911, 
4912. 

Nebraska.— Comp.  Stat.  (1897),  §§ 
1268,  6984. 

Nevada.  — Gen.  Stat.  (1885),  §  2452 
et  seq. 

New  Hampshire.  — PMh.  Stat.  (1891), 
c.  248,  %1  et  seq. 

New  Jersey. — Gen.  Stat.  (1895),  p. 
1119,  ^  I,  p.  I163.  §  217,  p.  2481,  §  I,  p. 
2483,  §  4,  p.  2487.  S  32. 

New  Mexico. — Comp.  L.  (1884),  § 
1628. 

New  York.  —  Cook's  Code  Crim. 
Proc,  §§  74.  699,  741-  „       „ 

North  Carolina.— Code  (1883).  §3818. 

North  Dakota.  — Rev.  Codes  (1895), 
g§  2193,  2194,  2203. 

Ohio.  —  B&les'  Anno.  Stat.  (1897),  ^J^ 
1787,  1831.  7134.7135- 

Oklahoma.  — SlAl.  (1893),  §^  606.607, 
614,  692,  707,  1562;  Laws  (1895),  p.  203, 

§36. 

Oregon.  — Const.,  art.  VH.  §1. 
Pennsylvania.  —  Pepp.    &     L.    Dig. 

(1894).  p.  3497.  §  I  ^t  "1- 

Rhode  Island.— Gen.  Sl&\..   (1896),   c. 

229. 

Tennessee.  — Code  (1896).  §  6926. 

7V;c<7j.  —  Code  Crim.  Proc.  (1895), 
arts.  98,  930. 

Utah.  —  Rev.  Stat.  (1898),  §  239. 


973 


Volume  5. 


6720.  CRIMINAL  COMPLAINTS.  6721. 

Form  No.  6720.' 

(Mo.  Rev.  Stat.  (1889),  §  1685.) 

County  of  'BaZn,   \  ss.      ^^^^^^  ^^^T  ^\  ^^4'''''  ^^^^^"^^"  ^^  ^^^ 
Town  of  Liberal.     J  ^o^^"^  ^^  Trustees. 

The  Zlray/z  <?/  Liberal,  plaintiff, 
against 
John  Doe,  defendant. 
John  Doe  To  the  Town  of  Liberal,  Dr. 

To  violation  of  town  ordinance  No.  32,  in  relation  to  {Here  state 
to  what  the  ordinance  violated  relates,  whether  it  be  in  relation  to  disturb- 
ing the  peace,  or  any  other  violation,  as  the  case  may  be^,  one  hundred  dol- 
lars. In,  this,  to  wit,  that  the  said  John  Doe,  on  the  second  day  of 
March,  i898,  at  the  town  of  Liberal  and  within  the  limits  thereof,  did 
then  and  there  unlawfully  (^Here  state  in  brief  and  concise  language  the 
facts  constituting  the  offense),"^  contrary  to  the  said  ordinance  in  such 
cases  made  and  provided,  and  against  the  peace  and  dignity  of  said 
town  of  Liberal. 

'  Thomas  W.  Martin^ 
Town  Attorney. 
Thomas  W.  Martin  makes  oath  and  says,  that  the  facts  and  alle- 
gations contained  in  the  foregoing  complaint  are  true  according  to 
the  best  knowledge,  information  and  belief  of  the  affiant. 

Thomas  W.  Martift. 
Subscribed  and  sworn  to  before  me  X.\\\?,  fifth  day  of  March,  iS98. 

George  H.  Walser, 
Chairman  of  the  Board  of  Trustees. 

b.  City  Court. 

Form  No.  6721. 
(Precedent  in  Beaumont  v.  Dallas,  34  Tex.  Crim.  Rep.  68.)* 

Virginia.  —  Code  (1887),  ^  4106.  lar  policeman,  need  not  be  in  writing,  if 

Washington, —  i   Hill's    Anno.   Stat,  the  defendant  be  present  in  court  and 

(1891),  §§  533,  612,  657,  691;  Ballinger's  in  custody,  but  in  every  other  case  the 

Anno.  Codes  &  Stat.  (1897),  §§  752,  909  complaint    shall    be    in    writing,   and 

et  seq.,  962,  1036.  sworn  to  before  the  warrant  be  issued 

IVest  Virginia,  — Code  (l8gi),  p.  430,  for  the  arrest  of  the  defendant. 

§  39.  For  formal   parts  of  affidavits,  gener- 

IVisconsin.  —  Sanb.  &  B.  Anno.  Stat,  ally,  consult  the  title  Affidavits,  vol.  i, 

(1889),  §§  852df,  886,  p.  564,  ^  69,  pre-  p.  548. 

scribing  the  form  of  a  complaint  in  a  Justices  of  the  peace  have  like  juris- 

police  court.                    '  diction    upon    complaint   by   the   town 

1.  Jfissouri.  —  Rev.     Stat.    (1889),    §  constable,    or    marshal,  to    issue    war- 

1685,    providing   that  all   prosecutions  rants,  provided  every  such  application 

for  violating  any  town  ordinance  shall  be  sustained  by  the  affidavit  of  the  per- 

be  entitled  "  The  Town  of against  son  making  the  same.     Mo.  Rev.  Stat. 

,"  naming  the  town  and  the  per-  (1889),  ^  1676. 

son,    or    persons,     charged,    and     the  2.  Charging  Part.  —  See   supra,    note 

chairman    of    the    board    of    trustees  i,  p.  932. 

shall   state   in    his    docket    the    name  3.  Who   may   Make    the    Complaint.  — 

of  the  plaintiff,  the  nature  and  charac-  The  town  attorney,  the  town  marshal, 

ter  of  the  offense,  the  date  of  the  trial,  or  any  other  person  competent  to  testify 

the  names  of  all  witnesses  examined,  in  the  cause,  may  make  the  complaint, 

etc.      The  complaint,   when    made    by  Mo.  Rev.  Stat.  (1889),  §  1686. 

the  marshal,  assistant  marshal,  or  regu-  4.  This  was  a  complaint   in  the  city 

974  Volume  5. 


6722.  CRIMINAL  COMPLAINTS,  6722. 

The  City  of  Dallas 


.  No.  Jtlt. 
John  Doe. 
[State  of   Texas, 
Tarrant  County, 
City  of  Dallas. \^ 

Personally  appeared  before  me,  the  undersigned  authority,  C.  F. 
Durham,  who  after  being  duly  sworn,  deposes  and  says,  that  \^John 
Doe,]^  in  the  dty  of  Dallas,  and  the  state  of  Texas,  on  the  t7venty-first 
day  of  March,  a.  d.  i85^  and  before  the  filing  of  this  complaint,  was 
the  owner,  tenant,  and  lessee  of  a  house,  building,  and  edifice  then 
and  there  situated;  and  he,  the  said  \^John  Doe,y  did  then  and  there 
unlawfully  keep,  was  concerned  in  keeping,  and  knowingly  per- 
mitted to  be  kept  the  said  house,  building  and  edifice  for  prostitu- 
tion, where  prostitutes  were  then  and  there  permitted  by  the  said 
l/ohn  DoeY  to  resort  and  reside  for  the  purpose  of  plying  their 
vocation,  contrary  to  the  ordinance  in  such  cases  made  and  provided, 
against  the  peace  and  dignity  of  the  state. 

C.  F.  Durham. 
Sworn  to  and  subscribed  before    me    this   twenty-fourth    day   of 
March,  a.  d.  i8P^. 

M.  C.  Kahn, 
Clerk  of  the  City  Court,  City  of  Dallas,  Texas. 

e.  County  Court.* 

court  of  Dallas  charging  defendant  accusation  founded  thereon  may  con- 
with  keeping  a  disorderly  house.  See  sist  of  two  counts,  each  charging  one  of 
also  Form  No.  6717,  supra,  and  notes  the  offenses  set  forth  in  the  affidavit, 
thereto.  Consult  also  list  of  statutes  Hathcock  v.  State,  88  Ga.  91. 
cited  j«/ra,  note  I,  p.932.  Verification.  —  Where  the  affidavit  sets 
For  formal  parts  of  affidavits,  gen-  out  one  of  two  misdemeanors,  and  adds 
erally,  see  the  title  Affidavits,  vol.  i,  the  facts  concerning  the  other,  intro- 
p.  548.  ducing  these  facts  with  the  phrase 
1.  The  words  in  []  do  not  appear  in  "The  deponent  further  charges  and 
the  reported  case.  accuses  the  said  William  Hathcock 
Description  of  Defendant.  —  In  the  com-  with  misdemeanor  in  this,"  the  verifi- 
plaint  appearing  in  the  reported  case,  cation  of  the  affidavit  is  not  confined  to 
instead  of  "John  Doe,"  the  complaint  these  terms  of  accusation,  but  extends 
charged  that  "  Mrs.  Beaumont,  whose  also  to  the  facts  set  out  in  the  sub- 
given  name  is  to  affiant  unknown,  a  joined  statement  as  to  the  mode  of 
better  description  of  whom  affiant  can-  committing  the  misdemeanor.  Hath- 
not  give."  It  was  held  tlpat  under  the  cock  v.  State,  88  Ga.  91. 
Texas  Code  of  Criminal  Procedure,  2.  In  the  county  court  in  Alabama  the 
art.  236,  subd.  i,  requiring  that  the  affidavit  follows  the  same  form  sub- 
complaint  "must  state  the  name  of  the  stantially  as  in  the  justice's  court.  Ala. 
accused,  if  known,  and  if  not  known,  Crim.  Code  (1886),  §  4204.  See  Form 
must    give   some    reasonably    definite  No.  6710,  supra. 

description  of  him,"  the  complaint  was  In  Henderson  v.  State,  109  Ala.  40, 
insufficient.  appellant  was  convicted  under  a  corn- 
Charging  part,  generally,  see  supra,  plaint  made  before  the  judge  of  the 
note  I,  p.  932.  county  court,  the  complaint  being  as 
Charging  Two  Misdemeanors. —  An  affi-  follows:  "Before  me,  IV.  R.  De Loach, 
davit  on  which  an  accusation  is  founded  as  judge  of  the  county  court  in  and  for 
in  the  city  court  may  charge  two  mis-  said  county,  personally  appeared  Wood- 
demeanors  of  the  same  class  as  com-  son  S.  Gulley,  who  being  by  me  duly 
mitted    by   the   same  person,  and  the  sworn,  says  on  oath,  that  he  has  prob- 

975  Volume  5. 


6722.  CRIMINAL  COMPLAINTS.  6723. 

Form  No.  6722.' 

In  Court  of  County  /udee,  ^  Marion  County. 
State  of  Florida,      ) 
County  of  Marion.  ) 

Before  me,  Richard  Johnson,  county  judge  in  and  for  said  county, 
personally  came  Richard  Roe,  who  being  duly  sworn,  says  that  on  the 
tenth  day  of  March,  a.  d.  18P6,  in  the  county  aforesaid,  on^  John  Doe 
did  (^Here  the  nature  of  the  offense  committed  must  be  stated  and  the  cir- 
cumstances attending  its  commission')?. 

Richard  Roe. 
Sworn  to  and  subscribed  before  me  this  eleventh  day  of  March,  iS96. 
Richard  Johnson,  County  Judge  for  Marion  County. 


Form  No.  6723.* 

Georgia,  Bibb  County. 

Personally  came  Richard  Roe,  who  on  oath  saith  to  the  best  of  his 
knowledge  and  htWti  John  Doe  did  on  the  tenth  day  of  March  in  the 
year  one  thousand  eight  hundred  and  ninety-six,  in  the  county  afore- 
said, commit  the  offense  of  (^Here  must  be  set  forth  the  offense  and  a  state- 
ment of  the  facts  constituting  //),^and  this  deponent  makes  this  affidavit 
that  a  warrant  may  issue  for  his  arrest. 

Richard  Roe. 

Sworn  to  and  subscribed  before  me  this  eleventh  day  of  March,  iS96. 
Richard  Johnson,  County  Judge  of  Bibb  County.* 

able  cause  for  believing  and  does  believe  3.  Charging   Part.  —  See  supra,   note 

that  before  the  making  of  this  affidavit  i,  p.  932. 

Frank  Henderson,  with  the  purpose  to  4.  Geor^^ia. — 3  Ga.  Code  (1895),  §  735 
hinder,  delay,  and  defraud  affiant,  who  ei  seq.\  Dickson  v.  State,  62  Ga.  586. 
had  a  lawful  and  valid  claim  thereto  Consult  also  list  of  statutes  cited  j«/;-t?, 
under  a  written  instrument,  lien  created  note  i,  p.  932.  See  also  Form  No. 
by  law,  for  rent  or  advances,  or  other  6709,  supra,  and  notes  thereto, 
lawful  and  valid  claim,  verbal  or  writ-  The  affidavit  before  a  county  court 
ten,  did  sell,  or  remove  personal  prop-  shall  be  in  the  form  prescribed  by  3  Ga. 
erty,  consisting  of  fourteen  bushels  of  Code  (1895),  §  884.  See  also  supra, 
corn,  of  the  value  of  ten  dollars,  the  said  Form  No.  6671,  and  notes  thereto. 
Frank  Henderson  having,  at  the  time  a  For  the  formal  parts  of  affidavits,  gen- 
knowledge  of  the  existence  of  such  erally,  consult  the  title  Affidavits,  vol. 
claim.  I,  p.  548. 

W.  S.  Gulley."  5.   Need  not  charge  the  offense  abso- 

Information  and  belief  may  support  a  lately  and  without    qualification,    but 

complaint  in  the  county  court  in  Texas,  only  to  the  best  of  the  affiant's  knowl- 

Dean  v.  State,  88  Tex.  290.  edge  and  belief.     Thomas  v.  State,  91 

1.  Florida.  —  Rev.    Stat.    (1892),    §^  Ga.  207. 

2847,2871.     Consult  also  list  of  statutes  Charging  Part.  —  See    supra,  note    i, 

cited  supra,  note .  p. .    See  also  p.  932. 

Form  No.  6670,  supra,  and  notes  thereto.  6.  Neither  attested  by  an  officer  author- 

For  the  formal  parts  of  affidavits,  gen-  ized  to  administer  oaths   nor  purport- 

erally.  consult  the  title  Affidavits,  vol.  ing  to  be  sworn  to  in  open  court  is  void 

I,  p.  548.  as  the  basis  of  a  criminal   proceeding. 

2.  Jurisdiction.  —  See  Rev.   Stat.   Fla.  Scroggins  v.  State,  55  Ga.  380. 
(1892),  §§  2833,  2847. 

976  Volume  5. 


6724.  CRIMINAL  COMPLAINTS.  6725. 

Form  No.  6724.* 

In  the  County  Court  of  Colfax  County,  Nebraska. 
The  state  of  Nebraska   \ 

against  V  Complaint  for  {name  of  offense). 

John  Doe.  ) 

State  of  Nebraska,  ] 
County  of  Colfax.   ) 

The  complaint  and  information  of  Richard  Roe,  of  the  county  afore- 
said, made  in  the  name  of  the  state  of  Nebraska,  before  me,  the 
county  judge  within  and  for  said  county,  this  fifth  day  of  March, 
A.  D.  i?>98,  who  being  duly  sworn,  on  his  oath,  says  that  one  John  Doe, 
on  the  second 6a.y  of  March,  a.  d.  i895,  in  the  county  aforesaid,  then  and 
there  being,  did  then  and  there  {Here  state  off ense  charged  and  the  facts 
constituting  the  same)^  contrary  to  the  form  of  statutes  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the  people 
of  the  state  of  Nebraska. 

Richard  Roe. 

Subscribed  in  my  presence,  and  sworn  to  before  me,  this  fifth  day 
of  March,  i898. 

Carroll  Johnson,  County  Judge. 

d.  Mayor's  Court. 

Form  No.  6725.' 
The  State  of  Texas, 
Freestone  County, 
Town  of  Fairfield. 
In  the  name  and  by  the  authority  of  the  state  of  Texas: 

Before  me,  the  undersigned  authority,  on  this  day  personally 
appeared  Richard  Roe,  who,  after  being  by  me  duly  sworn,  on  oath 
deposes  and  says  that  heretofore,  to  wit,  on  or  about  the  second  day 
of  March,  iS98,  and  prior  to  the  filing  of  this  complaint,  in  the  toivn 
of  Fairfield,  county  oi  Freestone  and  state  of  Texas,  ont  John  Doe 
did  then  and  there  unlawfully  {Here  state  offense  charged  and  the  facts 
constituting  the  same),*  contrary  to  the  ordinances  of  said  town  in 

1.  Nebraska.  —  Comp.  Stat.  (1897),  before  a  mayor  for  a  violation  of  an 
§  6984.  Consult  also  list  of  statutes  ordinance  was  headed:  "  State  of 
cited  j«/ra,  note  4,  p.  973,  and  Form  No.  Iowa,  City  of  Washington,  z/.  Charles 
6687,  supra,  and  notes  thereto.  Smouse,"  it  was  held  that  the   words 

For  the  formal  parts  of  affidavits,  gen-  "  State  of  Iowa  "  were  surplusage  and 

erally,   consult    the    title  Affidavits,  did  not  make  the  prosecution  one  under 

vol.  i,  p.  548.  the    state   law.     State   v.    Smouse,   49 

2.  Charging  Part.  —  See    supra,    note  Iowa  634. 

I,  p.  932.  4.  Charging  Part.  —  See  supra,  note 

3.  Texas.  —Code  Crim.   Proc.  (1895),     i,  p.  932. 

%<)i<^  et  seq.     See  also   Form   No.  6717,  Indiana.  —  In  Schwab  r.  Madison,  49 

supra,  and  notes  thereto.     Consult  also  Ind.    529,    the    complaint    before    the 

list    of    statutes    cited  supra,    note    4,  mayor  was  as  follows: 

p   973.  "  The  State  of  Indiana, 

For  the  formal  parts  of  affidavits,  gen-  Jefferson  County,  ss. 

ally,  consult   the  title  Affidavits,  vol.  The  City  of  Madison. 

1,  p.  548.  Before  mcjohn  Marsh,  mayor  of  the 

Title.  — Where  an  information  in  Iowa  city  of  Madison  and  ex  officio  a  justice 

5  E.  of  F.  P.  — 62.                         977  Volume  5. 


6725. 


CRIMINAL  COMPLAINTS. 


6725. 


such  cases  made  and  provided,  and  against  the  peace  and  dignity  of 
the  state. 

Richard  Roe. 
Sworn  to  and  subscribed  before  me  by  said  Richard  Roe.,  this  fifth 
day  oi March.,  a.  d.  \W8. 

William  M.  White, 
Mayor  of  the  To7vn  of  Fairfield,  Freestone  County,  Texas. 


of  the  peace  in  and  for  said  city  and 
county,  personally  came  y^^«  W.  Gray- 
son, who,  being  duly  sworn,  deposeth 
and  sailh  that,  on  the  j8th  day  of  Decem- 
ber, l?>7j,  at  said  city  and  county,  Will- 
iam Schwab,  as  affiant  very  believes, 
did  commit  an  act  of  public  indecency 
in  Spring  Dale  Cemetery  Graveyard. 

John  W.  Grayson. 

Subscribed  and  sworn  to  this  i8th 
day  of  December,  iS/j. 

John  Marsh, 
Mayor  and  ex  officio 
Justice  of  the  Peace." 

It  was  held  in  this  case  that  the  com- 
plaint was  so  defective  that  the  prose- 
cution might  have  been  dismissed  on 
that  account.  No  copy  of  the  ordi- 
nance, or  section  of  the  ordinance  vio- 
lated, was  set  out  in  the  affidavit,  as  is 
required;  nor  did  the  affidavit  conform 
to  the  law  by  stating  the  number  ®f 
the  section  charged  to  have  been  vio- 
lated, as  required  by  law.  Schwab  v. 
Madison,  49  Ind.  331  citing.  Green  v. 
Indianapolis,  22  Ind.  192,  25  Ind.  490; 
Whitson  V.  Franklin,  34  Ind.  392. 

Michigan.  —  In  Napman  v.  People, 
19  Mich.  352,  defendant  was  charged 
before  the  recorder's  court  of  the  city  of 
Detroit  on  the  complaint  of  Patrick 
Keenan,  "that  at  the  city  oi  Detroit, 
aforesaid,  on  the  seventeenth  day  of 
April,  A.  D.  one  thousand  eight  hun- 
dred and  sixty-eight,  within  the  cor- 
porate limits  of  said  city,  one  John 
Napman,  a  duly  licensed  omnibus 
agent,  on  the  arrival  of  railroad  cars 
in  the  city  of  Detroit,  did  then  and 
there  unlawfully  and  wilfully  approach 
within  twenty  feet  of  the  depot,  when 
said  cars  had  stopped  running,  within 
fifteen  minutes  thereafter,  said  John 
Napman,  omnibus  agent  as  aforesaid, 
not  being  requested  by  any  person  to 
remove  any  trunk  or  other  baggage 
from  said  depot,  to  the  evil  example  of 
all  others  in  like  case  offending,  and 
contrary  to  the  ordinances  of  said  city 
of  Detroit,  in  such  case  made  and  pro- 
vided." This  complaint  was  held  to 
be  defective  in  not  averring  that  the 
defendant  was  then  acting  in  the  ca- 

9' 


pacity  of  porter  or  runner  for  a  hotel. 
Napman  v.  People,  19  Mich.  352.    • 

Kissonri.  —  In  Marshall  z/.  Standard, 
24  Mo.  App.  194,  the  defendant  was 
charged  with  the  violation  of  an  ordi- 
nance of  the  city  of  Marshall.  The 
complaint  was  made  by  the  city  mar- 
shal, and  was  verbal,  the  defendant 
being  at  the  time  in  court  and  under 
arrest.  The  charge  entered  of  record 
by  the  mayor  was  as  follows:  ''June 
20,  18^,  Joseph  W.  Bartlett,  city  mar- 
shal, informs  the  mayor  that  at  the  city 
of  Marshall,  on  the  twentieth  day  of 
June,  \%8^,  one  Geo.  W.  Standard,  now 
in  court  and  in  custody,  did  then  and 
there  forcibly  oppose  a  policeman,  to 
wit,  Phillip  Coiner,  deputy  marshal  of 
the  city  of  Marshall,  in  making  the 
lawful  arrest  oi  Abe  Allenberg,  and  then 
and  there  did  aid  the  said  .(^(^^^//d'w^ifrf, 
the  person  arrested,  to  escape  from 
said  Phillip  Coiner,  policeman  afore- 
said; contrary  to  tlie  form  of  the 
ordinances  of  said  city,  and  against  the 
peace  and  dignity  of  said  city  and 
the  state  of  Missouri."  It  was  held, 
the  allegation  "  contrary  to  the  form 
of  the  ordinances  of  said  city"  was  too 
indefinite,  as  from  such  statement  it 
would  not  be  known  under  what 
particular  ordinance  defendant  was 
charged. 

The  complaint  in  the  recorder's  court 
in  Missouri  is  similar  to  that  made  be- 
fore the  chairman  of  the  board  of 
trustees  in  villages.  Mo.  Rev.  Stat. 
(1889),  §  1555.  See  also  supra.  Form  No. 
6720. 

North  Carolina.  —  In  State  v.  Eason, 
114  N.  Car.  788,  the  affidavit  before  the 
mayor,  omitting  the  formal  parts  as 
amended,  was  as  follows:  "On  the  ^/j/ 
day  of  September,  \%gj,  before  me,  E.  M. 
Short,  mayor  of  Washington,  N^.  C,  per- 
sonally appeared  y.  P.  Christ,  who  be- 
ing duly  sworn,  complains  on  oath  and 
says,  that  Charles  Eason,  on  the  20th 
of  September,  i^Qj,  did  unlawfully  and 
wilfully  throw  dead  fish  in  the  Pamlico 
river,  in  said  town,  in  violation  of  the 
town  ordinance  No.  11,  of  the  town  of 
Washington,  in  force  in  said  town,  con- 
rS  Volume  5. 


6726. 


CRIMINAL  COMPLAINTS. 


6727. 


e.  Municipal  Court. 

Form  No.  6726.' 

Commonwealth  o\  Massachusetts. 

To  the  Justices  of  the  Municipal  Court  of  the  Charlestown  District, 
holden  in  said  district  in  the  city  of  Boston,  for  the  transaction  of 
criminal  business  within  and  for  the  county  of  Suffolk. 

Richard  Roe,  of  Boston,  in  the  county  of  Suffolk,  deputy  state  con- 
stable, on  behalf  of  the  Commonwealth  of  Massachusetts,  on  oath 
complains  that  one  John  Doe,  of  Boston,  in  the  county  of  Suffolk,  did 
on  the  tenth  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  aud  ninety-six,  at  the  city  of  Boston,  within  the  judicial 
district  of  said  court  in  the  county  of  Suffolk,  with  force  and  arms, 
{^Here  state  the  offense  committed  and  the  facts  constituting  the  offense 
charged),^  against  the  peace  of  said  commonwealth  and  the  form  of 
the  statute  made  and  provided. 

Richard  Roe. 

Suffolk,  ss.  Received  and  sworn  to  the  eleventh  day  of  March,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-six, 
before  said  court. 

John  Hancock,  Clerk. 

f.  Police  Court.' 


trary  to  the  statute  in  such  case  made 
and  provided,  and  against  the  peace 
and  dignity  of  the  state." 

Ohio,  —  A  form  of  an  affidavit  in 
criminal  proceedings  before  a  mayor  is 
set  out  in    Bates'  Anno.    Stat.   (1897), 

§  7135. 

Oregon. —  In  Nodine  v.  Union,  13 
Oregon  587,  it  was  held  that  in  a  prose- 
cution for  the  violation  of  a  city  ordi- 
nance prior  to  the  act  of  February  25, 
1885,  in  the  recorder's  court,  it  was  not 
sufficient  to  merely  refer  to  the  ordi- 
nance by  number,  but  the  ordinance 
should  be  set  out  or  recited. 

Vermont.  —  In  State  z/.  Bacon,  40  Vt. 
456,  the  complaint  before  the  recorder 
of  the  city  of  Burlington  is  set  out  in 
full.  The  complaint  was.  however, 
held  to  be  insufficient  for  want  of 
substance. 

1.  Massachusetts.  —  Pub.  Stat.  (1882), 
c.  154.  See  also  supra.  Form  No.  6681, 
and  notes  thereto.  Consult  also  list  of 
statutes  cited  supra,  note  4,  p.  973. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

2.  Charging  Part.  —  See  supra,  note 
1,  p.  932- 

Minnesota.  —  In  State  v.  Segel,  60 
Minn.  507   the  defendant  was  convicted 

9' 


in  the  municipal  court  of  Minneapolis 
of  dealing  in  second-hand  goods  with- 
out a  license,  in  violation  of  a  city  or- 
dinance, upon  a  complaint  that  he 
"  unlawfully  and  wrongfully  engaged 
in  the  business  and  occupation  of 
dealer  in  second-hand  goods,  to  wit, 
second-hand  furniture,  carpets,  stoves, 
and  divers  other  articles  and  things," 
at  a  certain  place  in  the  city  without 
having  first  obtained  a  license  so  to  do. 
The  conviction  was  sustained  on  ap- 
peal. 

3.  A  police  informing  officer's  complaint 
in  Vermont  may  be  as  follows: 
"  State  of  Vermont,  \  To  Abraham 
Windham  County,  ss.  \  Kent,  Esquire, 
one  of  the  justices  of  the  peace  within 
and  for  the  county  of  IVindham,  comes 
Clyde  Gulp,  police  informing  officer 
within  and  for  Bellows  Falls  Village 
Corporation,  in  the  town  oi Rockingham 
in  said  county,  in  his  own  proper  per- 
son, and  on  his  oath  of  office  complaint 
makes  that,  on  the  second  day  of  March, 
A.  D.  i89<P,  within  the  limits  of  said  Bel- 
lows Falls  Village  Corporation,  John  Doe, 
late  of  the  said  Bellows  Falls  Village  Cor- 
poration {Here  state  the  offense  charged 
and  the  facts  constituting  the  same),  con- 
trary to  the  form,  force  and  effect  of 
the  statute  in  such  case  made  and  pro- 
•9  Volume  5. 


6727.  CRIMINAL  COMPLAINTS.  6728. 

Form  No.  6727.' 

State  of  Colorado,      ) 

County  of  Park,       V  ss.     In  Police  Magistrate's  Court. 

Town  of  Fair  Play.  ) 

The  People  of  the  State  of  Colorado 
against 
John  Doe,  defendant. 
Richard  Roe,  being  duly  sworn,  on  his  oath  says  that  section  three  of 
ordinance  No.  ten  of  the  town  of  Fair  Play,  being  an  ordinance  entitled 
"An  Ordinance  (^giving  title  of  ordinance^  passed  and  approved  the 
second  day  oi  January,  a.  d.    i  85^,  has   been  violated,  and   that  this 
affiant  has  good  reason  to  believe  that  John  Doe  is  guilty  thereof,  in 
this :  That  the  said  John  Doe,  on  or  about  the  Jirst  day  of  March,  a.  d. 
\2>98,  at  the  town  of  Fair  Play,  in  the  county  of  Park,  and  state  of 
Colorado   (^Here   state  the  facts  constituting  the  violation  of  the  ordi- 
nance^^ against  the  peace  and  dignity  of  the  people  of  the  state  of 
Colorado? 

Richard  Roe. 
Subscribed  and  sworn  to  before  me  X^cix's  fifth  day  of  March,  a.  d.  jS98. 
Peter  Morrison,  Police  Magistrate,     (seal) 

Form  No.  6728.'' 
State  of  Illinois,    ) 
Green  County,        v  ss. 
City  of  Carrollton.  ) 

Richard  Roe,  of  said  city  of  Carrollton,  being  duly  sworn,  on  oath 

vided,  and  against  the  peace  and  dig-  ordinance   which    provided    that    "  no 

nity  of  the  state.  person  shall   be  or  remain    upon   any 

Clyde  Culp,  sidewalk,  etc.,  to  the  annoyance  of  any 

Police  Informing  Officer.  person,"  etc.,   pursuing  the  very  lan- 

The  witnesses  in  support  of  this  com-  guage  of  the  ordinance,  its  literal  terms 

plaint  are:  embracing  cases  not  within  its  equity 

Banks  Belk.  and  spirit,  need  not  necessarily  be  suffi- 

T.  M.  Hughes.  cient.     So   held    where    the    complaint 

fohn  Smith.  alleged  that  Goulding,  at  Portsmouth, 

Clyde  Culp,  on,  etc.,  was  and  remained  a  long  time 

Police  Informing  Officer.  upon  the  sidewalk  on  the  northerly  side 

The  within  complaint  was  exhibited  of  Market  square,  in  said  Portsmouth, 

to  me   this  fifth  day  of  March,   A.    D.  to  the  annoyance  and   disturbance  of 

l89<?,  and  process  then  issued.  all  persons  passing  and  repassing,  con- 

Abraham  Kent,  trary  to  the  form   of  the  ordinance  in 

Justice  of  the  Peace."  such  case  made  and  provided,  contrary 

1.  Colorado. — Mills' Anno.  Stat.  (l8gi),  to  the  form  of  the  statute,  etc. 

§S  3500  et  seq.,  3525.     See  also  supra,         3.  Conclusion. —  The  fact  that  the  com- 

Form    No.    6666,    and    notes    thereto,  plaint  in  a  justice  or  police  court,   for 

Consult  also  list  of  statutes  cited  jw/ra,  misdemeanor,   does  conclude  contrary 

note  4,  p.  973.  to    the    provisions   of    a    county    ordi- 

For  the  formal  parts  of  affidavits,  gen-  nance,  does  not  tend  to  prejudice  the 

erally,  consult  the  title  Affidavits,  vol,  substantial  rights  of  the  defendant,  and 

I,  p.  548.  the  defendant  may  be  punished  under 

2.  Charging   Fart.  —  See    supra,   note  the  penal  code.     Ex  p.  Mansfield,  106 
I,  p.  932.  Cal.  400. 

New  Hampshire.  —  In  State  v.  Gould-        4.  Illinois.  —Starr  &  C.  Anno.  Stat. 
ing,  44  N.  H.  284,  a  complaint,  under  an     (1896),  p.  720,  par.  69.     See  also  supra, 

980  Volume  5. 


6729. 


CRIMINAL  COMPLAINTS. 


6729. 


complains  and  charges  that  one  John  Doe  did  on  the  second  day  of 
March,  A.  D.  i89<?,  at  the  city  of  Carrollton  aforesaid,  violate  a  cer- 
tain ordinance  of  said  ^-/Vy  concerning  (Jlere  insert  title,  number  and 
reference  to  ordinance,  as  well  as  the  nature  of  the  act  or  omission  com- 
plained of\^  and  that  he,  the  said  Richard  Roe,  has  reasonable  grounds 
to  believe,  and  does  believe,  the  said  John  Doe,  charged  as  aforesaid, 
to  be  guilty  thereof  as  hereinbefore  set  forth. 

Richard  Roe. 
Subscribed    and  sworn  to  this  fifth   day  of  March,  a.   d.    i85*, 
before  me,  Peter  Morrison,  Police  Magistrate, 


Form  No.  6729.' 

(Precedent  in  Matter  of  Dassler,  35  Kan.  678.)* 


a 


Police  Court.    Set. 


The  State  of  Kansas, 
City  and  County  of  Leavenworth. 
The  City  of  Leavenworth 
v. 
C.F.  W.  Dassler. 

W.  D.  Shallcross,  being  duly  sworn,  deposes  and  says:  That  C.  F. 
W.Dasster  is  now  and  has  been  ever  sinc^  January  1,  1B84,  a  male 
resident  and  citizen  of  said  city  of  Leavenworth,  and  is  now  and  was 
during  all  of  said  time  between  the  ages  of  twenty-one  and  forty-five 
years,  [and]  a  registered  voter  of  said  city,  and  that  said  Dassler 


Form  No.  6673,  and  notes  thereto. 
Consult  also  list  of  statutes  cited  su- 
pra, note  4,  p.   973. 

For  the  formal  parti  of  affidavits, 
generally,  consult  the  title  Affidavits, 
vol.  I,  p.  548. 

1.  Charging    Part.  —  See   supra,   note 

I,  P-  932- 

2.  Kansas. — i  Gen.  Stat.  (1897),  p. 
364,  §  133  et  seq.,  p.  424,  §  97  et  seq.,  p. 
465,  §91  etseq.  See  also  supra.  Form  No. 
6676,  and  notes  thereto. 

Oklahoma.  —  Stat.  (1893),  §  609.  See 
also  Form  No.  6694,  supra,   and  notes. 

Consult  also  list  of  statutes  cited 
supra,    note  4,  p.  973. 

For  the  formal  parts  of  affidavits,  gen- 
erally, consult  the  title  Affidavits, 
vol.  I,  p.  548. 

Liheral  roles  should  be  applied  to  com- 
plaints filed  in  police  courts  for  viola- 
tion of  city  ordinances.  The  same 
strictness  of  pleading  is  not  required 
in  such  cases  as  in  prosecutions  for 
public  offenses  in  the  name  of  the  state 
by  information  or  indictment.  King- 
man V.  Berry,  40  Kan.  625. 

When  to  be  in  Writing.  —  When  made 
by  the  marshal,  assistant-marshal,  or 
regular  policeman,  need  not  be  in  writ- 
ing if  the  defendant  be  present  in  court 
and  in  custody;  but  in  every  other  case 


the  complaint  shall  be  in  writing  and 
sworn  to.  i  Kan.  Gen.  Stat.  (1897),  p. 
364,  I  137,  p.  424,  g  102,  p.  466,  g  99; 
Oklahoma  Stat.  (1893),  §  609 

3.  This  complaint  was  for  a  failure  to 
work  upon  the  streets,  alleys  and 
avenues  of  the  city,  or  to  pay  a  sum  of 
money  in  lieu  thereof.  Upon  convic- 
tion under  this  complaint,  defendant 
sought  a  discharge  under  a  writ  of 
habeas  corpus,  which  was  refused  and 
the  prisoner  remanded.  Matter  of 
Dassler,  35  Kan.  678. 

4.  Title  of  Proceeding.  —  All  prosecu- 
tions for  violating  any  city  ordinance 

shall  be  entitled:     "  The  city  of 

against "  (naming  the  city,  and 

the  person,  or  persons,  charged),  and 
the  police  judge  shall  state  in  the 
docket  the  name  of  the  complainant, 
the  nature  and  character  of  the  offense, 
the  date  of  the  trial,  the  names  of  all 
witnesses  sworn  and  examined,  the 
finding  of  the  court,  the  judgment  of 
fine  and  costs,  the  date  of  payment,  the 
date  of  issuing  commitment,  if  any, 
and  every  other  fact  necessary  to  show 
the  full  proceedings  in  such  case,  i 
Kan.  Gen.  Stat.  (1897),  p.  364,  §  137, 
p.  424,  §  toi,  p.  466,  §  98;  Oklahoma 
Stat.  (1893),  §  609. 


981 


Volume  5. 


6730.  CRIMINAL  COMPLAINTS.  6730. 

unlawfully  neglects  and  refuses  to  perform  two  days*  labor,  or  any 
part  thereof,  upon  the  streets,  alleys  and  avenues  of  said  city,  and 
also  unlawfully  neglects  and  refuses  to  pay  to  the  street  commis- 
sioner of  said  city  the  sum  of  three  dollars,  or  any  part  thereof,  in 
lieu  of  said  labor,  and  has  during  all  of  the  time  since  January  1,  iSS^^ 
so  neglected  and  refused  to  perform  said  labor  or  pay  said  money  in 
lieu  thereof,  although  duly  notified  in  writing  so  to  do  by  the  street 
commissioner  of  said  city;^  and  further  saith  not. 

W.  D.  Shallcross. 
Sworn  to  before  me,  and  subscribed  in  my  presence,  this  30th  day 
oi  December,  i85-4. 

M.  L.  Hacker,  Police  Judge,^ 

Form  No.  6730. 

(Precedent  in  Smith  v.  Emporia,  27  Kan.  529.)' 

CcTunty  of^^rj,'  U  before /<a!7;^^j  i?.  ^ar«^^,  Police  Judge  of  said 
City  of  Emporia.  )  ^* 

City  of  Emporia,  plaintiff,  ^ 

^-  \ 

F.  E.  Smith,  defendant.    ) 

T.  Johnson,  being  first  duly  sworn,  upon  oath  says,  that  the  city  of 

Emporia  is  a  city  of  the  second  class,  duly  organized  under  and  by 

virtue  of  the  laws  of  the  state  of  Kansas;  that  upon  the  Jf-th  day  of 

August,   1S8I,   within  the  corporate   limits  of    said   city,  one  E.  E. 

1.  Charging   Fart.  —  See   supra,    note  in  a  police  court  see  Junction   City  v. 

I,  p.  g32.  Keeffe,  40  Kan.  276. 

In  Kingman   v.  Berry,  40  Kan.  625,  2.  Where  the  jurat  toa  complaint  was 

the  complaint  before   a   police   judge,  signed  by  the  police  judge  without  the 

omitting  the  formal  parts,  was  as  fol-  name  of  his  office  appearing,  the  error 

lows:     "y.   W.  Pettijohn,    being    duly  did    not    invalidate    the   complaint,    it 

sworn,  states  on   oath,   that  George  F.  appearing,   on    appeal,  from    the    face 

Berry,    within    the   city    of   Kingman,  of   the  transcript  that  the  person  who 

county  of   Kingman,   state  of   Kansas,  signed  the  jurat  was  actually  the  police 

did  on  the   thirteenth   day    oi January,  judge.      Kingman    v.    Berry,    40    Kan. 

iS^,    unlawfully    keep   and    maintain  625. 

certain    barrels   of  oil   on  Avenue   A,  3.   This    complaint   was  in  violation 

near  the  corner  of  Maine  street.  North,  of  a    certain    ordinance,    and    was    for 

the  same  not  being  within  three  feet  of  breaking  open  the  inclosure  established 

his  said  store  building,  being  used  by  by  the  city  as  a  pound,  and  unlawfully 

him  as  a  general  store;  contrary  to  the  taking  and  driving  therefrom  animals 

ordinances  of  the  city  of  Kingman   in  therein     impounded.       The    complaint 

such  cases  made  and  provided."     This  was  held    to   be   sufficient.      Smith  v. 

complaint    was    upheld    as   sufficient,  Emporia,  27  Kan.  528.     Consult  anno- 

though    criticised    for     not    being    as  tations  to  Form  No.  6729,  supra. 

formal,  full  and  precise  in   its  allega-  4.  Statement  of  Venue.  —  A  complaint 

tions  as  it   should    have  been.     It  did  in  a  police  court  of  a  city  of  the  second 

not   follow   the   language  of  the  ordi-  class  for  violation  of  one  of   the  city 

nance.    As  to  its  formal  parts,  however,  ordinances   sufficiently   sets   forth   the 

there  were  no  defects  except  that  the  venue  where,  in  the  caption,  the  state, 

police  judge  before  whom  the  complaint  county  and    city  are   named,  and  the 

was  sworn  signed  the  jurat  attached  to  complaint,  in  the  body  thereof,   states 

the    same    without    including    in    the  the  name  of  the  city,  and  alleges  that 

signature  the  name  of  his  office.    King-  said  city  is  a  city  of    the  second  class, 

man  v.  Berry,  40  Kan.  625.  organized  under  and  by  virtue  of  the 

For  another  precedent  of  complaint  laws  of  the  state,  and  that  the  defend- 

982  Volume  5. 


6731.  ^     CRIMINAL  COMPLAINTS.  6731. 

Smith,  above  named,  defendant,  then  and  there  being,  did  break  open 
the  inclosure  established  by  said  city  as  the  city  pound,  and  did  take 
and  drive  therefrom  animals  therein  lawfully  impounded,  without 
first  paying  the  lawful  officers'  fees  for  the  same;  all  contrary  to  an 
ordinance  of  said  city  in  such  cases  made  and  provided. 

-  T.  Johnson. 
Sworn  to  and  subscribed  before  me,  by  T.  Johnson,  this  5th  day 
of  August,  i2>81. 

James  R.  Barnes,  Police  Judge. 


State  of  Michigan,  ^ 


Form  No.  6731. 

(Precedent  in  People  v.  Bechtel,  80  Mich.  626.)' 

a 

County  of  Bay.        ) 

The  complaint  and  examination  on  oath  in  writing  of  Samuel  M. 
Catlin,  taken  and  made  before  me,  Daniel  Mangan,  police  justice  of 
the  city  of  Bay  City,  in  said  county,  upon  September  11,  a.  d.  i8<?9, 
who,  being  duly  sworn,  says  that  heretofore,  to  wit,  on  December  6, 
A.  D.  i2>89,  at  the  city  and  in  the  county  aforesaid,  Fred  Bechtel  [was 
then  and  there  engaged  in  the  business  of  selling  and  offering  for 
sale  spirituous  and  intoxicating  liquors,  and  malt,  brewed,  and  fer- 
mented liquors  at  retail,  and,  being  so  engaged  in  said  business,  he, 
the  said  Fred  Bechtel,  did  then  and  there,  on  said  December  6,  iS89, 
unlawfully  offer  for  sale  spirituous  and  intoxicating  liquors,  and  did 
then  and  there  unlawfully  give  and  furnish  spirituous  and  intoxicating 
liquors,  to  wit,  whiskey,  to  one  Peter  Tierney,  he,  the  said  Fred 
Bechtel,  not  having  then  and  there  paid  to  the  county  treasurer  of 
said  county  the  tax  required  by  law  for  selling  and  offering  for  sale 
spirituous  and  intoxicating,  and  malt,  brewed,  and  fermented  liquors, 
and  he,  the  said  Fred  Bechtel,  not  being  then  and  there  a  druggist, 
nor  any  person  whose  business  consists,  in  whole  or  in  part,  of  the 
sale  of  drugs  and  medicines,  and  the  liquors  so  sold  and  given  and 
furnished  as  aforesaid  not  being  then  and  there  proprietary  patent 
medicine.  ]2  All  of  which  complainant  has  good  reason  to  suspect, 
and  does  suspect,  contrary  to  the  form  of  the  statute  in  such  case 
made  and  provided,  and  against  the  peace  and  dignity  of  the  people 
of  the  State  oi  Michigan;  wherefore  the  said  Catlin  prays  that  the 
said  Bechtel  may  be  apprehended  and  held  to  answer  this  com- 
plaint, and  further  dealt  with  in  relation  to  the  same  as  law  and  jus- 
tice may  require. 

Sam' I  M.  Catlin. 

Taken,  subscribed,  and  sworn  to  before  me  the  day  and  year  first 
above  written. 

Daniel  Mangan,  Police  Justice. 

ant,  upon   a  day  therein  named,  did.  For  the  formal  parti  of  affidavits,  gen- 

within  the  corporate  limits  of  said  city  erally,    consult   the   title    Affidavits, 

then    and    there    being,    commit    the  vol.  i,  p.  548. 

offense   charged.     Smith   v.    Emporia,  Need  not  be  Eeduced  to  Writing.— Pec- 

27  Kan.  528.  pie  v.  Bechtel,  80  Mich.  623. 

1.  A  conviction  under  this  complaint  2.  Charging  Part.  ~  See   iupra,    note 

was   affirmed   on    appeal.      People    v.  i,  p.  932. 
Bechtel,  80  Mich.  623. 

988  Volume  5. 


6732.  CRIMINAL  COMPLAINTS.  6733. 

Form  No.  6732.' 

(Sanb.  &  B.  Anno.  Stat.  (1889),  p.  564,  §  69). 

State  of  Wisconsin,  \  t^utji-      r-       ^    c       a    •,. 

City  of  MilwaukeL  \  ^^'    ^"  ^^^  ^^^^^^  ^^"^^  «^  ^^'^  ^'^'^' 

Richard  Roe  complains  on  oath  to  the  poHce  court  of  the  city  of 
Milwaukee  that  John  Doe  did,  as  the  deponent  verily  believes,  on  or 
about  the  second  day  of  March,  a.  d.  \%98,  at  said  city,  violate  an 
ordinance  of  said  city,  to  wit,  i^Here  insert  the  title  and  date  of  the 
ordinance,  or  the  chapter  and  section  of  the  getieral  ordinance),  in  that 
he  did  then  and  there,  contrary  to  said  ordinance  (^Here  insert  the  act 
or  omission  complained  of);"^  Wherefore  the  complainant  prays  that 
said  John  Doe  be  arrested  and  dealt  with  according  to  law. 

Richard  Roe,  Complainant. 

Subscribed  and  sworn  to  before  me  this^^^M  day  of  March,  a.  d. 


\WS. 


Peter  Johnson,  Judge  (or  Clerk). 


g.  Probate  Court. 

Form  No.  6733.' 

In  the  Probate  Court  of  Shoshone  County,  State  of  Idaho. 
State  of  Idaho,  plaintiff,  ^ 

against  >- Complaint  —  Criminal. 

John  Doe,  defendant.     ) 

Personally  appeared  before  me  this  fifth  day  of  March,  iS98, 
Richard  Roe,  of  Murray,  in  the  county  of  Shoshone,  who  being  duly 
sworn,  complains  and  says: 

"WiZiX.  John  Doe,  of  Murray,  on  the  second  day  of  March,  i898,  at 
Murray,  in  the  county  of  Shoshone,  and  state  of  Idaho,  did  (^Here 
state  offense  charged  and  the  facts  constituting  the  same).^  All  of  which 
is  contrary  to  the  form  of  the  statute  in  such  case  made  and  provided 
and  against  the  peace  and  dignity  of  the  state  of  Idaho. 

Said  complainant  therefore  prays  that  a  warrant  may  be  issued  for 
the  arrest  of  said  John  Doe,  and  that  he  maybe  dealt  with  according 
to  law. 

Richard  Roe. 

Subscribed  and  sworn  to  before  me  this  fifth  day  of  March,  iS98. 

John  Pomeroy,  Probate  Judge. 

1.  Wisconsin.  —  Sanb.    &    B.    Anno.  3.  Idaho.  —  Rev.  Stat.  (1887),  §  8280. 
Stat.  (1889),  §  925>J^/j^^.   Se&aXso  supra.  See   also   supra.  Form    No.    6672,    and 
Form  No.  6706.  and  notes.    Consult  also  notes    thereto.     Consult    also    list    of 
list  of  statutes  cited  supra,  note  4,  p.  statutes  cited  supra,  note  4,  p.  973. 
973.  For  the  formal  parts  of  affidavits,  gen- 

For  the  formal  parts  of  affidavits,  gen-  erally,    consult    the    title    Affidavits, 

erally,    consult   the    title   Affidavits,  vol.  i,  p.  548. 

vol.  1,  p.  548.  4.  Charging    Part.  —  See   supra,    note 

2.  Charging   Part.  —  See  supra,   note  i,  p.  932. 
I.  p.  932. 

984  Volume  5. 


CRIMINAL  CONVERSATION. 

By  Francis  X.  Hennessy. 

I.  COMPLAINT,  Declaration  or  petition,  985, 

II.  ANSWER  OR  Plea,  989. 

1.  General  Denial^  989. 

2.  Accord  and  Satisfaction^  990. 

CROSS-REFERENCES. 

For  Forms  in  other  Actions  of  similar  character,  see  the  titles  ALIEN- 
ATION OF  AFFECTIONS,  vol.  i,  p.  684;  SEDUCTION. 

For  matters  of  Pleading  and  Practice,  consult  the  title  CRIMINAL 
CONVERSATION,  5  ENCYCLOPiEDiA  of  Pleading  and 
Practice,  p.  616. 


1.  Complaint,  declaration  or  petition.^ 


1.  Beqnisites  of  Complaint  or  Declara- 
tion—  Generally.  —  For  the  formal  parts 
of  the  complaint,  petition  or  declara- 
tion in  a  particular  jurisdiction  consult 
the  titles  Complaints,  vol.  4,  p.  1019, 
and  Declarations. 

Marriage  Relation.  —  The  relation- 
ship of  husband  and  wife  between  the 
plaintiff  and  seduced  spouse  at  the 
lime  of  the  criminal  conversation  must 
be  distinctly  averred.  Keppler  v.  Elser, 
23  111.  App.  643;  Kibby  v.  Rucker,  i 
A.  K.  Marsh.  (Ky.)  391;  Perry  v.  Love- 
joy,  49  Mich.  529;  Hutchins  v.  Kim- 
mell,  31  Mich.  126;  Dann  v.  Kingdom, 
I  Thomp.  &  C.  (N.  Y.)  492;  Morris  v. 
Miller,  4  Burr.  2057;  Catherwood  v. 
Caslon,  13  M.  &  W.  261. 

It  is  a  sufficient  allegation  of  mar- 
riage in  a  complaint  for  criminal  con- 
versation with  the  plaintiff's  wife  to 
aver  that  at  the  time  she  was  de- 
bauched she  was  his  wife.  Hauck  v. 
Grauiham,  22  Ind.  53. 

Criminal  Intercourse.  —  The  criminal 
intercourse  must  be  substantially 
averred.  Perry  v.  Lovejoy,  49  Mich. 
529- 

Means.  —  The  means  by  which  the  in- 
tercourse was  effected  need  not  be  al- 
leged, as  the  means  is  but  an  incident 
to  increase  or  mitigate  the  damages. 
Bedan  v.  Turney,  99  Cal.  649;  Wales  v. 
Miner,  89  Ind.  118. 


Scienter.  —  It  need  not  be  alleged  that 
the  defendant  knew  of  the  marriage 
relation.     Wales  v.  Miner,  89  Ind.  iiS. 

Place  is  not  of  the  essence  of  the  ac- 
tion and  need  not  be  alleged,  and  if  al- 
leged, the  averment  is  treated  as  formal 
merely  and  it  need  not  be  proved. 
Long  V.  Booe,  106  Ala.  570. 

Time.  —  The  complaint  may,  as  in 
actions  of  trespass,  lay  the  time  of  the 
alleged  wrongful  acts  with  a  continu- 
ando,  and  the  evidence  may  be  directed 
to  any  time  within  that  covered  by  the 
complaint.  Lemmon  v.  Moore,  94.  Ind. 
40;  and  see  also  Yatter  v.  Miller,  61  V't. 
147;  Johnston  v.  Disbrow,  47  Mich.  59. 
But  it  seems  that  when  time  and  place 
are  not  alleged  with  particularity  it  is 
in  the  discretion  of  the  court  to  order  a 
bill  of  particulars.  Shaffer  v.  Holm, 
28  Hun  (N.  Y.)  264;  Tilton  v.  Beecher, 
59  N.  Y.  176.  In  the  latter  case  it  was 
held  that  plaintiff's  affidavit  was  sub- 
stantially equivalent  to  a  bill  of  particu- 
lars, as  it  contained  everything  which 
a  defendant  could  properly  seek  to  learn 
by  means  of  a  bill.  The  affidavit  was 
as  follows: 
"  City  of  Brooklyn,  Kings  County,  ss. 

Theodore  Tilton,  the  above  named 
plaintiff,  being  duly  sworn,  deposes: 
That  the  sum  total  of  the  knowledge 
possessed  by  him  of  the  sexual  inter- 
course   between   Henry   Ward  Beeclur 


985 


Volume  5. 


6734. 


CRIMINAL  CON  VERS  A  TION. 


6734. 


and  Elizabeth  R.  Tilton,  and  of  the  times 
and  places  thereof,  consists  as  follows: 

First:  Confessions  of  the  said  sex- 
ual intercourse  made  by  Henry  Ward 
Beecher  to  Francis  D.  Moulton,  Emma  R. 
Moulton  and  Theodore  Tilton,  and  others. 

Second:  Confessions  of  the  said  sex- 
ual intercourse  made  by  Elizabeth  R. 
Tilton  to  Emma  R.  Moulton,  Martha  B. 
Bradshaw,  Florence  Tilton,  Theodore  Til- 
ton, and  others. 

Third:  Written  and  printed  papers, 
documents  and  letters  by  Henry  Ward 
Beecher. 

Fourth:  Written  and  printed  papers, 
documents  and  letters  by  Elizabeth  R. 
Tilton. 

Fifth:  Written  and  printed  papers, 
documents  and  letters  by  other  persons. 

Sixth:  Acts,  declarations  and  con- 
duct by  said  Henry  Ward  Beecher  and 
said  E.  R.  Tilton,  respectively,  tending 
to  prove  such  sexual  intercourse,  with- 
out locating  it  in  any  time  or  place. 

Seventh:  And  various  circumstances 
not  amounting  to  direct  proof,  derived 
from  the  acts,  oral  declarations,  and 
written  papers  and  documents  of  the 
said  Henry  Ward  Beecher  and  of  other 
persons,  communicated  to  him,  and 
admissible  against  him. 

And  the  deponent  further  says  that 
the  aforesaid  confessions,  made  to 
others  than  this  deponent,  did  not,  to 
this  deponent's  knowledge,  nor  did  any 
or  either  of  them,  specify  any  time 
when  or  place  where  any  sexual  inter- 
course between  the  said  defendant  and 
the  wife  of  this  plaintifif  occurred. 

That  the  confession  so  made  to  this 
defendant  named  but  two  specific  oc- 
casions and  but  two  places  when  and 
where  such  intercourse  was  had,  name- 
ly, the  one  at  the  house  of  said  defend- 
ant, in  the  city  of  Brooklyn,  on  the  loth 
day  of  October,  \%68,  and  the  other  at 
the  house  of  this  plaintiff  on  the  17th 
day  of  October,  1M8. 

But  this  deponent  is  not  absolutely 
certain  that  the  above  are  the  precise 
dates  given  by  said  confessions,  but  is 
positive  that  they  were  about  and  very 
near  to  those  two  days. 

Nor  is  this  deponent  positive  that  the 
places  assigned  to  these  dates  were  as 
above  stated,  it  being  possible  that  the 
intercourse  stated  above  as  occurring 
on  the  loth  October,  1S6S,  may  have 
been  at  the  house  of  this  deponent,  and 
that  on  the  lyth  October,  \%68,  at  the 
house  of  the  defendant. 

And  this  deponent  further  says  that 
the   confessions  so  made   to   him   ad- 


mitted various  acts  of  adultery  by  the 
said  defendant  with  the  said  wife  of 
this  deponent  between  the  said  loth  of 
October,  \%68,  and  the  spring  of  1870, 
but  did  not  particularize  any  time  or 
place  otherwise  than  as  above  stated. 

That  this  deponent  does  not  expect 
to  be  able  on  the  trial  of  this  action  to 
prove  by  any  eye-witness  any  such 
intercourse,  or  to  prove  any  definite 
time  or  place  when  or  where  such  inter- 
course occurred,  except  by  the  confes- 
sions aforesaid,  and  that  the  only  proof 
of  the  adultery  charged  by  the  com- 
plainant within  the  control  or  knowl- 
edge of  this  deponent,  or  which  he 
expects  to  be  able  to  offer  upon  the  said 
trial,  are  as  above  set  forth;  and  this 
deponent  is  unable  to  furnish  any 
further  or  other  statement  '  of  the  par- 
ticular times  or  places  at  which  he  ex- 
pects or  intends  to  prove  that  any  such 
acts  of  adultery  or  criminal  intercourse 
took  place  between  the  defendant  and 
the  wife  of  the  plaintiff,'  than  is  above 
given. 

And  this  deponent  respectfully  says 
than  any  order  for  particulars  as  prayed 
by  this  motion  which  shall  preclude 
this  deponent  from  maintaining  this 
action  by  proof  of  confessions,  acts  and 
declarations,  and  other  testimony  tend- 
ing to  prove  the  adultery  named  in  the 
complaint,  although  such  evidence  may 
not  the  time  and  place  of  its  commis- 
sion, would  deprive  this  deponent  of 
material  testimony,  and,  as  he  is  ad- 
vised by  his  counsel,  and  believes, 
would  injuriously  and  unjustly  restrict 
his  legal  rights,  and  he  therefore  re- 
spectfully prays  and  insists,  in  case  this 
court  should  grant  any  order  for  par- 
ticulars, that  a  clause  may  be  inserted 
therein  to  the  following  effect,  viz: 

But  this  order  is  not  to  be  so  construed 
or  applied  as  to  prohibit  the  plaintiff  on 
the  trial  of  this  action  from  introducing 
evidence  of  confessions,  acts,  declara- 
tions, writings  and  documents  which 
may  be  admissible  under  the  general 
rules  of  evidence  as  if  this  order  had 
not  been  made,  and  which  do  not  in 
terms  refer  to  any  particular  act  or  time 
of  adultery,  but  proving  by  such 
evidence  the  adulterous  intercourse 
charged  in  the  complaint,  although 
it  may  not  thereby  appear  to  have  been 
committed  on  any  particular  day  or  at 
any  particular  place. 

Theodore  Tilton. 

Sworn  to  before  me  this  loth  day  of 
Dec,  1^74. 

Geo.  W.  Roderick,  Notary  Public." 


986 


Volume  5. 


6734.  CRIMINAL  CONVERSATION.  6735. 

Form  No.  6734. 

(9  Wentw.  PI.  13.)' 

In  the  King's  Bench. 

Trin.  Term,  51  Geo.  III. 

Lon4on,  to  wit.  Isaac  Loring,  late  of  the  parish  oi  St.  Paul,  Covent 
Garden,  was  attached  to  answer  Israel  Harkness  in  a  plea,  wherefore 
with  force  and  arms  he  made  an  assault  upon  Ellen  Harkness  the 
wife  of  the  said  plaintiff,  at  London  aforesaid,  to  wit,  in  the  parish  of 
St.  Paul,  Covent  Garden,  and  did  ravish,  lye  with,  debauch,  and  car- 
nally know  the  said  Ellen  Harkness,  whereby  the  said  plaintiff  lost  and 
was  deprived  of  the  comfort,  fellowship,  and  society  of  his  said  wife, 
and  other  wrongs  to  the  said  plaintiff  then  and  there  did  to  the  great 
damage  of  the  said  plaintiff,  and  against  the  peace  of  our  lord  the 
now  king,  whereupon  the  said  plaintiff,  hy  Jeremiah  Mason  Wis,  attor- 
ney, complains,  for  that  the  said  defendant  on  the  tenth  day  of  June, 
A.  D.  1799,  and  on  divers  other  days  and  times,  between  that  day  and 
the  day  of  suing  out  the  original  writ  of  the  said  plaintiff,  with  force 
and  arms  at  the  parish  of  St.  Paul,  Covent  Garden,  in  London  aforesaid 
made  an  assault  on  the  said  Ellen  Harkness  the  wife  of  the  said 
plaintiff,  and  at  those  several  days  and  times  did  debauch  and  car- 
nally know  the  said  Ellen  Harkness,  whereby  the  said  plaintiff  lost 
and  was  deprived  of  the  comfort,  fellowship  and  society  of  his  said 
wife  for  all  the  time  aforesaid,  and  other  wrongs  to  the  said  plaintiff 
then  and  there  did,  to  the  great  damage  of  the  said  plaintiff  and 
against  the  peace  of  our  lord  the  now  king,  whereupon  the  said 
plaintiff  saith  that  he  is  injured  and  hath  sustained  damage  to  the 
value  of  one  thousand  ^oxinds;  and  therefore  he  brings  his  suit,  etc. 

Form  No.  6735. 

(Conn.  Prac.  Act,  p.  75,  No.  iio.)* 
{Commencement  of  writ  as  in  Form  No.  5912.') 

1.  Precedents. —  In    2   Humph.    Prec.  there  alienated  and  destroyed,  and  also. 

780,  the  declaration,   omitting    formal  by  means  of  the  premises,  he  the  said 

parts,  is  as  follows:  Alfred    Brown    had     thence    hitherto 

"  For  that  whereas  the  said  Charles  wholly  lost  and  been  deprived  of  the 

Davis,     contriving,    and     wrongfully,  comfort,    fellowship,    society,  aid   and 

wickedly  and  unjustly  intending  to  in-  assistance    of    the    said   Ellen   Brown 

jure  the  said  Alfred  Brown,  and  to  de-  his  said   wife,  in  his  domestic  affairs, 

prive   him   of  the  comfort,  fellowship,  which  he  the  said  ^//r«'d'v9r<;w«  during 

society,    aid   and    assistance   of   Ellen  all  that  time  ought  to  have  had,  and 

Brown,  the  wife  of  him  the  said  Alfred  otherwise  might  and   would  have  had. 

Brown,  and  to  alienate  and  destroy  her  to  wit,  at,  etc." 

affections    for    him,    the    said  Alfred  For  other   precedents   see   Tillingh. 

Brown   heretofore,  to  wit:  on,  etc.,  and  Forms,  p.  415:  1  Saunds.  PI.  395- 

divers   other  days  and  times  between  2.  Florid*.— In  Fla.  Rev.  Stat.  (1892), 

that  day  and  the  day  of  exhibiting  this  §  1058.  subs.  24,  the  declaration,  omit- 

bill,  at,  <■/<:.,  wrongfully,  wickedly,  and  ting   the    formal   parts,  is   as   follows: 

unjustly  debauched  and  carnally  knew  "That  the  defendant  debauched  and 

the  said  Ellen  Brown  then  and   there,  carnally  knew  the  plaintiff's  wife." 

and  still  being  the  wife  of  him  the  said  Maryland.  —  In  Md.  Pub.  Gen.  Laws 

Alfred  Brown,  and  thereby  the   affec-  (1S88).  p.  1103,  §  30.  the  same  form  is 

tion    of  the  said  Ellen  Brown  for   him  given, 
the   said  Alfred  Brown  was   then   and 

987  Volume  5. 


6736.  CRIMINAL  CONVERSATION.  6736. 

1.  Jane  SHles  is,  and  for  more  than  five  years  last  past  has  been, 
the  wife  of  the  plaintiff. 

2.  The  defendant,  on  March  11th,  i878,  and  on  divers  other  days 
since  that  date,  seduced  and  carnally  knew  said  /ane  Stiles. 

3.  In  consequence  of  said  seduction,  the  plaintiff  has  lost  the 
affection  of  said  Jane  Stiles,  and  has  been  deprived  of  her  society, 
and  assistance,  which  he  otherwise  would  have  had,  and  has  suffered 
great  distress  of  body  and  mind. 

The  plaintiff  claims  $10,000  damages. 
(^Conclusion  as  in  Form  No.  5912. ) 


Form  No.  6736. 

(Precedent  in  Wales  v.  Miner,  89  Ind.  119.)' 

[State  of  Indiana,  )  Union  Circuit  Court. 

Union  County.      \  ^^-     October  Term,  i2>81. 

John  Miner,  plaintiff, 

against 

James  Wales,  defendant. 

John  Miner,  plaintiff,  complains  oi  James  Wales,  defendant,  and 
says]2  that  Eglantine  Miner  was  on  the  18th  day  of  October,  188I,  the 
lawful  wife  of  the  plaintiff,  and  had  been  for  a  long  time  previous 
thereto,  and  was  at  the  time  hereinafter  mentioned;  that  the  defend- 
ant contriving  and  wrongfully  and  maliciously  intending  to  injure  the 
plaintiff,  and  to  deprive  the  plaintiff  of  the  comfort,  fellowship  and 
assistance  of  his  said  wife.  Eglantine  Miner,  and  to  alienate  and 
destroy  her  affections  for  him,  the  defendant,  on  the  ix/day  oi  Janu- 
ary, iS72,  and  on  every  day  since,  until  the  18th  day  of  October,  jS81, 
at  the  county  of  Union  and  State  of  Indiana,  wrongfully  and  wickedly 
persuaded,  seduced,  debauched,  and  carnally  knew  the  said  Eglantine 
Miner,  the  then  wife  of  plaintiff,  who  was  his  said  wife  at,  between 
and  upon  all  the  time  between  the  said  1st  day  oi  January,  i87^,  and 
the  18th  day  of  October,  188 1;  and  thereby  did  seduce  her  affections, 
the  said  Eglantine  Miner,  and  alienate  from  him  the  said  plaintiff, 
and  that  thereby  her  affections  were  then  and  there  alienated  and 
destroyed.  That  by  means  of  the  premises  the  plaintiff  from  that 
time  to  the  said  18th  day  of  October,  1S8I,  has  been  wholly  deprived 
of  the  comfort,  fellowship,  society,  aid  and  assistance  of  the  said 
Eglantine  Miner,  his  then  wife,  in  his  domestic  affairs,  which  during 
all  that  time  he  ought  and  would  otherwise  have  had,  to  his  damage 

1.  This  form  is  the  first  paragraph  of  injuries  that  may  result.     It  is  in  no 

plaintiff's  complaint.     It  was  held   no  case  necessary  that  before  the  action 

objection  to  this  paragraph  that  it  does  will  lie  the  guilty  man  must  be  charged 

not  aver  that  when  the   alleged  seduc-  in    the   complaint  with   having  at  the 

tion  occurred  the  defendant  knew  that  time  of  the  seduction  actual  notice  or 

Eglantine   Miner  was  the  wife  of  the  knowledge  of  the  domestic  relations  of 

plaintiff.     When  a  man  engages  in  the  the  seduced. 

practice  of  illicit  intercourse  with  a  wo-  2.  The   words   and   figures   enclosed 

man,  he  is  bound  to  take  notice  of  her  by  [  ]  will  not  be  found  in  the  reported 

domestic  relations  and  takes  the  haz-  case,  but  have  been  added  to  render  the 

ard  of  being  held   responsible   for  any  form  complete. 

988  Volume  5. 


6737.  CRIMINAL  CONVERSATION,  6738. 

%15fi00,  for  which  sum  he  sues  and  demands  judgment,  and  for  gen- 
eral relief. 

[y.  W.  Cortnawayy 
T.  D.  Evans, 

Plaintiff's  Attorneys.]^ 

Form  No.  6737. 

Supreme  Court,  Suffolk  County. 

John  Doe,  plaintiff, 
against 
Richard  Roe,  defendant. 

The  complaint  of  the  above  named  plaintiff  respectfully  shows  to 
this  court  that /a«^  Z>^  is,  and  at  the  times  hereinafter  mentioned 
was,  the  wife  of  this  plaintiff.  That  on  the  first  day  of  May,  i897, 
while  the  plaintiff  and  said  Jane  Doe  were  living  happily  together 
as  man  and  wife,  the  defendant  wrongfully  contriving  and  intending 
to  injure  the  plaintiff,  and  to  defraud  him  of  the  affection  and  society 
of  his  said  vf\ie,  Jane  Doe,  at  the  village  of  Northport  in  said  county, 
wickedly,  wilfully  and  maliciously  debauched  and  carnally  knew  the 
said  Jane  Doe  without  the  privity  or  consent  of  this  plaintiff.  That 
by  reason  of  the  premises,  the  plaintiff  was  deprived  of  the  comfort, 
society,  aid  and  assistance  which  he  otherwise  would  have  had  from 
the  said  Jane  Doe,  and  has  suffered  great  distress  of  body  and  mind, 
to  his  damage  five  thousand  dollars. 

Wherefore  plaintiff  demands  judgment  against  said  defendant  for 
said  sum  of  five  thousand  dollars  and  all  costs  and  expenses  of  this 
action. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

II.  ANSWER  OR  PLEA.2 

1.  General  Denial. 

1.  The  words  enclosed  by    [  ]   will  her,  and  finally  had  put  her  away  from 

not  be  found  in  the  reported  case,  but  him    by  force  and  threatened   10   put 

have  been   added  to  render  the  form  her   to  death  if   ever  she  returned  to 

complete.  him,  so  that  she  was  in  danger  of  her 

2.  For  the  formal  parts  of  an  answer  life  and  did  live  apart  from  him  per- 
or  plea  in  a  particular  jurisdiction  con-  manently. 

suit  the  titles  Answers  in  Code  Plead-        Secondly,  that  long  before  the  com- 

ING,  vol.  I,  p.  799,  and  Pleas.  mitting  of  the  said  pretended  trespass. 

Plaintiff's  Hiscondact.  —  In  Patterson  the  plaintitT's  wife  had,    while    living 

V.   McGregor,  28  U.   C.   Q.   B.   280,  the  separate  from  him  as  aforesaid,  on  ac- 

following  pleas  were  held  a  good  de-  count   of    the   plaintiff's  adultery  and 

fense:  cruelty  aforesaid,  applied  for  and  ob- 

I.  That  long  before  the  committing  tained  an  order  for  protection,  accord- 

of  the  pretended  trespass  in  the  declara-  ing  to  the  statute  in  such  case  made 

tion  set   forth,  the  plaintiff    had    been  and    provided,  after   the  plaintiff  had 

guilty    of   adultery    with  one   Isabella  received  due  notice  of  the  application 

Lowe,  on    whom    he   had    begotten    a  therefor,  which  order  was  duly  regis- 

child  now  living  with  the  plaintiff,  and  tered,  and  has  ever  since  been  and  now 

had  continually   treated  his  wife  with  is  in   full  force  and  effect,   by  reason 

intolerable  cruelty,  and  had  frequently  whereof  the  plaintiff  lost  all  claim  to 

used  severe  personal  violence  toward  the  comfort  and  society  of  his  wife. 

989  Volume  5. 


6738.  CRIMINAL  CONVERSATION,  '       6739. 

Form  No.  6738.' 

Supreme  Court. 

Peter  Smith,  plaintiff. 

against 

John  O'Brien,  defendant. 

The  defendant,  John  O'Brien,  in  answer  to  the  complaint  in  this 
action,  denies  each  and  every  allegation  therein,  except  the  allega- 
tion that  Mary  Smith  is  the  wife  of  the  plaintiff,  Feter  Smith,  as  the 
said  defendant  is  informed  and  believes  to  be  true. 

John  Gibney,  Defendant's  Attorney. 

Address  and  post-office  address.  Sing  Sing,  N.  Y. 

2.  Accord  and  Satisfaction. 

Form  No.  6739. 

(9  Wentw.  PI.  13.) 

In  the  King's  Bench. 

Trin.  Term,  51  Geo.  III. 
Richard  Roe 
ats. 
John  Doe. 

And  the  said  defendant,  by  Jeremiah  Mason  his  attorney,  comes 
and  defends  the  wrong  and  injury,  when,  etc. ,2  and  saith  that  he  is 
not  guilty  of  the  premises  above  laid  to  his  charge  in  manner  and 
form  as  the  said  plaintiff  hath  above  thereof  complained  against  him, 
and  of  this  he  puts  himself  upon  the  country,  etc. ;  and  for  further 
plea  in  this  behalf,  the  said  defendant  by  leave  of  the  court  here  for 
this  purpose  first  had  and  obtained  according  to  the  form  of  the 
statute  in  such  case  made  and  provided,  comes  and  defends  the  force 
and  injury,  when,  etc.,®  and  says,  the  saidy^/!«Z><7^ought  notto  have 
or  maintain  his  aforesaid  action  thereof  against  him,  because  he  says 
that  after  the  said  several  times,  when,  etc.,  to  wit,  on  \.\\t  first  day 
of  August,  A.  D.  1199,  at  the  parish  of  St.  Paul,  Covent  Garden,  in 
London  aforesaid,  it  was  mutually  agreed  by  and  between  the  said 
defendant  and  the  said  plaintiff,  that  by  way  of  atonement  and  satis- 
faction for  the  said  several  trespasses  and  all  damages  sustained  by 
the  said  plaintiff  on  occasion  thereof,  the  said  defendant  should  at  his 
own  proper  costs  and  charges  maintain  and  keep  a  certain  child  of 
him,  the  said  plaintiff,  begotten  on  the  body  of  his  said  wife;  and  the 
said  defendant  in  fact  further  says,  that  in  pursuance  of  the  said 
agreement,  he  the  said  defendant  at  his  own  proper  costs  and 
charges  hath  from  thence  hitherto  maintained  and  kept,  and  still 
maintains  and  keeps  the  said  child,  to  wit,  at  the  parish  of  St.  Paul 
aforesaid,  and  this  the  said  defendant  is  ready  to  verify,  wherefore 
he  prays  judgment  if  the  sddd  John  Doe  ought  to  have  or  maintain 
his  aforesaid  action  thereof  against  him,  etc. 

1.  This  form  is  copied  from  the  rec-  Conversation,  5  Encyclopaedia  of 
ords  in  Smith  v.  O'Brien,  127  N.  Y.  684.     Pleading  and  Practice,  p.  616. 

As  to  what  can  be  shown  under  the        2.  See  vol.  2,  p.  109,  note  2. 
general   denial,  see  the  title  Criminal 

990  Volumes. 


CROSS-BILLS. 

See  the  title  BILLS  IN  EQUITY,  vol.  3,  p.  417. 


CROSS-COMPLAINTS. 

I.  In  General,  991. 
II.  Answer  and  Cross-petition,  993. 

CROSS-REFERENCES. 

For  Forms  of  Answers,  generally,  see  the  title  ANSWERS  IN  CODE 
PLEADING,  vol.  i,  p.  799. 

For  Forms  of  Complaints,  generally,  see  the  title  COMPLAINTS,  vol. 
4,  p.  1019. 

For  Forms  of  Corresponding  Pleading  in  Equity,  see  the  title  BILLS 
IN  EQUITY,  vol.  3,  p.  468. 

For  Forms  connected  with  Set-off  and  Counterclaim,  see  the  title  SET- 
OFF AND  COUNTERCLAIM. 

For  matters  of  Procedure,  see  the  title  CROSS-COMPLAINTS,   5 

ENCVCLOPiEDIA  OF  PLEADING  AND  PRACTICE,  p.   673. 


I.  IN  GENERAL.1 

Form  No.  6740. 

Posey  Circuit  Court. 
October  Term,  i2>97. 


State  of  Indiana, ) 
Posey  County.       ) 
fane  Doe,  plaintiff, 
against 
John  Doe,  defendant. 


1.  In  General.  —  In  several  states  it  is 
provided  that  whenever  the  defendant 
seeks  aflSrmative  relief  against  any 
party,  relating  to  or  depending  upon  the 
contract  or  transaction  upon  which  the 
action  is  brought,  or  affecting  the  prop- 
erty to  which  the  action  relates,  he 
may,  in  addition  to  his  answer,  file  at 
the  same  time,  or  by  permission  of  the 
court  subsequently,  a  cross-complaint. 
The  cross-complaint  must  be  served 
upon  the  parties  affected  thereby,  and 
such  parties  may  demur  or  answer 
thereto  as  to  the  original  complaint. 


Arkansas.  —  Sand.  &  H.  Dig.  (1894), 
§  5712. 

California.  —  Code  Civ.  Proc.  (1897), 

§442. 

Idaho.  —  Rev.  Stat.  (1887),  §  4188. 

Iowa.  —  Code  (1897),  p§  3176,  3574. 

Utah.  —  Rev.  Slat.  (1898),  §  2974. 

And  in  Hopkins  v.  Oilman,  47  Wis. 
581,  quoted  in  a  note  to  Sanb.  &  B. 
Anno.  Stat.  Wis.  (1889),  §  2656.  it  was 
said:  "The  code  is  silent  respecting 
cross  bills  or  complaints.  It  neither 
authorizes  nor  prohibits  the  filing  of  a 
cross-complaint   in   a  case  wherein  a 


991 


Volume  5. 


6740. 


CR  OSS-  COMPLAIN  TS. 


6740. 


The  defendant,  for  a  cross-complaint  against  the  plaintiff  herein, 
says: 

[That  defendant  and  plaintiff  were  duly  married  on  the  ^rst  day  of 
/urte,  iS85,  and  lived  together  as  husband  and  wife  until  the  _^rst  day 
of  May,  iS97;  that  plaintiff  committed  the  crime  of  adultery  with  one 
Samuel  Short,  on  or  about  the  first  day  of  April,  i897,  and  that,  as 
soon  as  defendant  discovered  that  plaintiff  had  committed  said 
offense,  he  ceased  to  cohabit  with  her.]^ 


cross-bill  formerly  would  have  been 
proper.  Under  the  ample  provisions  of 
the  code  respecting  counterclaims,  it 
seems  a  cross  bill  or  complaint  is  no 
longer  necessary  or  proper  in  case  of  a 
mere  cross-demand  or  claim  for  affirma- 
tive relief,  existing  in  favor  of  one  or 
more  defendants  against  the  plaintiff  in 
the  action  alone,  as  in  such  case  the  de- 
fense can,  and  should,  al'.vays  be  set  up 
in  the  answer  by  way  of  counterclaim 
and  the  whole  matter  litigated  and  de- 
termined in  one  action.  But  there  may 
be  cases,  under  the  code,  in  which  a 
cross-action  is  not  only  proper  but 
necessary,  in  order  to  enable  a  defend- 
ant to  bring  his  defense  properly  before 
the  court,  and  to  settle  equities  existing 
between  him  and  his  codefendants. 
Thus,  in  Thursby  v.  Mills,  i  Code  Rep. 
(N.  Y.)  83,  it  was  held  that,  in  order  to 
enable  a  defendant  to  obtain  an  injunc- 
tion, he  must  serve  a  complaint  in  the 
nature  of  a  cross-suit,  unless  where  the 
defendant's  right  to  an  injunction  ap- 
pears from  the  original  complaint." 

And  that  a  cross-complaint  may  be 
used  in  Indiana,  although  the  statute 
contains  no  provision  relating  thereto, 
see  the  cases  cited  infra,  note  i, 
p.  992. 

The  chief  difference  in  the  statutes 
cited  above  consists  in  the  parties 
against  whom  relief  may  be  had  by  the 
cross-complaint.  Thus,  in  Utah,  relief 
can  be  had  against  a  codefendant  only, 
and  in  Arkansas  and  Iowa  against  any 
person  other  than  the  plaintiff. 

Complaint  and  Cross-complaint  Distin- 
guished. —  The  only  real  difference 
between  a  complaint  and  a  cross-com- 
plaint is,  that  the  first  is  filed  by  the 
plaintiff  and  the  second  by  the  defend- 
ant. Both  contain  a  statement  of  the 
facts,  and  each  demands  affirmative  re- 
lief upon  the  facts  stated.  Ewing  v. 
Patterson,  35  Ind.  326,  quoted  in  Con- 
ger V.  Miller,  104  Ind.  594. 

1.  Ground  of  Belief.  —  The  cross-com- 
plaint, like  an  original  complaint,  must 
state  facts  sufficient  to  entitle  the 
pleader  to  affirmative  relief.     Winter  v. 


McMillan,  87  Cal.  263;  Stratton  v.  Cali- 
fornia Land,  etc.,  Co.,  86  Cal.  353; 
Peabody  v.  Prince,  78  Cal.  511;  Harri- 
son V.  McCormick,  69  Cal.  618;  Coult- 
hurst^'.  Coulthurst,  58  Cal.  239;  Brodrib 
V.  Brodrib,  56  Cal.  566;  Kreichbaum  v. 
Melton,  49  Cal.  55;  Collins  z'.  Bartlett, 
44  Cal.  381;  Marriott  v.  Clise,  12  Colo. 
561;  Murray  v.  Hobson,  10  Colo.  66; 
Norris  v.  Norris,  3  Ind.  App.  500;  Wood 
V.  Hughes,  138  Ind.  179;  Holland  v. 
Holland,  131  Ind.  196;  Kempshall  v. 
East,  127  Ind.  320;  Conger  v.  Miller, 
104  Ind.  592;  Gardners-.  Fisher,  87  Ind. 
375;  Masters  v.  Beckett,  83  Ind.  595; 
Shoemaker  v.  Smith,  74  Ind.  71;  Ewing 
V.  Patterson,  35  Ind.  326.  And  see 
Scheiffelin  v.  Weatherred,  19  Oregon 
172. 

And  it  cannot  be  helped  out  by  the 
averments  of  any  of  the  other  pleadings 
in  the  action.  Coulthurst  v.  Coult- 
hurst, 58  Cal.  239;  Kreichbaum  v.  Mel- 
ton, 49  Cal.  55;  Conger  v.  Miller,  104 
Ind.  592;  Masters  v.  Beckett,  83  Ind. 
595.  Nor  by  an  agreed  statement  of 
facts.     Collins  v.  Bartlett,  44  Cal.  381. 

Yet  in  matters  of  mere  description  it 
may  refer  to  and  adopt  some  of  the 
allegations  of  the  complaint.  Ander- 
son V.  Wilson,  100  Ind.  402;  Gardner  v. 
Fisher,  87  Ind.  375;  Cookerly  v.  Dun- 
can, 87  Ind.  332;  Coe  v.  Lindley,  32 
Iowa  437.  Thus  a  description  in  a 
cross-complaint  in  an  action  to  quiet 
title,  designating  it  as  the  real  estate  in 
the  complaint  mentioned,  is  sufficient. 
Such  a  reference  is  not  intended  to  sup- 
ply a  needed  statement  of  fact,  but  is 
for  identification  only.  Cookerly  v. 
Duncan,  87  Ind.  332.  Nor  is  it  neces- 
sary to  set  out  in  a  cross-complaint  a 
copy  of  a  written  instrument  which 
forms  the  basis  of  the  original  action; 
it  being  sufficient  for  the  cross-com- 
plaint to  refer  to  such  instrument. 
Gardner  v.  Fisher,  87  Ind.  369;  Coe  v. 
Lindley,  32  Iowa  437. 

Where  the  defendant  has  two  sepa- 
rate rights,  instead  of  setting  them  up 
in  the  form  of  two  cross-complaints, 
they  should  be  stated  separately  in  one 


992 


Volume  5. 


6741.  CROSS-COMPLAINTS.  6742. 

Wherefore  he  prays  judgment  that  [the  said  bonds  of  matrimony  be 
dissolved,  and  a  divorce  granted  in  favor  of  this  defendant.] ^ 

Jeremiah  Mason,  Defendant's  Attorney. 

Form  No.  6741. 

(Conn.  Prac.  Act,  p.  192,  No.  335.)* 
John  Doe  )  Superior  Court, 

vs.  V  JVew  Haven  County, 

Richard  Roe  and  John  Fen.  )  January  Term,  i879. 

Cross-complaint  oi  John  Fen,  against  y^^^  Doe  and  Richard  Roe. 

1.  After  the  defendant  Richard  Roe  made  the  note  and  mortgage  in 
the  original  complaint  described,  he  sold  and  conveyed,  by  a  proper 
deed,  his  interest  in  the  mortgaged  premises  to  this  defendant, 
John  Fen. 

2.  On  June  1st,  i&78,  when  said  note  fell  due,  and  before  the  com- 
mencement of  the  plaintiff's  said  action,  and  after  notice  to  him  of 
said  conveyance,  this  defendant  tendered  to  the  plaintiff  the  full 
amount  due  on  said  note,  with  interest,  being  in  all  ^10,600,  in  pay- 
ment thereof,  and  the  plaintiff  refused  to  accept  the  same. 

3.  This  defendant  has  ever  since  been,  and  now  is,  ready  and 
willing  to  pay  said  sum  to  the  plaintiff,  or  into  court  for  his  use. 

This  defendant  claims  a  conveyance  to  himself  from  the  plaintiff 
of  the  mortgage  title,  on  tender  or  payment  into  court  by  this  defend- 
ant of  $10,600. 

By  Jeremiah  Mason,  his  attorney. 

II.  ANSWER  AND  CROSS-PETITION.^ 

cross-complaint,   to    avoid    confusion,  the  answer  it  may  be  styled  a  "  cross- 
Van  Bibber  v.  Hilton,  84  Cal.  585.  petition." 

1.  Prayer  for  Belief. —  The  cross-corn-  Ohio.  —  Bates' Anno.  Stat.  (1897),  § 
plaint,  like  the  original  complaint,  must  5059. 

contain  a  prayer  for  relief,     Ringo  v.  Wyoming.  —  Rev.  Stat.  (18S7),  §  2446. 

Woodruff,  43  Ark.  469;  Sylvis  v.  Sylvis,  And  see  Okla.    Stat.  (1893),  ^  3972; 

II   Colo.    331.     But  a   cross-complaint  Tucker  i*.  St.  Louis  L.  Ins.  Co.,  63  Mo. 

which  states  a  cause  of  action  in  favor  588. 

of  the  defendant  is  not  insufBcient  on  In  Kentucky   it  is   provided  that   00 

demurrer  for  want  of  facts  merely  be-  pleading     except    an     answer    to    an 

cause  it  demands  more  relief  than  the  original  petition,  or  the  plaintiff's  reply 

defendant  is  entitled  to.     Markf.  Mur-  to  such  answer,  shall  be  made  a  cross- 

phy,  76  Ind.  534.  petition.   Bullitt's  Civ.  Code  Ky.  (1895), 

2.  In  Connecticut  the  cross-complaint  §  iii.     See  also  |  96. 

differs  from  an  ordinary  complaint  in  In  Georgia  it  is  provided  that  "A 
that  the  ordinary  complaint  is  inserted  petition  in  the  nature  of  a  cross-bill 
in  the  writ,  while  the  cross-complaint,  need  not  be  filed  in  this  state.  The  de- 
being  in  the  nature  of  an  answer,  is  not  fendant  in  every  case  may  set  up  in 
so  inserted,  but  is  filed  separately.  For  his  answer  any  matter  which,  under 
rules  relating  to  cross-complaints  in  the  English  practice,  should  be  the  sub- 
Connecticut  see  Rules  Under  Practice  ject  of  a  cross-bill,  and  may  require 
Act,  No.  5.  For  other  forms  of  cross-  therein  any  discovery  from  the  peli- 
complaints  in  Connecticut  see  Conn,  tioner  he  may  desire.  No  supplemental 
Prac.  Act,  p.  193,  No.  336,  p.  194,  No.  petition  need  be  filed  in  this  state.  All 
337.  such  matter  shall  be  allowed  by  way 
8.  In  some  states  it  is  provided  that  of  amendment.  If  new  parties  are 
when  affirmative  relief  is  demanded  in  necessary,  by  reason  of  any  matter 
5  E.  of  F.  P.— 63.                         993  Volume  5. 


6742. 


CROSS-  COMPLAINTS. 


6742. 


Form  No.  6742.' 

John  Doe,  plaintiff,       i 

against  >•  Answer  and  Cross-petition. 

Richard  Roe,  defendant.  ) 

The  plaintiff,  on  Xhe  first  day  of  May,  i897,  for  valuable  considera- 
tion, duly  executed  and  delivered  to  defendant  his  agreement  in 
writing  whereby,  in  consideration  of  fifty  dollars,  he  agreed  to 
convey  said  premises  to  the  defendant.  The  defendant  has  duly 
performed  all  the  conditions  of  said  agreement  on  his  part  to  be  per- 
formed, but  the  plaintiff  neglects  and  refuses  to  convey  said  premises 
to  defendant.^ 

Wherefore  defendant  prays  that  plaintiff,  in  accordance  with  said 
agreement,  be  ordered  to  convey  said  premises  to  defendant,  and 
that  he  be  forthwith  enjoined  from  prosecuting  this  suit  further.  ^ 

Jeremiah  Mason,  Attorney  for  Defendant. 

(^Verification.')^ 


thus  set  up  in  the  answer,  or  by  way  of 
amendment,  the  court  shall  give  such 
direction  to  the  cause,  to  secure  a  hear- 
ing to  such  parties,  as  if  a  petition  in 
the  nature  of  a  crossbill  or  supple- 
mental bill  had  been  filed."  2  Ga. 
Code  (1895),  §  4969. 

The  cross-petition  in  these  states  need 
not  be  joined  with  a  denial  of  the 
allegations  of  the  petition,  but  may  con- 
sist of  purely  affirmative  matter.  Brad- 
ford V.  Andrews,  20  Ohio  St.  221. 

In  other  states  it  is  held  that  a  single 
paragraph  of  the  defendant's  pleading 
cannot  be  both  an  answer  and  a  cross- 
complaint;  and  where  it  is  treated 
below  both  by  court  and  counsel  as  a 
cross-complaint,  it  will  be  so  considered 
by  the  supreme  court.  Shain  v.  Belvin, 
79Cal.  262;  Anderson  Bldg.,  etc.,  Assoc. 
V.  Thompson,  88  Ind.  405;  Thompson  v. 
Toohey,  71  Ind.  296;  State  Board  of 
Agriculture  v.  Gray,  54  Ind.  91.  And 
that  if  a  defendant  has  a  cause  of 
cross-complaint,  and  wishes  affirma- 
tive relief,  his  pleading  should  show 
distinctly  that  it  was  intended  as  a 
cross-complaint.  If  it  commences  as 
follows:  "And  for  a  further  and  sepa- 
rate answer  and  defense  to  said  action, 
defendant  avers  by  way  of  cross-com- 
plaint," the  pleading  will  be  construed 
against  the  pleader,   and    as    against 


him  it  will  be  treated  as  an  answer 
merely.  Shain  v.  Belvin,  79  Cal.  262. 
And  see  O'Connor  v.  Frasher,  53  Cal. 

435. 

But  in  Wright  v.  Anderson,  117  Ind. 
351,  it  was  held  that  a  pleading,  though 
denominated  an  answer,  will  be  re- 
garded as  a  cross-complaint  if  facts 
are  alleged  therein  which  authorize  the 
granting  of  affirmative  relief.  In  this 
case  the  second  paragraph  of  the  an- 
swer, which  was  regarded  by  the  court 
as  a  cross-complaint,  commenced  as 
follows:  "  Said  defendant  for  further 
answer  says  that,"  etc. 

1.  Precedents.  —  For  a  good  precedent 
of  an  answer  and  cross-petition  see 
Peter  v.  Farrel  Foundry,  etc.,  Co.,  53 
Ohio  St.  534,  and  ante.  Form  No.  6448. 
See  also  a  form  in  Wilson  v.  McLaugh- 
lin, II  Colo.  465. 

2.  Ground  of  Belief.  —  See  supra,  note 
I,  p.  992. 

3.  Prayer  for  Relief .  —  As  the  answer  is 
called  a  cross-petition  only  "  when 
affirmative  relief  is  demanded  therein," 
it  follows  ex  vi  termini  that  the  cross- 
petition  must  pray  for  the  desired 
relief.        And     see      supra,     note      i, 

P-  993- 

4.  Verification.  —  For  form  of  verifi- 
cation in  a  particular  jurisdiction  con- 
sult the  title  Verifications. 


994 


Volume  5. 


CROSSINGS. 

See  the  title  RAILROADS. 


CRUELTY  TO  ANIMALS. 

By  John  H.  Gabriel  and  Jos.  R.  Long. 

I.  IN  GENERAL,  995. 
II.  CRUELLY  ABANDONING,  998. 

III.  CRUELLY  AND  NEEDLESSLY  KILLING,  998. 

IV.  TORMENTING  AND  TORTURING,  999. 

1.  By  Cruelly  Beatings  999. 

3.  By  Inflicting  Unnecessary  Cruelty^  1000. 

3.  By  Mutilating  or  Wounding,  1000. 

4.  Causing  or  Permitting  Torture,  looi. 

V.  FAILURE  TO  PROVIDE  PROPER  FOOD  OR  SHELTER,  1002. 
1.    Generally,  1003. 

a.  Impounding  Without  Food  and  Water,  1003. 
3.   Exposing  Team  to  Cold  and  Stormy  Weather,  1003. 

VI.  IN  TRANSPORTING,  1004. 

1.  Generally,  1004. 

2.  By  a  Common  Carrier,  1004. 

VII.  IN  WORKING,  1004. 

1.   Overdriving,  1004. 
«.    Overloading,  1006. 

3.  When  Unfit  for  Labor,  1006. 

VIII.  PIGEON  SHOOTING,  1007. 

CROSS-REFERENCES. 

For  Forms  connected  with   Prosecutions  for  Unlawfully   Killing  and 

Maiming  Cattle,   see  the  title  CATTLE  AND  DOMESTIC 

ANIMALS,  vol.  4,  p.  376. 
For  matters  of  Procedure,  see  the  title  CRUELTY  TO  ANIMALS 

AND   CHILDREN,    5    ENCVCLOPi€DiA   of   Pleading  and 

Practice,  p.  645. 

I.  IN  GENERAL.! 

1.  Beqtiisites  of  Indictment — Gener-  and  circumstances,  when,  by  using- 
ally.  —  A  charge  in  an  indictment  may  those  words,  the  act  in  which  an  of- 
be  made  in  the  words  of  the  statute,  fense  consists  is  fully,  directly  and  ex- 
without  a  particular  statement  of  facts    pressly  alleged  without  any  uncertainty 

995  Volume  5. 


6743. 


CRUELTY  TO  ANIMALS. 


6743. 


or  ambiguity.  State  v.  Comfort,  22 
Minn.  271;  State  v.  Haley,  52  Mo.  App. 
520;  Turman  v.  State,  4  Tex.  App.  586. 

Description  of  Animal. — A  descrip- 
tion of  the  animal  as  a  "  certain  horse  " 
is  sufficient.  Com.  v.  McClellan,  loi 
Mass.  34.  Or  "  a  certain  animal,  to 
wit,  a  cow."  Com.  v.  Whitman,  118 
Mass.  458. 

A  description  of  the  animal  as  "  a 
certain  horse,  a  dumb  animal  under 
the  statute."  is  sufficient  underWillson's 
Crim.  Stat.  Tex.  (1889),  art.  680.  Ben- 
son V.  State,  I  Tex.  App.  6. 

In  an  indictment  for  cruelty  to  a 
mule,  under  a  statute  relating  to  cruelty 
to  "any  domestic  animal,"  it  is  un- 
necessary to  allege  that  the  mule  was  a 
domestic  animal,  as  the  court  will  take 
judicial  notice  of  that  fact.  State  v. 
Gould,  26  W.  Va.  258. 

Ownership  of  Animal.  —  An  allega- 
tion as  to  the  ownership  of  the  animal 
is  unnecessary.  Grise  v.  State,  37  Ark. 
456;  State  V.  Bruner,  iii  Ind.  98;  Com. 
V.  Lufkin,  7  Alleij  (Mass.)  579;  Com. 
V,  McClellan,  101  Mass.  34;  Com.  v. 
Whitman,  ir8  Mass.  458;  State  v. 
Brocker,  32  Tex.  611,  overrulitii^  Staie 
•J'.  Smith,  21  Tex.  748;  Benson  v.  State, 
I  Tex.  App.  6;  Turman  v.  State,  4  Tex. 
App.  586;  Darnell  v.  State,  6  Tex.  App. 
482;  State  V.  Gould,  26  W.  Va.  258. 

But  where  the  ownership  is  alleged, 
it  becomes  a  matter  of  description 
which  must  be  proved  as  alleged. 
State  V.  Bruner,  iii  Ind.  98. 

Maliciously  and  Mischievously.  — In  a 
prosecution  under  Miss.  Code  (1871), 
§  2708  (Anno.  Code  (1892),  §  1022),  pro- 
viding that  "any  person  who  shall 
maliciously,  either  out  of  a  spirit  of  re- 
venge or  wanton  cruelty,  or  who  shall 
mischievously  kill,  maim  or  wound  or 
injure"  any  animal,  shall  be  punished, 
etc.,  it  must  be  alleged  that  the  offense 
was  committed  "  maliciously  "  or  "mis- 
chievously." Thompson  v.  State,  51 
Miss.  353.  See  also  Duncan  v.  State, 
49  Miss.  331. 

But  an  averment  that  the  ofTense 
was  "maliciously"  committed  is  suffi- 
cient, without  adding  the  words  "out 
of  a  spirit  of  revenge  or  wanton  cru- 
elty," these  words  being  merely 
descriptive  of  "  maliciously."  Rem- 
bert  V.  State,  56  Miss.  280. 

Wilfully  and  Wantonly.  —  Under  the 
former  statute  of  Texas  (Pasc.  Dig., 
art.  2345)  making  it  a  misdemeanor  to 
*'  wilfully  and  wantonly  kill,  maim, 
wound,"  etc.,  any  dumb  animal,  an  in- 


dictment which  failed  to  allege  that  the 
killing  was  done  both  "  wilfully  "  and 
"  wantonly  "  was  insufficient.  State  v. 
Rector,  34  Tex.  565;  Branch  v.  State,  41 
Tex.  622.  But  under  Willson's  Crim. 
Stat.  (1889),  art.  680  (Tex.  Pen.  Code 
(1895),  art.  787),  the  use  of  both  words 
is  unnecessary,  the  language  of  the 
statute  being  "  wilfully  or  wantonly.' 
Rountree  v.  State,  10  Tex.  App.  no. 
And  an  information  charging  that  de- 
fendant did  "  cruelly  and  unmercifully 
beat  and  abuse"  a  horse  need  not 
allege  that  the  act  was  wilfully  and 
wantonly  done.  Burgman  v.  State, 
(Tex.  Crim.  App.  1S96)  34  S.  W.  Rep. 
III. 

Duplicity —  Surplusage. — Where  the 
statute  makes  any  person  liable  to  pun- 
ishment who  cruelly  ill-treats  an  ani- 
mal in  any  of  certain  ways  named,  and 
further  provides  for  the  punishment  of 
any  person  who  has  the  charge  and 
custody  of  the  animal  for  an  unneces- 
sary failure  to  provide  for  its  wants,  an 
indictment  joining  both  these  offenses 
is  bad  for  duplicity,  but  if  the  latter 
offense  be  insufficiently  charged,  as  on 
account  of  the  omission  of  an  aver- 
ment that  the  defendant  had  charge  and 
custody  of  the  animal,  the  latter  alle- 
gation may  be  rejected  as  surplusage. 
State  V.  Haskell,  76  Me.  399. 

Where  a  complaint  charged  that  the 
defendant,  at  a  time  and  place  named, 
"  with  force  and  arms  unlawfully  and 
cruelly  did  beat  and  torture  a  certain 
horse,  of  the  property  of  him  the  said 
Edward  Bassett  and  one  Knott  P.  Mar. 
tin"  etc.,  it  was  held  that  it  did  not 
charge  two  separate  and  distinct 
offenses  under  Mass.  Gen.  Stat,  (i860), 
c.  165,  §  41,  providing  that  "  whoever 
cruelly  beats  or  tortures  any  horse  or 
other  animal,  whether  belonging  to 
himself  or  another,  shall  be  punished," 
etc.     Com.  V.   Lufkin,  7  Allen  (Mass.) 

579- 

For  another  form  see  Stephens  v. 
State,  65  Miss.  329. 

For  the  formal  parts  of  an  indictment, 
information  or  criminal  complaint  in  a 
particular  jurisdiction  consult  the  titles 
Indictments;  Informations;  Criminal 
Complaints,  ante,  p.  930. 

For  statutes  of  the  various  states  re- 
lating to  cruelty  to  animals  see  as  fol- 
lows: 

Alabama.  —  Crim.  Code  (1886),  §  3872; 
Acts  (1894-5),  p.  697. 

Arkansas. — Sand.  &  H.  Dig.  (1894), 
§  1516  <f^  seq. 


996 


Volume  5. 


6743. 


CRUELTY  TO  ANIMALS. 


6743. 


Form  No.  6743.' 

State  of  Maryland,   Washington  County,  to  wit: 

The  jurors  for  the  state  of  Maryland^  for  the  body  of  Washington 
county,  upon  their  oath  do  present,  that  Caspar  Falkenham,  late  of 
Washington  county  aforesaid,  on  the  fourth  day  of  October,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  ninety,  with  force  and 
arms,  in  said  county  of  Washington,  unlawfully  and  wilfully  did  then 
and  there  engage  in  an  act  of  cruelty  to  a  certain  animal,  to  wit,  a 
horse;  contrary  to  the  form  of  the  act  of  assembly  in  such  case  made 
and  provided,  and  against  the  peace,  government  and  dignity  of  the 
state. 


California.  —  Pen.  Code  (1897),  p.  506 
et  seq. 

Colorado.  —  Mills'  Anno.  Stat.  (1891), 
§  104. 

Connecticut.  —  Gen.  Stat.  (1888),  |§ 
1458.  1543. 

Delaware.  —  Rev.  Stat.  (1893),  p.  403, 

Florida.  —  Rev.  Stat.  (1S92),  §§  2509, 
2510. 

Illinois.  —  Starr  &  C.  Anno.  Stat 
(1896),  p.  1261,  par.  122. 

Indiana.  —  Horner's  Stat.  (1896),  § 
2101. 

Iowa.  — Code  (1897),  §§  4969,  4972. 

Kansas.— Gen.  Stat.  (1889),  §§  2420, 
2421,  242S. 

Kentucky.  — Sta.1.  (1894),  §§  1246, 
1249. 

Maine.— Rev.  Stat.  (1883),  c.  124,  §  29. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
207,  ij§  52.  53. 

Michigan.- How.  Anno.  Stat.  (1882), 

§§     9391.9393.  V         o«       , 

Minnesota.  —  Stat.  (1894),  §§  6792, 
6793. 

Alississippi.  —  Anno.  Code  (1892),  §§ 
1014-1018. 

Missouri.  —  Rev.  Stat.  (1889),  ijg  3896. 
3897. 

Montana.  — Pen.  Code  (1895),  ^§  1090- 
1093. 

Nebraska.  —  Comp.  Stat.  (1897),  §  6718 
et  seq. 

New  Hampshire.  — ^uh.  Stat.  (1891), 
c.  267,  §  I. 

Newfersey.  —  Gen.  Stat.  (1895),  p.  34, 
§  17  et  seq. 

New  York.  —  Pen.  Code,  §§  655,  657, 
659. 

North  Carolina.— Code  (1883),  §§ 
2482,  2484,  2486. 

A^orth  Dakota.  — Rev.  Codes  (1895), 
^  7560. 

0/4/V7.  —  Bates'  Anno.  Stat.  (1897),  § 
6951. 

Oklahoma.  — Sr.&x..  (1893),  §  2485. 


Oregon.  —  Hill's  Anno.  Laws  (1892), 
§^  1878-1880. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  1 158,  §  148  et  seq. 

Rhode  Island.  —  Gen.  Laws  (1896),  c. 
114,  §^  I,  2. 

South  Carolina. — Crim.  Stal.  (1893), 
§  505-508. 

7V««^jj^^.  —  Code  (1896),  §§  2857, 
2859. 

Texas.  —  Pen.  Code  (1895),  art.  787. 

Utah.  —  Ke\.   Stat.   (1S98),   tig  4453, 

4455. 

Vermont.  —  Stat.     (1894),     §§    4993, 

4994. 

Virginia.— Code  (1887),  §  3796, 
Washington.  —  Pen.    Code    (1893),   § 

2321. 

West  Virginia.  —  Code  (1891),  p.  919, 

§14. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889).  §  4445- 

Wyoming.  —  Laws  (1895),  p.  57,  Ss§ 
I,  2. 

1.  This  form  is  drawn  under  Md. 
Laws  (1890),  c.  198,  §  I,  which  provides 
that  "any  person  who  wilfully  sets 
on  foot,  instigates,  engages  in,  or  in 
any  ways  furthers  any  act  of  cruelty 
to  any  animal,"  etc.,  shall  be  deemed 
guilty  of  a  misdemeanor.  The  charg- 
ing part  of  the  indictment  is  the  same 
as  that  held  sufficient  in  State  v.  Falk- 
enham,  73  Md.  463. 

For  similar  statutes,  see 

Arkansas.  —  Sand.  &  H.  Dig.  (1894), 

§  1521- 

Georgia.  — 3  Code  (1895).  §g  703.  705. 

Montana.— Pen.  Code  (1S95).  ^  1090. 

New  York.  —  Pen.  Code.  §  655. 

North  Carolina.— Code  (1883).  g  2487. 

Tennessee.  —  Code  (1896),  §  2863. 

An  indictment  charging  that  the  de- 
fendant did  "  cruelly  drive  and  cruelly 
treat "  two  bay  mares  charges  an 
offense  within  the  (;<'orjj/a  statute.  Mc- 
Kinne  v.  State,  Si  Ga.  164. 


997 


Volume  5. 


6744. 


CRUELTY  TO  ANIMALS. 


6745. 


II.  CRUELLY  ABANDONING. 

Form  No.  6744.' 
Commonwealth  of  Massachusetts^  {  At   the  Superior   Court    begun 

County  of  Hampshire.  \      '     and     holden    at   Northampton, 

within  and  for  the  county  of  Hampshire,  on  the  second  Monday  of 
February,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-eight. 

The  jurors  for  said  commonwealth  on  their  oath  present  that  John 
Doe,  late  qI Northampton,  in  the  county  oi  Hampshire,  on  \.\\q  first  day 
of  January,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-eight,  at  Northampton  aforesaid,  in  the  county  of  Hampshire 
aforesaid,*  having  the  charge  and  custody  of  a  certain  cow,  which  by 
reason  of  a  broken  leg  was  unable  to  walk,  and  incapable  of  taking 
care  of  itself  or  supporting  itself  with  food,  did  then  and  there  unlaw- 
fully and  cruelly  abandon  the  said  cow,  against  the  peace  and  dignity 
of  said  commonwealth,  and  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided, 

Daniel  Webster,  District  Attorney. 

III.  Cruelly  and  needlessly  killing.^ 


Form  No.  6745 

The  State  of  Arkansas   ) 

against  >  Indictment. 

John  Doe.  ) 

■  1.  Massachusetts. — Pub.  Stat.  (1882), 
c.  207,  §  53.  See  also  list  of  statutes 
cited  supra,  note  i.  p.  995. 

2.  Beqoisites  of  Indictment  —  Manner 
of  Killing.  —  An  indictment  for  need- 
lessly killing  an  animal  need  not  state 
the  manner  nor  the  particular  circum- 
stances of  the  killing.  State  v.  Green- 
lees,  41  Ark.  353. 

Value  and  Ownership.  —  No  allega- 
tions as  to  the  value  and  ownership  of 
the  animal  killed  are  necessary.  Grise 
V.  State,  37  Ark.  456. 

See  also  supra,  note  i,  p.  995. 

Sufficient  Indictment. —  An  indictment 
charging  that  the  defendant  did  "  know- 
ingly, wilfully,  and  needlessly  act  in  a 
cruel  manner  towards  a  certain  fowl, 
to  wit,  a  chicken,  by  killing  said  f^?<rX'^«," 
is  sufficient  under  N.  Car.  Code  (1883), 
§  2482.     State  V.  Neal,  120  N.  Car.  613. 

Insufficient  Complaints. — A  complaint 
charging  that  defendant  did,  at  a  cer- 
tain time  and  place,  "unlawfully  and 
cruelly  shoot  and  injure  a  certain  dog, 
by  then  and  there  shooting  said  dog 
with  leaden  shot  and  killing  him,"  was 
held  insufficient  under  Ind.  Rev.  Stat. 
(1881),  §  2101,  the  needless  killing  being 
the  offense,  and  not  the  cruel  killing. 
Hunt  V.  State,  3  Ind.  App.  383. 


Johnson  Circuit  Court, 


A  complaint  in  the  following  words, 
to  wit: 
"  Genesee  County,  ss. 

John  Mohr,  being  duly  sworn,  says: 
Tiiat  on  the  i^th  day  oi  July,  i87jr,  he 
was  at  the  house  of  Squire  Perry,  in 
the  town  of  Darien,  in  said  county, 
and  he  saw  a  man  on  a  peddler's  cart, 
in  said  town,  shoot  at  a  dog  of  and 
belonging  to  said  Squire  Perry,  in  said 
town;  that  the  said  dog  was  hit  in  the 
neck,  and  he  believes  the  said  dog  will 
die.  his 

John   X   Mohr. 
mark 

Sworn  before  me  this  i^th  day  of 
July,  187J. 

A.  H.  Perry,  J.  P." 
was  held  insufficient,  under  the  Nex^i 
York  statutes  making  it  a  misdemeanor 
to  "  maliciously  "  or  "  needlessly"  kill 
any  animal  (Laws  (1866),  c.  682,  Laws 
(1867),  c.  375,  §  i),  to  confer  jurisdic- 
tion upon  the  justice  to  issue  a  war- 
rant of  arrest  thereupon,  there  being 
no  allegation  from  which  he  could  in- 
fer that  the  shooting  was  malicious  or 
needless.  Warner  v.  Perry,  14  Hun 
(N.  Y.)  337. 

3.  Arkansas. —  Sand.  &  H.  Dig.  (1894), 
§  1 5 16.     See  also  list  of  statutes  cited 


998 


Volume  5. 


6746. 


CRUELTY  TO  ANIMALS. 


6746. 


The  grand  jury  oi  Johnson  county,  in  the  name  and  by  the  authority 
of  the  state  of  Arkansas^  accuse  John  Doe  of  the  crime  of  needlessly 
killing  an  animal,  committed  as  follows,  viz. :  The  said  John  Doe,  on 
the  first  day  of  April,  iS98,  in  the  county  aforesaid,  did  unlawfully 
and  needlessly^  kill  a  certain  hog,  against  the  peace  ancl  dignity  of  the 
state  of  Arkansas. 

Dante/  Webster,  Prosecuting  Attorney. 

IV.  TORMENTING  AND  TORTURING.^ 


1.  By  Cruelly  Beating. 

Form  No.  6746.' 

{Commencing  as  tn  Form  No.  67Ji.Jf,  and  continuing  down  to  •)  did 
then  and  there  unlawfully  and  cruelly  beat  a  certain  horse,  against 
the  peace  {concluding  as  in  Form  No.  6744)- 


supra,  note  I,  p.  995.  The  form 
given  in  the  text  has  been  held  sufficient 
in  Grise  v.  State,  37  Ark.  456;  State  v. 
Greenlees,  41  Ark.  353. 

1.  For  the  word  "  needlessly  "  sub- 
stitute "  cruelly  "  where  the  statute  em- 
ploys the  latter  word. 

2.  Requisites  of  Indictment  —  Gener- 
ally. —  Consult  note  i,  p.  995,  supra. 

Specific  Acts  of  Torture.  —  In  charg- 
ing the  offense  of  torturing  an  animal, 
the  method  of  torture,  as  well  as  the 
effect  produced,  must  be  stated.  Avery 
V.  People.  II  111.  App.  332;  State  v. 
Bruner,  11 1  Ind.  98;  State  v.  Pugh,  15 
Mo.  509;  State  v.  Watkins,  loi  N.  Car. 
702. 

Thus  an  indictment  charging  that 
the  defendant  did  "  knowingly  and 
wilfully  and  unlawfully  torture,  tor- 
ment and  act  in  a  cruel  manner  to- 
wards a  certain  animal,  to  wit,  a  hog, 
the  property  of,"  etc.,  without  setting 
forth  the  facts  which  constituted  such 
torturing,  etc.,  was  held  fatally  defec- 
tive under  the  North  Carolina  statute 
(Code  (1883),  §  2482).  State  v.  Watkins, 
loi  N.  Car.  702. 

And  an  indictment  for  torturing  ani- 
mals which  charges  merely  the  act  of 
tying  brush  or  boards  to  the  tail  of  a 
horse,  unaccompanied  by  averments 
declaring  the  effects  of  the  act,  is 
insufficient;  for  such  an  act  does  not 
necessarily  produce  torture.  State  v. 
Pugh,  15  Mo.  509. 

Sufficient  Indictment.  —  An  allegation 
in  a  complaint  drawn  under  Me.  Rev. 
Stat.  (1883),  c.  124,  §  29,  that  defendant 
"did  cruelly  and  unlawfully  torment, 
torture,    malm,   beat,  wound   and    de- 


prive of  necessary  sustenance"  a  horse 
belonging  to  himself,  was  held  to 
charge  but  one  offense.  State  v.  Has- 
kell, 76  Me.  399. 

3.  Massachusetts.  —  Pub.  Stat.  (1882), 
c.  207,  S  52.  See  also  list  of  statutes 
cited  supra,  note  i,  p.  995.  The 
charging  part  of  this  form  is  taken 
from  Com.  v.  McClellan,  loi  Mass.  34. 

The  intent  with  which  the  cruel  beat- 
ing was  done  is  immaterial  and  need 
not  be  alleged.  State  v.  Hackfath,  20 
Mo.  App.  614. 

Ownership.  —  A  complaint  under  the 
Massachusetts  statute  charging  that  the 
defendant  at  a  time  and  place  named, 
"having  the  charge  or  custody  of  an- 
other certain  animal,  to  wit,  a  coiv,  did 
then  and  there  cruelly  torture  and  tor- 
ment said  cow,  by  then  and  there  cruelly 
beating,  bruising  and  wounding  said 
cow,"  was  held  sufficient  without  any 
allegation  as  to  the  ownership  of  the 
animal,  or  that  the  cruelty  was  un- 
necessary. The  words  "having  the 
charge  or  custody  of"  may  be  rejected 
as  surplusage.  Com.  v.  Whitman,  118 
Mass.  458. 

Forms  Held  Sufficient.  —  An  indict- 
ment, omitting  the  formal  parts,  which 
charged  that  the  defendant  did  "  un- 
lawfully, withaclub,/<'«r  feet  in  length 
and  two  inches  thick,  maliciously  and 
cruelly  beat  a  certain  horse,  the  prof)- 
erty  of  him,  the  said  William  Hackfath, 
from  the  effects  of  which  the  said  horse 
did  then  and  there  die,"  was  held  suffi- 
cient under  the  Missouri  statute.  State 
V.  Hackfath,  20  Mo.  App.  614. 

A  complaint  under  the  Massachusetts 
statute  charging  that  the  defendant,  at 


999 


Volume  5. 


6747. 


CRUELTY  TO  ANIMALS. 


6748. 


2.  By  Inflicting  Unnecessary  Cruelty. 

Form  No.  6747.' 

{Commencing  as  in  Form  No.  67JtJf,  and  continuing  down  to  *)  having 
the  charge  and  custody  of  a  certain  horse,  did  then  and  there  unlaw- 
fully and  unnecessarily  inflict  unnecessary  cruelty  upon  the  said  horse, 
by  compelling  it  to  draw  a  heavy  load  while  provided  with  unsuitable 
harness,  which  cut  into  the  flesh  of  the  said  horse,  thereby  causing  it 
great  pain  and  suffering,  against  the  peace  {co7icluding  as  in  Form 
No.  67U)- 

3.  By  Mutilating  or  Wounding.^ 


a  time  and  place  named,  "with  force 
and  arms  unlawfully  and  cruelly  did 
beat  and  torture  a  certain  horse,  of  the 
property  of  him,  the  said  Edward  Bas- 
sett  and  one  Knott  P.  Martin"  etc.,  is 
sufficient,  and  does  not  charge  two 
offenses.  Com.  v.  Lufkin,  7  Allen 
(Mass.)  579. 

An  indicment  in  the  following  words, 
to  wit: 

"The  grand  jurors  of  the  state  of 
West  Virginia,  in  and  for  the  body  of 
the  county  of  Wood,  and  now  attending 
the  said  court,  upon  their  oaths  present, 
that  Stephen  Gould,  on  October  ij,  a.  d. 
i8<5'/,  in  the  said  county,  did  unlawfully 
and  wilfully  and  cruelly  beat,  shoot, 
torture  and  otherwise  ill-treat  a  certain 
beast  called  a  mule;  the  owner  or  owners 
of  which  said  mule  is  to  the  grand  jurors 
unknown,  contrary  to  the  form  of  the 
statute  in  such  case  made  and  pro- 
vided, and  against  the  peace  and  dig- 
nity of  the  state,"  was  held  sufficient, 
the  words  "  shoot,  torture  and  other- 
wise ill-treat,"  and  the  allegation  as  to 
ownership,  being  regarded  as  surplus- 
age.    State  V.  Gould,  26  W.  Va.  258. 

For  other  forms  see  Com.  v.  Whit- 
man, 118  Mass.  458;  State  v.  Avery,  44 
N.  H.  392. 

1.  Massachusetts. — Pub.  Stat. (1882),  c. 
207,    ^  52.      See    also    supra,    note   i, 

P-  995. 

2.  Bequisites  of  Indictment. — Generally. 
—  Consult  note  I,  p.  995,  supra. 

The  manner  of  mutilating  should  be 
set  forth  in  the  indictment.  Avery  v. 
People,  II  111.  App.  332;  State  v.  Bru- 
ner,  ill  Ind.  98.  And  an  information 
charging  that  the  defendant  at  a  certain 
time  and  place  was  "guilty  of  cruelty 
to  a  certain  hog,  the  said  hog  then  and 
there  being  an  animal,  by  then  and 
there  mutilating  the  said  animal,  con- 
trary to  the  form  of  the  statute,"  etc., 
was  held  defective  in    that    it  did  not 


show  the  manner  and  character  of  the 
mutilation,  and  that  it  was  unlawful. 
Avery  v.  People,  11  111.  App.  332.  But 
an  information  charging  the  mutilation 
of  a  dog,  which  states  the  means  em- 
ployed in  the  commission  of  the  offense, 
need  not  describe  the  injury  inflicted 
upon  the  animal.  State  v.  Giles,  125 
Ind.  124. 

Dishorning  Cattle. —  Under  Stat.  12  & 
13  Vic,  c.  92,  §  2,  providing  that  "  if  any 
person  shall  cruelly  beat,  ill-treat,  over- 
drive, abuse,  or  torture.  *  *  *  any 
animal,"  every  such  offender  shall  be 
liable,  etc.,  it  was  held  that  the  defend- 
ant was  properly  convicted  for  the  of- 
fense of  dishorning  cattle  upon  an 
information  charging  that  he  "  did  ill- 
treat,  abuse  and  torture,  and  cause  to 
be  ill-treated,  abused  and  tortured,  six- 
teen oxen  on  the  8th  and  sixteen  other 
oxen  on  the  /5M  day  of  October,  i%88." 
Ford  7J.  Wiley,  L.  R.  23  Q.  B.  Div.  203. 
See  also  Brady  v.  M'Argle,  15  Cox  C. 
C.  516. 

Maiming.  —  An  information  charging 
that  the  accused,  at  a  certain  time  and 
place,  "did  then  and  there  unlawfully, 
wilfully  and  wantonly  maim  a  dumb 
animal,  to  wit,  a  certain  dark-bay  mule, 
the  same  being  a  dumb  animal  such  as 
is  enumerated  in  article  713  of  the  Penal 
Code  of  the  state  of  Texas,  and  being 
the  properly  of  him,  the  said  "  defend- 
ant, etc.,  was  held  sufficient  under 
Pasc.  Dig.  Tex.,  art.  2345  (Willson's 
Crim.  Stat.  Tex.  (1889),  art.  680).  Turn- 
man  V.  State,  4  Tex.  App.  586. 

Shooting  Cow, — An  indictment  charg- 
ing that  the  defendant  wilfully  and 
unlawfully  "did  cruelly  beat  and  shoot, 
and  needlessly  mutilate,  torment  and 
torture  a  certain  useful  animal,  to  wit: 
one  cow,  the  property  oi  Joseph  Dixon, 
contrary  to  the  form  of  the  statute," 
etc.,  although  not  in  the  words  of  the 
statute,  was  held  to  sufficiently  charge 


1000 


Volume  5. 


6748.  CRUELTY  TO  ANIMALS.  6750. 

Form  No.  6748. 
(Precedent  in  State  v.  Bruner,  iii  Ind.  99.)" 

[State  of  Indiana,  \  -,2 
/>//&^  County.  P^J 
Before  me  John  M.  White,  a  justice  of  the  peace  for  said  county, 
came  William  Long,  who  being  duly  sworn  according  to  law,  deposeth 
and  sayeth  that  on  or  about  the  ^Ist  day  of  November,  in  the  year 
I&95,  at  the  county  oi  Pike  zxii\  State  oi  Indiana,  Ralph  Smith  and 
Edward  Bruner,  late  of  said  county,  did  then  and  there  unlawfully 
and  cruelly  torture,  torment  and  needlessly  mutilate  a  certain 
animal,  to  wit,  a  goose,  the  property  of  some  person  or  persons  to  the 
affiant  unknown,^  by  then  and  there  unlawfully  turpentining  and 
burning,  in  a  cruel  and  wanton  manner,*  the  s^xdi  goose. 

[  William  Long. 
Subscribed  and  sworn  to  this  twenty -first  day  ai  November,  iS85. 

John  M.  White,  Justice  of  the  Peace.]* 

Form  No.  6749.* 

North  '"arolina,  )  Superior  Court, 

Cumberland  County.  )  Spring  Term,  \Z98. 

The  jurors  for  the  state,  upon  their  oath  present,  that  John  Doe^ 
late  of  the  county  of  Cumberland,  on  the  first  day  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight,  at  and 
in  the  said  county,  did  unlawfully  and  needlessly  mutilate  a  certain 
cow,  by  then  and  there  twisting  off  the  tail  of  said  cow,^  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  state. 

Daniel  Webster^  Solicitor. 

4.  Causing  or  Permitting  Torture.' 

the  offense  of  wounding  under  North  torturing,  etc.,  though  perhaps  not  jo 

Carolina  statute  (Code  (1883),  §  2482).  full  and  apt  a  description  of  the  offense 

State  V.  Butts,  92  N.  Car.  784.  as   might   have   been  given,  was  held 

Other  Forms.  —  For  other   forms  see  sufficient. 

Hodge    z/.  State,  11    Lea    (Tenn.)   528;  6.  North   Carolina.— Code  (1883),   § 

State  V.  Brocker,  32  Tex.  612;    Benson  2482.      See     also    supra,     note     i,    p. 

V.  State.  I    Tex.   App.   6;    Rountree  v.  995.      The    offense   is  charged   in  the 

State,  10  Tex.  App.  no.  language  used  in   State  v.  Allison,  90 

1.  Indiana.  —  Horner's  Stat.  (1896).  N.  Car.  733,  which  was  held  sufficient 
§    2101.       See     also    supra,    note     i,  under  this  statute. 

p.  995.  6.  See  supra,  note  2,  p.  looo. 

2.  The  words  and  figures  enclosed  by  7.  Sufficient  Complaint.  —  A  complaint 
[  ]  will  not  be  found  in  the  reported  under  Mass.  Pub.  Stat.  (1882),  c.  207, 
case,  but  have  been  added  to  render  §  53,  alleging  that  the  defendant,  at  a 
the  form  complete.  certain  time  and  place.  "  was  the  person 

3.  The  allegation  that  the  goose  was  having  the  charge  and  custody  of  a  cer- 
"  the  property  oi>  some  person  or  per-  tain  animal,  to  wit,  &/ox,  and  did  then 
sons  to  the  affiant  unknown  was  held  and  there  knowingly  and  wilfully  per- 
equivalent  to  an  averment  that  the  mit  the  said  >jr  to  be  subjected  to  un- 
goose  was  a  domestic  fowl,  so  as  to  be  necessary  suffering,  by  then  and  there 
an  animal  within  the  meaning  of  the  knowingly  and  wilfully  turning  the 
statute.  sa.\A  fox  loose,  to  be  hunted  by  divers 

4.  The  charge  as  to  the  method  of  dogs,  in  consequence  of  which  turning 

1001  Volume  5. 


6750. 


CRUELTY  TO  ANIMALS. 


6751. 


Form  No.  6750.' 

(Precedent  in  Com.  v.  Thornton,  113  Mass.  457.) 

\{Co'mmencing  as  in  Form  No.  QTJpt-,  and  continuing  down  to  *)]l 
having  the  charge  and  custody  of  a  certain  animal,  to  wit,  a  dog, 
did  then  and  there  knowingly  and  wilfully  authorize  and  permit  said 
dog  to  be  subjected  to  unnecessary  torture,  suffering  and  cruelty,  by 
then  and  there  knowingly  and  wilfully  suffering  and  permitting  said 
dog  to  be  bitten,  mangled  and  cruelly  tortured  by  a  certain  other 
dog,  [against  {concluding  as  in  Form  No.  67^).]^ 

V.  FAILURE  TO  PROVIDE  PROPER  FOOD  OR  SHELTER.^ 


loose  of  the  saidyc?^,  as  aforesaid,  the 
said  fox  was  hunted  by  divers  dogs 
and  thereby  subjected  to  unnecessary 
suffering  as  aforesaid,"  was  held  to 
sufficiently  charge  an  offense.  Com. 
V.  Turner,  145  Mass.  296. 

Insufficient  Complaint.  —  A  complaint 
in  a  prosecution  for  cruelty  to  an  ani- 
mal committed  by  an  agent,  servant  or 
employee,  under  N.  J.  Laws(i88o),  §  13, 
"  Cruelty  to  Animals,"  charging  that 
defendant  "did  by  his  agent  and  em- 
ployee, cruelly  torture,  torment  and 
beat  one  living  animal,  to  wit:  one 
mule,"  etc.,"  and  did  by  such  agent, beat 
such  mule  by  striking  him  many  times 
with  a  heavy  whip,  using  the  butt  end," 
etc.,  "  besides  kicking  the  mule  many 
times,"  was  held  insufficient,  because 
it  does  not  charge  that  the  defendant 
did,  by  his  agent,  servant  or  employee, 
cause  or  procure,  or  was  active  in  some 
way  in  causing  or  procuring, the  cruelty 
complained  of  to  be  committed.  Roe- 
ber  V.  Society,  etc.,  47  N.  J.  L.  237. 

1.  Massachusetts.  —Vxxh.  Stat.  (1S82), 
c.  207,  §  53.  See  also  supra,  note  i, 
p.  995- 

2.  The  matter  to  be  supplied  within 
[  ]  will  not  be  found  in  the  reported 
case, 

3.  Requisites  of  Indictment  —  Gener- 
ally. — Consult  note  i,  p.  995,  su- 
pra. 

Animals  in  Defendant's  Charge.  —  An 
allegation  that  the  defendant  had  the 
charge  and  custody  of  the  animal  is 
necessary  in  an  indictment  for  failing 
to  provide  proper  food,  etc.  State  v. 
Haskell,  76  Me.  399;  State  v.  Spink, 
(R.  I.  1896)  36  Atl.  Rep.  91.  See  also 
Com.  V.  Whitman,  118  Mass.  458. 

But  a  general  averment  that  the  de- 
fendant had  the  charge  and  custody  of 
the  animal  is  sufficient,  without  charg- 
ing the  custody  "as  owner  or  other- 
wise," or  otherwise  defining  it.  State 
V.  Clark,  86  Me.  194. 


Unnecessarily. — The  omission  of  the 
word  "unnecessarily"  renders  the  in- 
dictment insufficient.  Ferrias  v.  Peo- 
ple, 71  111.  App.  559. 

Time. — A  count  in  a  complaint 
charging  the  defendant  with  neglect- 
ing to  provide  certain  oxen  with  proper 
food,  drink  and  protection  from  the  first 
to  the  fourteenth  day  of  a  certain  month, 
charges  but  a  single  offense,  and  prop- 
erly charges  it  as  a  continuing  one. 
State  V.  Bosworth,  54  Conn.  i. 

Forms  Held  Sufficient.  —  A  complaint 
which  charged,  omitting  the  formal 
parts,  that  the  defendant  during  a  cer- 
tain period  of  time  "  was  the  person 
having  the  charge  and  custody  of  a 
certain  animal,  to  wit,  a  horse,  and  it 
was  then  and  during  the  whole  time 
aforesaid  the  duty  of  the  said  Rodney 
Edniands  to  provide  the  said  horse  with 
proper  shelter  and  protection  from  the 
weather;  and  that  the  said  Rodney  Ed- 
munds did  then  and  during  the  whole 
time  aforesaid  there  unnecessarily  and 
cruelly  fail  to  provide  the  said  horse 
with  proper  shelter  and  protection  from 
the  weather,"  etc.,  was  held  to  clearly 
and  sufficiently  describe  an  offense  un- 
der Mass.  Pub.  Stat.  (1882),  c.  207,  § 
52.  The  words  "and  cruelly"  were 
mere  surplusage.  Com.  v.  Edmands, 
162  Mass.  517. 

In  State  v.  Clark,  86  Me.  194,  the  fol- 
lowing form  was  held  sufficient,  to  wit: 

''  Eben  N.  Perry,  on  the  twelfth  day 
oi  January,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  ninety- 
three,  in  behalf  of  said  state,  on  oath 
complains  that  Frederick  A.  Clark,  of 
Portland,  in  said  county,  on  the  eleventh 
day  oi  January,  A.  D.  i89j>,  at  said  Port- 
land, then  and  there  having  the  custody 
and  control  of  a  certain  horse,  did  then 
and  there  unnecessarily  fail  to  provide 
such  horse  with  proper  shelter  and  pro- 
tection from  the  weather,  against  the 
peace  of  the  State,  and  contrary  to  the 


1002 


Volume  5. 


6751.  CRUELTY  TO  ANIMALS.  6753. 

1.  Generally. 

Form  No.  675 1.> 

{Commencing  as  in  Form  No.  6744,  and  continuing  down  to  *)  having 
then  and  there  the  charge  and  custody  of  a  certain  ^horse,  did  then 
and  there  unlawfully  and  unnecessarily  fail  to  provide  the  said //^ry^ 
with  proper  food  and  drink  (or  shelter  or  protection  from  the  weather), 
against  the  peace  {concluding  as  in  Form  No.  6744). 

2.  Impounding-  Without  Food  and  Water. 

Form  No.  6752.' 

In  the  Superior  Court  of  the  County  of  Sacramento,  State  of  Cali- 
fornia, Monday,  the  third  diZ.^  of  February,  a.  d.  \W6. 
The  People  of  the  State  of  California  ) 
against  v 

fohn  Doe.  1 

John  Doe  is  accused  by  the  grand  jury  of  the  county  of  Sacramento, 
state  of  California,  by  this  indictment,  of  a  misdemeanor  committed 
as  follows:  The  ^zXdi  John  Doe,  on  the  fifteenth  day  of  March,  a.  d. 
eighteen  hundred  and  ninety-eight,  at  the  county  of  Sacramento,  afore- 
said, did  impound  (or  cause  to  be  impoundea)  in  a  certain  pound  there 
situate  tivo  certain  co^us,  and  did  then  and  there  unlawfully  fail  to 
supply  the  said  cows  during  such  confinement  as  aforesaid  with  a 
sufficient  quantity  of  good  and  wholesome  food  and  water,  contrary 
to  the  form,  force  and  effect  of  the  statute  in  such  case  made  and 
provided,  and  against  the  peace  and  dignity  of  the  people  of  the 
r.tate  of  California. 

Daniel  Webster,  District  Attorney. 

3.  Exposing  Team  to  Cold  and  Stormy  Weather. 

Form  No.  6753.' 

State  of  Nebraska,  ) 
County  of  Colfax.    \ 

State  of  Nebraska  )  At  the  February  Term,  a.  d.  iS98,  of  the  District 
against  [•     Courtof  the  ^<?«rM  Judicial  District  of  the  State 

John  Doe.  )  of  Nebraska,'fi\\.\<\Vi  and  for  the  County  of  Colfax. 
At  the  February  term  of  the  District  Court  of  the  Fourth  Judicial 
District  of  the  staX^  oi  Nebraska,  within  and  for  the  county  of  Col- 
fax, in  said  state,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fiinety-eight,  the  grand  jurors,  chosen,  selected  and  sworn  in  and 
for  the  county  of  Colfax,  in  the  name  and  by  the  authority  of  the 
state  of  Nebraska,  upon  their  oaths  present,*  thdit  John  Doe,  late  of 
the  county  aforesaid,  on  the  first  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-eight,  in  the  county  of 

form  of  the  statute  in  such  case  made        2.  California.—  Pen.  Code  (1897).  p. 
and  provided."  510,   §  12.      See    also    supra,  note   3. 

1.  Massachusetts.  —  Pub.  Stat.  (1882),     p.  1002. 
c.   207,  ^   52.     See  also  supra,  note   i,         3.  Nebraska.  —  Comp.    Stat.    (1897), 
p.  995,  and  note  3.  p.  1002.  §  6718.     See  also  supra,  note  3,  p.  1002. 

1003  Volume  5. 


6754.  CRUELTY  TO  ANIMALS.  6756. 

Colfax  aforesaid,  and  state  of  Nebraska,  did  wilfully,  unlawfully  and 
inhumanely  allow  his  team,  to  wit,  two  horses  (or  tnules  or  oxeti),  the 
property  of  him,  the  said  John  Doe,  to  stand  tied  upon  the  street 
for  four  consecutive  hours  at  a  time  in  cold  and  stormy  weather,  to 
the  injury  of  said  team,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  and  dignity  of  the 
state  of  Nebraska. 

Daniel  Webster,  County  Attorney. 

VI.  IN  TRANSPORTING. 

1.  Generally. 

Form  No.  6754.' 

(^Commencing  as  in  Form  No.  Qll^Jf.,  and  continuing  down  to  *)  having 
the  care  and  custody  of  a  certain  horse,  did  carry  the  said  horse  (or 
cause  the  said  horse  to  be  carried^  in  and  upon  a  certain  wagon  (or 
other  vehicle  or  otherwise')  in  an  unnecessarily  cruel  and  inhuman  man- 
ner, by  then  and  there  placing  the  said  horse  upon  its  back  in  and 
upon  the  said  wagon,  and  fastening  it  in  this  position  by  ropes  in 
such  a  manner  that  the  said  horse  was  made  to  suffer  great  pain  and 
torture  by  reason  of  being  so  fastened  as  aforesaid,  and  by  then  and 
there  driving  the  said  wagon  containing  the  said  horse  so  placed  and 
fastened  as  aforesaid,  against  the  peace  {concluding  as  in  Form 
No.  67U)' 

2.  By  a  Common  Carrier. 

Form  No.  6755.' 

(Commencing  as  in  Form  No.  6753,  and  continuing  down  to*)  that 
The  Pleasant  Valley  Railroad  Company  is  a  corporation  duly  incor- 
porated under  the  laws  of  this  state,  and  is  operating  a  line  of  rail- 
road in  said  county  of  Colfax;  and  that  on  the  first  day  oi  January, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight, 
in  the  county  of  Colfax  aforesaid,  and  state  of  Nebraska,  in  carrying 
and  transporting  live  stock,  to  wit,  two  hundred  hesid  of  steers,  on  its 
said  railway,  did  unlawfully  detain  such  stock  in  cars  for  a  longer 
continuous  period  than  twenty-four  hours,  without  supplying  the  said 
stock  with  food  and  water;  contrary  to  the  form  (concluding  as  in 
Form  No.  6753). 

VII.  IN  WORKING. 
1.  Overdriving". 

Form  No.  6756. 

(Precedent  in  Friedline  v.  State,  93  Ind.  370.; 

State  of  Indiana,  Randolph  County,  ss: 

Before  me,  Jacob  Dick,  a  justice  of  the  peace  for  said  county,  came 

1.  Massachusetts.  —  Pub.  Stat.  (1882),         2.  Nebraska. — Comp.   Stat.  (1897),  § 
c.   207,  §  53.     See   also  supra,  note   i,     6723.    See  also  J«/ra,  note  i,  p.  995. 
p.  995. 

1004  Volume  5. 


6757.  CRUELTY  TO  ANIMALS.  ^Ihl. 

Oliver  Y.  Sackman,  who,  being  duly  sworn  according  to  law,  deposeth 
and  saith;  That  on  or  about  the  2eth  day  oi  June,  i8^i,at  the  county 
of  \^RandolpfiY  and  state  of  Indiana,  one  Albert  Friedline,  late  of  said 
county,  did  then  and  there  unlawfully  and  cruelly  beat,  torture  and 
overdrive  a  team  of  horses,  mares  or  geldings,  at  said  county,  said 
horses,  mares  or  geldings  being  then  and  there  the  property  of  one 

,  contrary  to  the  form  of  the  statute  in  such  case  made  and 

provided,  and  against  the  peace  and  dignity  of  the  state  of  Indiana. 

[Oliver  Y.  Sackman. 
Subscribed  and  sworn  to  before  me,  this  twelfth  day  oi  July,  iSSL 
(seal)  Jacod  Dick,  J.  P.]  2 

Form  No.  6757. 

(Precedent  in  State  v.  Haley,  52  Mo.  App.  521.)* 

State  of  Missouri,   ) 
County  of  Monroe.  \  ^^' 
The  State  of  Missouri 

V. 

William  Haley. 

Before^.  E.  L.  Sevier,  a  justice  of  the  peace,  within  and  for  Mon- 
roe township,  Monroe  county,  Missouri. 

William  T.  Ragland,  assistant  prosecuting  attorney  within  and  for 
the  county  oi  Monroe  in  the  state  of  Missouri,  informs  the  justice  that 
one  William  Haley,  on  or  about  the  thirteenth  day  of  March,  a.  d.  \%91, 
at  the  said  county  of  Monroe,  did  then  and  there  unlawfully  torture 
two  domestic  animals,  to  wit,  two  black  mares,  the  property  of  ^5".  P. 
Nelson  and  D.  D.  Nelson,  by  then  and  there  forcing  said  animals 
through  mud  and  over  miry  roads  with  violent  speed,  by  cruelly 
whipping  them,  the  said  mares,  when  they  were  greatly  distressed, 
fatigued  and  injured  by  reason  of  having  been  previously  driven  over 
a  great  distance  of  muddy  roads,  and  with  great  speed,  against  the 
peace  and  dignity  of  the  state. 

William  T.  Ragland,  assistant  prosecuting  attorney  within  and  for 
the  county  of  Monroe,  as  aforesaid,  further  informs  the  justice  that 
William  Haley,  on  or  about  the  thirteenth  day  of  March,  iS91,  at  the 
saiJ  county  oi  Monroe,  did  then  and  there  unlawfully  and  cruelly  out- 
drive two  domestic  animals,  to  wit,  two  black  mares,  by  then  (and 
there)  driving  said  animals  through  mud  and  over  miry  roads  with 
violent  speed,  by  whipping  and  beating  them,  the  said  mares,  when 

1.  The  name  of  the  county  in  which  county  has  been  supplied  to  overcome 

the  offense  was  committed  was  omitted  the  defect  urged. 

in   the  above  affidavit,  which  was  ob-  2.  The  words  and  figures  enclosed  by 

jectedtoon  that  ground,  but  the  court  []   will   not  be  found  in  the   reported 

held  that  the  omission  was  immaterial,  case,  but  have  been  added   to   render 

as  the  venue  was  sufficiently  shown  by  the  form  complete. 

the  name  of  the  county  in  the  title,  and  3.  The  state  appealed  from  the  jud^- 

the   use   of   the   word  "there"  in  the  ment  of  the  circuit  court  quashing  this 

body  of  the  affidavit,   which  must  be  information,   and   the    judgment   was 

construed   as   referring  to   the    venue  reversed. 

stated   in   the  title.     The  name  of  the 

1005  Volume  5. 


6768.  ■     CRUELTY  TO  ANIMALS.  6759. 

they  were  greatly  distressed,  fatigued  and  injured  by  reason  of  having 
been  previously  driven  with  great  speed,  a  long  distance  over  muddy 
roads,  against  the  peace  and  dignity  of  the  state. 

William  T.  Ragland, 
Assistant  Prosecuting  Attorney. 

2.  Overloading. 

Form  No.  6758. 

(Precedent  in  People  v.  Tinsdale,  10  Abb.  Pr.  N.  S.  (N.  Y.  Gen.  Sess.)  374.)' 

City  and  County  of  New  York,  ss. 

The  jurors  of  the  people  of  the  state  of  New  York,  in  and  for  the 
body  of  the  city  and  county  oi  New  York,  upon  their  oath  present: 
That  George  W.  Tinsdale,  late  of  the  first  ward  of  the  city  of  New 
York  in  the  county  oi  New  York  aforesaid,  he  then  and  there  being  a 
conductor  of  a  passenger  car,  on  the  Bleecker-street  and  Fulton 
Ferry  Railroad  of  the  city  of  New  York,  and  Arthur  Taggart,  late  of 
the  same  place,  he  then  and  there  being  the  driver  of  said  passenger 
car  of  said  railroad,  on  the  second  day  of  January,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  sixty-eight,  at  the  ward,  city 
and  county  aforesaid,  with  force  and  arms  did  unnecessarily  over- 
load and  procure  said  passenger  car  to  be  overloaded,  then  and  there 
being  attached  to  said  passenger  car  two  living  creatures,  to  wit,  two 
horses;  by  means  whereof  on  a  certain  portion  of  the  route  of  the 
said  railroad  the  horses  so  attached  to  said  passenger  car  were  unable 
to  draw  said  passenger  car,  but  were,  by  reason  of  the  premises 
aforesaid,  overloaded,  overdriven,  tortured  and  tormented;  against 
the  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  of  the  people  of  the  state  of  New  York,  and  their  dignity. 

A.  Oakey  Hall,  District  Attorney. 

3.  When  Unfit  for  Labor. 

Form  No.  6759.' 

(^Commencing  as  in  Form  No.  67JfJf,  and  continuing  down  to  *)  having 
the  charge  and  custody  of  a  certain  horse,  which  said  horse,  by  reason 
of  sores  upon  its  back  and  legs,  was  then  and  there  unfit  for  labor, 
did  then  and  there  unlawfully  and  cruelly  drive  (or  work)  said  horse, 
against  the  peace  (concluding  as  in  Form  No.  QlJfJf). 

1.  This  form  sufficiently  charged  an  Porter,  164  Mass.  576.  In  that  case  it 
offense  under  N.  Y.  Laws  (1867),  c.  375.  was  moved  to  quash  the  indictment  on 
See  also  JM/ra,  notei,  p.  995.  the  ground  that  there   was  no  allega- 

2.  Massachuseits.  —  Pub.  Stat.  (1882),  tion  that  the  defendant  knew  of  the  un- 
c.  207,  §  53.  See  aXso  supra,  note  i,  fitness  of  the  horse  for  labor,  but  it  was 
p.  995.  This  form  is  substantially  the  held  that  no  such  allegation  was  neces- 
same  as  the  one  held  good  in  Com.  v.  sary. 

1006  Volume  5. 


6760. 


CRUELTY  TO  ANIMALS. 


6760. 


VIII.  PIGEON  Shooting. 

•   Form  No.  6760.' 

State  of  Maine. 

Cumberland,  ss.  At  the  Superior  Court  begun  and  .held  2X  Port- 
land,  within  and  for  the  said  county  of  Cumberland]  on  the  first 
Tuesday  of  September,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  ninety-eight. 

The  jurors  for  said  state,  upon  their  oath  present,  that  John  Doe,  of 
said  Portland,  in  the  county  of  Cumberland,  merchant,  at  Deering,  in  the 


1.  It  is  provided  by  statute  in  Maine 
(Rev.  Stat.  (1883),  c.  124,  t«  30),  that 
"  whoever  keeps  or  uses  any  live 
pigeon,  fowl  or  other  bird  for  a  target, 
or  to  be  shot  at,  either  for  amuse- 
ment or  as  a  test  of  skill  in  marksman- 
ship, and  whoever  shoots  at  any  bird 
as  aforesaid,  *  *  *  shall  be  punished," 
etc. 

Similar  statutes  are  as  follows: 

Connecticut.  —  Gen.  Stat.  (1888),  § 
2548. 

Massachusetts.  —  Pub.  Stat.  (1882),  c. 
207,  §  59. 

Michigan.  —  How.  Anno.  Stat  (1882), 
§  9392. 

Mississippi.  —  Anno.  Code  (1892), 
§1021. 

New  Hampshire.  —  Pub.  Stat.  (1891), 
c.  267,  ^  7. 

Rhode  Island.  — Gen.  Laws  (1896),  c. 
114,  §§  ir,  17. 

Vermont.  — Stat.  (1894),  §  4995. 

In  several  cases  prosecutions  for 
pigeon  shooting  have  been  brought 
under  the  general  statutes  prohibiting 
cruelty  to  animals,  but  not  always 
with  success.  Thus  under  the  Mis- 
souri statute  (Rev.  Stat.  (1889),  §  3896), 
making  it  a  misdemeanor  for  any 
person  to  "needlessly  kill  any  liv- 
ing creature,"  a  complaint  charging 
that  defendant  "did  unmercifully  kill 
certain  living  creatures  by  shooting 
them  with  a  shot-gun  for  the  purpose 
of  displaying  his  skill  as  a  marksman, 
to  wit,  twenty-five  pigeons,  contrary  to 
the  form  of  the  statute,"  etc.,  was  held 
not  to  charge  an  offense.  State  v.  Bo- 
gardus,  4  Mo.  App.  215. 

So  also  where  an  indictment  charged 
that  the  defendant  did  "unlawfully, 
wantonly  and  cruelly  shoot,  wound, 
torture,  abuse  and  ill-treat  a  certain 
pigeon,"  etc.,  and  the  evidence  showed 
that  the  defendant  at  a  shooting  match 
shot  at  two  pigeons  liberated  from  a 
trap,  killing  one  and  wounding  the 
other,    the    latter    being    immediately 


afterwards  killed,  and  both  birds  sold 
for  food,  it  was  held  that  the  defendant 
was  not  guilty  under  the  Pennsylvania 
statute  making  it  a  misdemeanor  for 
any  person  to  "  wantonly  or  cruelly  ill- 
treat  *  *  *  or  otherwise  abuse  any 
animal."  Com.  v.  Lewis,  140  Pa.  St. 
261. 

But  in  Waters  v.  People,  23  Colo.  33, 
the  plaintiff  in  error  was  convicted  in 
the  lower  court  upon  the  following 
complaint,  taken  from  the  file§  in  the 
case: 
' '  State  of  Colorado^  \ 

El  Paso  County.   S  *'" 

The  complaint  and  information  of 
Francis  B.  Hill  made  before  William 
Saxton,  Esq.,  one  of  the  Justices  of  the 
Peace  in  and  for  said  County,  on  the 
I2th  day  oi  January,  a.  d.  l%gj,  who, 
being  duly  sworn,  on  oath  says  that 
Frank  Waters,  on  the  12th  day  of 
January,  A.  D.  189J',  in  said  county, 
did  unnecessarily  mutilate  and  tor- 
ture certain  animals,  to  wit,  doves, 
contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the 
People  of  the  State  of  Colorado. 

Francis  B.  Hill. 

Subscribed  and  sworn  to  before  me 
this  /3th  day  oi  January.  A.  D.  iS^J. 
William  Saxton,  (seal) 
Justice  of  the  Peace." 

On  appeal  the  conviction  was  af- 
firmed. The  defendant  below  was  a 
member  of  a  gun  club,  and  the  offense 
charged  consisted  of  shooting  doves 
for  amusement  as  they  were  released 
from  a  trap.  The  case  was  a  test  case 
to  determine  whether  .this  was  within 
the  inhibition  of  the  statute  (Mills' 
Anno.  Stat.  Colo.  (1891).  g  104).  and  the 
court  held  that  it  was.  No  question 
was  raised  as  to  the  sufficiency  of  the 
complaint. 

For  a  similar  decision  in  North  Caro~ 
Una  see  State  v.  Porter,  iia  N.  Car. 
887. 


1007 


Volume  5. 


6760.  CRUELTY  TO  ANIMALS.  6760. 

said  county  of  Cumberland,  on  \ht.  first  day  of  August,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  ninety-eight,  did  then  and 
there  unlawfully  keep  and  use  a  large  number,  to  wit,  twenty  live 
pigeons  {or  fowls  or  other  birds,  as  the  case  may  be^  for  targets  (or  to 
be  shot  at  for  amusement  or  as  a  test  of  skill  in  marksmanship^,  against 
the  peace  of  said  state  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

Richard  Roe,  Foreman. 
Daniel  Webster^  County  Attorney. 

1008  Volume  5. 


CRUELTY  TO  CHILDREN. 

By  Jos.  R.  Long. 

I.  IN  General,  1009. 

II.  EXPOSING  TO  INCLEMENCY  OF  WEATHER,  loio. 

III.  Neglecting  to  provide  Support,  ioio. 

1.   Against  Parent,  loio. 

8.  Against  Any  Person  Having  Control  of  Child,  1012. 

IV.  ILLEGAL  Employment,  1013. 

1.  In  Acrobatic,  Mendicant  or  Obscene  Employment,  1013. 

2.  In  Manufacturing  or  Mercantile  Establishment,  1014. 

3.  In  Mining,  10 15. 

4.  Overworking  in  Factories,  1016. 
6.  Violating  School  Law,  1016. 

CROSS-REFERENCES. 

Por  Forms  in  Prosecutions  for  Abandoning  a  Child,  see  the  title  ABAN- 
DONMENT OF  CHILDREN,  vol.  i,  p.  i. 

For  Forms  in  Prosecutions  for  Assault,  see  the  title  ASSAULT,  vol.  2, 
p.  228. 

Formatters  of  Procedure,  see  the  title  CRUELTY  TO  ANIMALS 
AND  CHILDREN,  5  Encyclopaedia  of  Pleading  and 
Practice,  p.  695. 

I.  IN  General. 

Form  No.  6761.* 

State  of  New  Jersey,  ) 
County  of  Mercer.      \ 

John  Doe  of  the  village  of  Princeton  in  the  county  of  Mercer  and 
state  of  New  Jersey,  upon  his  oath  (or  affirmation)  complains  that  on 
the  third  day  of  January,  a.  d.  \Z98,  at  the  village  of  Princeton  in  the 
county  aforesaid: 

Richard  Roe,  of  Princeton  aforesaid,  being  then  and  there  the  father 

1.  Newfersey.  —  Gen.  Stat.  (1895),  p.  Missouri.  —  Rev.  Stat.  (1889).  S  3499- 

1720,  S  38.  Montana.  —  Pen.  Code  (1895),  §  473. 

See  also  similar  statutes  as  follows:  New  Hampshire.  —  Pub.  Stat.  (1891), 

Colorado.  —  Laws  (1891),  p.  60,  §  3.  c.  265,  §  i. 

C^tJr^za.  —  3  Code  (1895),  §  708.  New  Jersey. —G^n.    Stat.    (1895),    p. 

Illinois.  —  Starr    &   C.    Anno.    Stat.  1717.  §  26. 

(1896),  p.  1262,  par.  125.  Pennsylvania.  —  Bright.     Pur.    Dig. 

Kansas.  —Gen.  Stat.  (1889),  §  2170.  (1894).  p.  1017,  ^  25. 

A',f«/M,ry{'>'.  — Stat.  (1894),  §  327.  Washini^ton.   —    Ballinger's     Anno. 

Minnesota.  —  Stat.    (1894),   §§   6540.  Codes  &  Stat.  (1897),  §  7071. 
8014. 

5  E.  of  F.  P.  —  64.                        1009  Volume  5, 


6762.  CRUELTY  TO  CHILDREN.  6763. 

of  one  Robert  Roe,  a  child  of  tender  years,  to  wit,  of  the  age  of  eight 
years,  and  having  the  care,  custody  and  control  of  said  child,  did 
unlawfully,  wilfully,  maliciously  and  in  a  cruel  and  inhuman  manner 
beat,  whip  and  punish  said  child,  so  as  to  endanger  its  life  and  injure 
its  health,  by  stripping  said  child  of  his  clothing  and  suspending  him 
by  his  thumbs  and  then  striking  Yam  fifty  blows  on  the  bare  back 
with  a  strap  of  leather  and  metal. 

And  therefore,  he  prays  that  the  said  Richard  Roe  may  be  appre- 
hended and  held  to  answer  to  said  complaint,  and  dealt  with  as  law 
and  justice  may  require. 

John  Doe. 

Sworn  (or  affirmed)  and  subscribed  the  fifth  day  of  January,  i898, 
before  me,  Abraham  Kent,  Justice  of  the  Peace. 

II.  EXPOSING  TO  INCLEMENCY  OF  WEATHER. 

Form  No.  6762.' 

State  of  Illinois,    \  Of  the  September  Term  of  the  McLean  Circuit 

McLean  County,  f  '  Court,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  ninety -seven. 

The  grand  jurors,  chosen,  selected  and  sworn  in  and  for  the  county 
of  McLean,  in  the  name  and  by  the  authority  of  the  people  of  the 
state  oi  Illinois,  upon  their  oaths  present  that  John  Doe,  on  XXie.  first 
day  of  August,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  ninety-seven,  at  the  city  oi  Bloomington,  in  the  county  oi  McLean 
aforesaid,  did  then  and  there  unlawfully,  feloniously, ^  wilfully  and 
unnecessarily  expose  to  the  inclemency  of  the  weather  one  David 
Doe,  then  and  there  being  the  child  (or  apprentice)  of  the  said  John 
Doe,  and  under  his  legal  control,  and  then  and  there  did  thereby 
injure  the  said  child  (or  apprentice)  in  health  and  limb,  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  -eace  and  dignity  of  the  same  people  of  the  state  oi  Illinois. 

Alexander  Hamilton,  State's  Attorney. 

III.  Neglecting  to  provide  support. 
1.  Agcainst  Parent. 

Form  No.  6763. 

(Precedent  in  Reg.  v.  Chandler,  Dears.  C.  C.  453.)' 

\Kent,  to  wit.]  The  jurors  for  our  lady  the  Queen,  upon  their 
oath  present  that  during  all  the  time  hereinafter  in  this  indictment 

1.  Illinois. — Starr  &  C.  Anno.  Stat,  intent   to   injure    him    [the    child]   in 

(1896),  p.  1262,  par.  125.  health   or  limb."     Tenn.   Code  (i8g6), 

See  also  similar  statutes  as  follows:  §  6466. 

Colorado.  —  Laws  (1891),  p.  60,  §  3.  2.  Feloniously.  —  Only  under  the  stat- 

Kentucky.  —  Stat.  (1894),  i^  327.  utes  of  Illinois  and  Tennessee  is  the  of- 

Tennessee.  —  Code  (1896),  §  6466.  fense   a     felony.     See    statutes     cited 

Intent.  —  Under  the  7>««^'jj^^  statute  supra.,  note  i. 

the  exposure   must  have  been  "with  3.  The  defendant  having  been  found 

1010  Volume  5. 


6764.  CRUELTY  TO  CHILDREN.  6764. 

mentioned  one  Elizabeth  Chandler  was  a  single  woman  and  was  the 
mother  of  a  certain  male  child  known  by  the  name  of  Albert  of  very 
tender  age  and  wholly  iinable  by  reason  of  his  tender  age  to  provide 
himself  with  food  or  nourishment  or  to  take  care  of  himself,  and  that 
during  all  the  time  aforesaid  it  was  the  duty  of  the  said  Elizabeth 
Chandler  to  protect,  shelter  and  nourish  the  said  child,  and  to  pro- 
vide for  and  give  and  administer  to  the  said  child  suitable  food  in 
proper  and  sufficient  quantities  for  the  nourishment  and  support  of 
his  body  and  the  preservation  of  his  health,  she,  the  said  Elizabeth 
Chandler,  during  all  the  time  aforesaid  being  able  and  having  the 
means  to  perform  and  fulfil  her  said  duty.  And  the  jurors  aforesaid 
upon  their  oath  aforesaid  further  present  that  the  said  Elizabeth 
Chandler,  late  of  the  parish  of  Speldhurst  in  the  county  of  Kent,  well 
knowing  the  premises,  and  not  regarding  her  duty  in  that  behalf,  but 
being  a  person  of  unfeeling  and  inhuman  disposition,  on  \.\\^  first  day 
of  October,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-four,  and  continually  from  thence  until  the  twenty-second  day  of 
January,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-five,  at  the  parish  aforesaid,  in  the  county  aforesaid,  did  unlaw- 
fully, wilfully  and  on  purpose  give  to  the  said  child  food  and  nourish- 
ment in  quantities  wholly  inadequate  and  insufficient  for  the  support 
and  preservation  of  the  body  and  health  of  the  said  child,  and  did 
unlawfully  [and]  wilfully  omit,  neglect  and  refuse  to  provide  for  and 
to  give  to  the  said  child  meat,  drink  or  food  in  any  sufficient  or 
proper  quantity  whatsoever,  whereby,  by  reason  of  the  premises  last 
aforesaid,  the  life  of  the  said  child  was  endangered,  and  the  said 
child  became  and  was  sick,  ill,  weak,  starved  and  greatly  emaciated 
in  his  body,^  to  the  great  damage  of  the  said  child,  and  against  the 
peace  of  our  said  lady  the  Queen,  her  crown  and  dignity. 

Form  No.  6764. 

(Precedent  in  Com.  v.  Burlington,  136  Mass.  435-)* 

[Commonwealth  of  Massachusetts. 
To  the  Justice  of  the  Eirst  District  Court  of  the  Eastern  Middlesex 
District,  holden  in  said    District  in  the  City  of  Maiden,  for  the 
transaction  of  criminal  business,  within  and  for  said  District. 

guiltyon  this  indictment,  the  conviction  must  be  proved.     Reg.  i/.  Phillpott,  6 

was   quashed,   because    there    was    no  Cox.  C.  C.  140,  Dears.  C.  C.  183. 

evidence  to  show  that    the   defendant  2.  This  complaint  was  held  sufficient 

had  the  means  to  maintain  the  child  as  under  Mass.  Stat.  (1882).  c.   270,  §  4, 

alleged  in  the  indictment.  and    is    good    under    this    statute   as 

For   a   similar   indictment   charging  amended    by   Stat.  (1885),  c.  176,  and 

abandonment    see    Reg.    v.    Phillpott,  Stat.  (1893),  c.  262. 

6  Cox  C.  C.  140,  Dears.  C.  C.  179.  Similar  statutes  exist  in  the  follow- 

1.  Neglect  on   the  part  of  a  parent  to  ing  states,  to  wit: 

provide  an  infant  child  with  necessary  Arizona.  —  Pen.  Code  (1887),  §  442. 

food  and  clothing  is  not  a  misdemeanor  California.  —  Pen.  Code  (1897),  §  270. 

at  common  law  unless  some  actual  in-  Idaho.  —  Rev.  Stat.  (1887),  §  6782. 

jury  is  done  to  the  child;  and  in  an  in-  Kentucky.  — S\.&\..  (1894),  §  328. 

dictment  for  that  offense  an  averment  Afittnesota.  —  S\.&\..  (1894).  §6536. 

that  the  child  was  actually  injured  is  a  Afoniana.  —  Pen.  Code  (1895).  ^  470. 

necessary  and  material  allegation  and  Utah.  —  Rev.  Stat.  (1898),  fe  4224. 

1011  Volume  5. 


6766.  CRUELTY  TO  CHILDREN.  6766. 

John  Doe,  of  Wakefield,  in  the  county  of  Middlesex,  on  behalf  of  the 
commonwealth  of  Massachusetts,  on  oath,  complains]  ^  that  Burkner  F. 
Burlington,  late  resident  of  Wakefield,  in  the  county  of  Middlesex,  is 
the  father  of  one  Mary  L.  Burlington,  a  minor  child  under  the  age  of 
twenty-one  years,  and  that  the  said  Burkner  F.  Burlington,  on  the 
first  day  oi  July,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  eighty-two,  at  Wakefield,  in  the  county  of  Middlesex,  did  knowingly 
and  unreasonably  neglect  to  provide  for  the  support  of  the  said 
Mary  L.  Burlington,  the  minor  child  of  him,  the  said  Burkner  F.  Bur- 
lington, and  that  the  said  Burkner  F.  Burlington,  the  father  of  the 
said  Mary  L.  Burlington,  the  minor  child  aforesaid,  from  the  said 
first-mentioned  day  to  the  day  of  making  this  complaint,  at  Wakefiela 
aforesaid,  in  the  county  aforesaid,  knowingly  and  unreasonably  has 
neglected  to  provide  for  the  support  of  the  said  Mary  L.  Burlington, 
the  minor  child  aforesaid,  against  the  peace  of  the  said  Commonwealth 
and  the  form  of  the  statute  in  such  case  made  and  provided. 

yjohn  Doe. 

Middlesex,  ss.  Received  and  sworn  to  the  first  day  of  August,  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  eighty-two, 
before  said  court. 

John  Hancock,  Clerk. J  ^ 

2.  Against  Any  Person  Having*  Control  of  Child.=* 

Form  No.  6765. 

(Precedent  in  Cowley  v.  People,  21  Hun  (N.  Y.)  417.)' 
[Court  of  General  Sessions  of  the  City  and  County  of  New  York. 
The  People  of  the  State  of  New  York 
against 
Edward  Coavley. 

The  grand  jurors  of  the  city  and  county  oiNew  York,  hy  this  indict- 
ment, accuse  Edward  Co7aley  of  the  crime  of  neglecting  to  supply  a 
child  in  his  custody  with  proper  food,  committed  as  follows:]^ 

1.  The  words  enclosed  by  [  ]  will  not  to  be  injured,  shall  be  guilty  of  a  mis- 
be  found  in  the  reported  case,  but  have     demeanor." 

been  added   to  render   the  form   com-  Similar  statutes  are   to  be  found  as 

plete.  follows: 

2.  Precedents. —  See  also  forms  in  Rex  Colorado.  —  Laws  (1891),  p.  60,  §  3. 
V.    Friend,   R.  &   R.   C.  C.   20;  Rex  z/.  Illinois.  —Sxa.rt   &   C.     Anno.    Stat. 
Ridley,  2  Campb.  650.  (1896),  p.  1263,  par.  129. 

3.  This    indictment     contained    five  Minnesota.  —  Stat.  (1894),  §  6537. 
counts,  but  the  first  and  second  counts  Missouri.  —  Rev.  Stat.  (1889),  §  3499. 
alone   were   resorted    to.     The    indict-  New  Jersey  —  Gen.    Stat.    (1895),    p. 
ment  was  drawn  under  the  JVe7v  York  1717,  §  26;  p.  1720,  §  38. 

Act  of  1876,  c.  122,  §  4,  providing  that  New  York. —  Birds.  Rev.  Stat.  (1896) 

"  whoever,  having  the  care  or  custody  p.  420,  §  44;  p.  421,  §  45. 

of   any   child,  shall  wilfully    cause    or  Pennsylvania.  —  Bright.     Pur.     Dig. 

permit  the  life  of  such  child  to  be  en-  (1894),  p.  1017,  §  25. 

dangered,  or  the  health  of  such  child  to  The  statutes  cited  above  have  refer- 

be  injured,  or  who  shall  wilfully  cause  ence  only  to  those  who  have  the  child 

or  permit   such  child  to  be  placed   in  under   their   charge   and    control.     In 

such  a  situation  that  its  life  maybe  en-  Georgia  and  Washington,  however,  it  is 

dangered,  or  its  health  shall  be  likely  provided  that  whoever  shall  deprive  a 

1012  Volume  5. 


6766.  CRUELTY  TO  CHILDREN.  6766. 

First  count.  That  Edward  Cowley,  late  of  the  nineteenth  ward  of 
the  city  of  New  York,  in  the  county  of  New  York  aforesaid,  being  an 
evilly-minded  and  cruelly-disposed  person,  and  well  knowing  and 
intending  the  premises  hereinafter  set  forth,  unlawfully,  wilfully  and 
wickedly,  on  the  ttventy-sixih  day  of  December,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  seventy-nine,  at  the  ward,  city  and 
county  aforesaid,  did  neglect  to  provide  a  certain  child,  then  and 
there  known  by  the  name  oi  Louis  Kulkusky,  otherwise  called  Louis 
Victor,  and  of  which  child  he  then  and  there  had  the  care  and  custody, 
and  which  said  child  was  then  and  there  in  his  custody,  and  was  an 
infant  of  tender  age,  to  wit,  of  the  age  oi  five  years,  with,  and  to  give 
and  administer  unto  the  said  child,  proper,  wholesome  and  sufficient 
food,  meat,  drink,  warmth,  clothing,  bed-covering  and  means  of 
cleanliness,  and  did  therein  and  thereby  wilfully  cause  and  permit  the 
health  of  said  child  to  be  injured,  against  the  form  of  the  statute 
in  such  case  made  and  provided,  and  against  the  peace  of  the  people 
of  the  state  of  New  York  and  their  dignity. 

Second  count.  And  the  jurors  aforesaid  upon  their  oath  aforesaid 
do  further  present:  That  afterwards,  to  wit,  on  the  day  and  in  the 
year  aforesaid,  at  the  ward,  city  and  county  aforesaid,  the  said  Ed- 
ward Cowley,  wilfully  and  wickedly,  a  certain  child  then  and  there 
known  by  the  name  of  I^uis  Kulkuski,  otherwise  called  Louis  Victor, 
and  of  which  child  he  then  and  there  had  the  care  and  custody,  and 
which  said  child  was  then  and  there  in  his  custody,  and  was  an  infant 
of  tender  age,  to  wit,  of  the  age  of  five  years,  and  which  said  child 
theretofore  had  been  and  then  was  diseased,  sick  and  ailing  in  its 
body  and  limbs,  and  then  and  there  required  proper  medicine  and" 
medical  attendance,  did  wilfully  neglect  to  provide  with,  and  to  give 
and  administer  unto  said  child  due,  proper  and  sufficient  medicine  and 
medical  attendance  and  care,  when  so  as  aforesaid  diseased,  sick  and 
ailing,  and  did  therein  and  thereby  wilfully  cause  and  permit  the 
health  of  said  child,  to  wit,  the  infant  aforesaid,  to  be  injured,  against 
the  form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  of  the  people  of  the  state  of  New  York  and  their  dignity. 

IB.  K.  Phelps, 
District- Attorney  of  the  City  and  County  oi  New  YorkS\^ 

IV.  ILLEGAL  EMPLOYMENT. 
1.  In  Acrobatic,  Mendicant  or  Obscene  Employment. 

Form  No.  6766.' 
In  the  Superior  Court  of  the  City  and  County  of  San  Francisco, 
State  of  California. 

child  of  necessary  food  or  clothing  shall  been  added  to  render  the  form  com- 
be punished,  etc.  plete. 

G^f«7r^tVx.  —  3  Code  (1895),  8  708.  2.  This  form    is   drawn    under   Cal. 

Washington.  —  Ballinger'^s       Anno.  Pen.  Code  (1897),  §  272,  which  provides 

Codes  &  Stat.  (1897),  §  7071.  that  "Any  person,  whether  as  parent. 

1.  The  words  enclosed  by  [  ]  will  not  relative,  guardian,  employer  or  other- 
be  found  in  the  reported  case,  but  have  wise,  having  in   his   care,  custody  or 

1013  Volume  5. 


6767.  CRUELTY  TO  CHILDREN.  ^1^1, 

The  People  of  the  State  of  Calif orniay  plaintiff,  '' 
against 
Richard  Roe,  defendant. 
Richard  Roe  is  accused  by  the  district  attorney  of  the  said  city  and 
county  by  this  information  of  the  crime  of  giving  away  and  appren- 
ticing for  the  purpose  of  rope-walking  a  child  under  the  age  of  sixteeti^ 
years,  in  his  care,  custody  and  control,  committed  as  follows:     The 
said  Richard  Roe,  on  the  first  day  oi  January,  a.  d.  i?>98,  at  the  said 
city  and  county  of  San  Francisco,  and  before  the  filing  of  this  informa- 
tion, was  the  father  of  one  Robert  Roe,  a  child  under  the  age  of  six- 
teen years,  to  wit,  of  the  age  of  fourteen  years,  and  on  said  date  did 
unlawfully  give  away  and  apprentice  to  one  Samuel  Short  the  said 
Robert  Roe  for  the  vocation,  use,    occupation,  calling,    service  and 
purpose  of  rope-walking,  contrary  to  the  form^  force  and  effect  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  people  of  the  state  of  California. 
Dated  February  1,  a.  d.  i2>98. 

Daniel  Webster, 
District  Attorney  of  said  City  and  County  of  San  Fnancisco. 

2.  In  Manufacturing  or  Mercantile  Establishment. 

Form  No.  6767.* 

Newport,   Sc.  At  the  court  of  Common  Pleas  of  the  State  of  Rhode 
Island  and  Providence  Plantations,  holden  at  Newport,  within  and  for 

control  any  child  under  the  age  of  six-  New  Hampshire.  —  Pub.  Stat.  (1891), 

teen  years,  who  shall  sell,  apprentice,  c.  265,  §  3. 

give  away,  let  out,  or  otherwise  dispose  New  fersey, —  Gen.    Stat.    (1895),    p. 

of  any  such  child  to  any  person,  under  1717,  §§  27,  28. 

any   name,  title,  or   pretense,  for   the  New  York.  —  Birds.  Rev.  Stat.  (1896), 

vocation,  use,  occupation,  calling,  ser-  p.  423,  §  48. 

vice,  or  purpose  of  singing,  playing  on  Rhode  Island.  —  Gen.    Laws    (1896), 

musical      instrumei^ts,     rope-walking,  c.  115,  §§  4,  5. 

dancing,  begging,  or  peddling,  in  any  '        Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 

public  street  or   highway,   or    in   any  (1889),  >5  4587^. 

mendicant     or     wandering     business  Obscene  or  Indecent  Employment. —  All 

whatsoever,  and  any  person  who  shall  the  statutes  cited  above,  save  those  of 

take,  receive,  hire,  employ,  use,  or  have  Arizona.    California,  Kansas  and  Mon- 

in  custody  any  child  for  such  purpose,  ^rt«<z,make  it  illegal  to  employ  or  exhibit 

or  either   of   them,  is   guilty  of  a  mis-  a   child    in     an    obscene    or    immoral 

demeanor."  exhibition. 

Similar  statutes  exist  as  follows:  1.  Age.  —  In  most  states  the  age  fixed 

Arizona.  —  Pen.  Code  (1887),  §  444.  by  the  statute  is  sixteen.       In  Indiana, 

Colorado.  —  Laws  (1891),  p.  59,  §§  i,  2.  however,  the  age  is  fifteen;  in  Colorado, 

Connecticut. — Gen.  Stat.  (1888),  i^  141 7.  Illinois,  Kansas,    New   Hampshire   and 

Georgia. — 3  Code  (1895),  ^  706.  Wisconsin,  fourteen;  and  in  Connecticut 

Illinois.  —  Starr    &   C.    Anno.    Stat,  and  Georgia,  twelve. 

(1896),  p.  1263,  par.  131.  In  New  Jersey  it  is  made  an  offense 

Indiana.  —  Horner's    Stat.   (1896),    §  so  to  hire,  etc.,  for  the  purpose  of  rope- 

6620.  walking,  etc.,  where  the  child  is  under 

Kansas.  —  Gen.  Stat.  (1889),  §  2170.  fifteen,  but  for  street  singing  or  other 

Kentucky.  —  Stat.  (1894),  §  326.  mendicant  pursuit  it  is  an  offense  if  the 

Michigan.  —  How.  Anno.  Stat.  (1882),  child  is  under  eighteen. 

§  1998.  2.  Rhode  Island. — Gen.  Laws  {1896), 

Minnesota.  —  Stat.  (1894),  §  6539.  c.  68,  §§  i,  2,  12.  Similar  statutes  exist 

Montana.  —  Pen.  Code  (1895),  §  472.  as  follows: 

1014  Volume  5. 


6768.  CRUELTY  TO  CHILDREN.  6768. 

the  county  oi  Newport,  on  the  first  Monday  oi  February,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  ninety- sez>en. 

The  grand  jurors  for  the  state  of  Rhode  Island  and  Providence  Plan- 
tations, in  and  for  the  county  of  Newport,  upon  their  oaths  present, 
ihsit/ohn  Doe,  late  oi  Newport,  in  said  county,  upon  the  first  day  of 
January,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-seven,  with  force  and  arms,  at  Newport,  in  the  county  of 
Newport  aforesaid,  did  then  and  there  unlawfully,  knowingly  and 
wilfully  employ  and  suffer  and  permit  to  be  employed  in  a  certain 
dry  goods  store  there  situate,  known  as  "  The  Yankee  Notion,"  in 
which  were  employed  a  large  number  ^  of  women  and  children,  to 
wit,  twenty  women  and  children,  one  David  Roe,  a  child  then  under 
twelve  2  years  of  age,  to  wit,  ten  years  of  age,  against  the  form  of  the 
statute  in  such  case  made  and  provided,  and  against  the  peace  and 
dignity  of  the  state. 

Alexander  Hamilton,  Attorney-General. 

3.  In  Mining. 

Form  No.  6768. » 

The  State  of  Indiana,  Posey  County,  set: 

Before  me  Abraham  Kent,  a  justice  of  the  peace  for  said  county, 
csime  John  Doe,  who,  being  duly  sworn  according  to  law,  deposeth 
and  saith:  That  on  or  about  the  first  day  oi  June,  in  the  year  iW8,  at 
the  county  of  Posey  and  state  of  Indiana,  one  Samuel  Short,  late  of 
said  county,*  did  then  and  there  unlawfully  take  one  Leonard  A. 
Ford,  a  child  under  the  age  of  twelve^  years,  in  certain  underground 
works,  to  wit,  a  coal  mine  there  being,  and  did  then  and  there  unlaw- 
fully employ  said  Leonard  A.  Ford  in  mining  coal  in  such  mine  con- 
trary to  the  form  of  the  statutes  in  such  case  made  and  provided, 
and  against  the  peace  and  dignity  of  the  state  of  Indiana. 

John  Doe. 

Subscribed  and  sworn  to  before  me  this//M  day  oi  June,  jS98. 

Abraham  Kent,  J.  P.     (seal) 

Connecticut.  —  Gen,    Stat.    (1888),   §§  to  be  within   the  Rhode  Island  statute. 

1753-55-  must  employ  not  less  than  five  persons 

Massachusetts.  — ^\.2lX..    (1894),  c.   508,  who  are  women  or  children.    R.  I.  Gen. 

g  13.  Laws  (1896),  c.  63,  §  2.     In   Michigan 

iWV<:>4i>a«.  —  How.  Anno.  Stat.  (Supp.  not  less  than  ten  must  be  employed. 

1890),  §  1997^3.  How.    Anno.     Stat.     (Supp,    1S90),    g 

iV^a/jya»//j/4iW. —Pub.  Stat.  (1891),  1997^4- 

c.  93,  i^  10.  2.  Age. —  In  New  Hampshire  the  age 

Wisconsin.  —  Sanb.  &   B.  Anno  Sut.  is  ten;  in  Connecticut,  Massachuetts  and 

(1889)   §  1728a.  Wisconsin,  thirteen. 

In  Indiana    it  is    unlawful   for   any  8.  Indiana.  —  Horner's  Stot.  (1896).  § 

person,  firm,  company,  corporation  or  6623. 

association,  engaged  in  manufacturing  Montana.  — V^n.  Code  (1S95),  ^  474- 

iron,  steel,  nails,  metals,  machinery  or  New  Jersey.  — Gen.    Stat.    (1895),  p. 

tobacco,    to   employ  or   keep  at   work  1718.  §  30.                                ^ 

any  child  under  twelve  years  of  age.  Washtnt^ton.  —  Ballinger  s       Anno. 

Horner's  Stat.  Ind.  (1896).  §  2I25«  et  seq.  Codes  &  Stat.  (1897),  §  3172.        . 

1.  Niunber    Employed.  —  The    manu-  4.  Age.  —  In  Montana  the  age  is  four- 

facturing  or  mercantile  establishment,  teen  years. 

1015  Volume  5. 


6769.  CRUELTY  TO  CHILDREN.  ^11^, 

4.  Overworking  in  Factories. 

Form  No.  6769.' 

{Commencing  as  in  Form  No.  6768,  and  continuing  down  to  *)  being 
then  and  there  the  owner  (or  agent  or  overseer  or  foreman)  of  a  cer- 
tain cotton  (or  woolen)  factory  in  said  county,  did  then  and  there 
unlawfully  employ  (or  permit  to  be  employed  or  employ  and  permit  to  be 
employed),  in  the  said  cotton  (or  7voolen)  factory,  of  which  he,  the  said 
John  Doe,  then  was  the  owner  (or  agent  or  overseer  or  foreman)  as 
aforesaid,  one  David  Roe,  he,  the  said  David  Roe,  then  being  under 
the  age  of  eighteen  years, ^  to  wit,  of  the  age  of  fourteen  years,  for  a 
longer  period  than  ten  hours^  in  one  day,  to  wit,  for  a  period  of  twelve 
hours  in  one  day,  contrary  {concluding  as  in  Form  No.  6768). 

5.  Violating  School  Law. 

Form  No.  6770.* 

State  of  Maine. 

Kennebec,  ss.  At  the  Superior  Court  begun  and  held  at  Augusta, 
within  and  for  said  county  of  Kennebec,  on  tho.  first  Tuesday  of  Septem- 
ber in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 
seven. 

The  jurors  for  the  state  upon  their  oath  present  that  John  Doe  of 
Augusta,  in  the  county  of  Kennebec,  manufacturer,  on  the  first  day  of 
September  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-six,  at  Augusta  aforesaid,  being  then  and  there  the  owner  (or 
agent  or  superintendent)  of  a  certain  cotton  (or  woolen)  manufactory  in 
said  Augusta,  did  then  and  there  unlawfully,  wilfully  and  knowingly 

I.Indiana.  —  Horner's   Stat.    (1896),  Vermont,  fifteen;   in  Michigan,   fifteen 

§  2125.     See  also  §  21253.  for  a  female   and   fourteen  for  a  male. 

See  also  similar  statutes  as  follows:  3.  Hours  of  Employment.  —  In   Michi- 

Connecticut.  —  Gen.     Stat.    (1888),     §  gan  nine  hours,  and  in  Wisconsin  eight 

1745.  hours,  is  the  limit  of  a  day's  work. 

Maine.  —  Rev.  Stat.  (1883),  c.  48,  §  15.  4.  This   form    is   drawn    under    Me. 

Michigan. — How.  Anno.  Stat.  (Supp.  Rev.  Stat.  (1883),  c.  48,  §§  13,  14. 

l8go),  §  I9g7<r2.  Similar  statutes  exist  as  follows: 

Minnesota.  —  Stat.  ( 1 894),  §  6541.  Connecticut.  —  Gen.    Stat.    (1888),  §§ 

New  Hampshire.  —  Pub.  Stat.  (1891),  2105,  2106. 

c.  180,  §§  14,  16.  Massachusetts.  —  Stat.   (1894),  c.  508, 

Vermont.  — Stat.  (1894),  §  5146.  §  14. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat.  New  Hampshire.  —  Pub.  Stat.  (1891), 

(1889),  §  1728.  c.  93,  §§  ir,  12. 

Employment  Before  and  After  Certain  Rhode  Island.  —  Gen.  Laws  (1896),  c. 

Hours. —  In    Massachusetts  and  Minne-  64,  §§  5,  10. 

sota  statutes  exist  prohibiting  the  em-  Vermont.  —  Stat.  (1894),  §§  712,  713. 
ployment  of  children  under  a  certain  In  Alaine  an  offender  is  to  be  pro- 
age  before  the  hour  of  seven  in  the  ceeded  against  by  indictment,  and  the 
morning  and  after  the  hour  of  six  at  county  attorney  shall  prosecute  (Rev. 
night.  Stat.  (1883),  c.  48,  §  14),  while   in    the 

Mctssachusetts. — Stat.   (1894),  c.  508,  other  states  the  prosecution  is  usually 

§  14.  ■  by  complaint  before  a  justice  or  mu- 

Minnesota.  — Stat.  (1894),  §  6339.  n'icipal    court,    and    by   truant   officers 

2.  Agfe. —  In   Connecticut,  Maine  and  where  these  officers  exist. 
Minnesota  the  age   is  sixteen  years;  in 

1016  Volume  5. 


6770.  CRUELTY  TO  CHILDREN.  ^11^» 

employ  (or  suffer  to  work  or  employ  and  suffer  to  work)  in  said  manu- 
factory one  David  Lee,-SL  child  then  under  twelve  (or  over  twelve  and 
under  fifteen)  years  of  age,  to  wit,  ten  (jov  fourteen)  years  of  age,  the 
said  David  Lee  not  having  attended  a  public  school  or  a  private  school 
taught  by  a  person  qualified  to  be  a  public  teacher  for  four  (or  three) 
months  of  the  year  preceding  such  employment  as  aforesaid,  against 
the  peace  of  said  state,  and  contrary  to  the  form  of  the  statute  in 
such  case  made  and  provided. 

Wolfe  Londoner,  Foreman. 
Ralph  IronSy  County  Attorney. 

1017  Volume  5. 


DAMAGES,  OFFER  TO   LIQUIDATE. 

By  Thomas  E.  O'  Brien. 

I.  THE  OFFER,  1018. 
11.  THE  ACCEPTANCE,  1019. 

CROSS-REFERENCES. 

For  Forms  relating  to  Offer  to  Allow  Judgment,  see  the  title  COM- 
PROMISE, ante,  p.  12. 

For  Forms  relating  to  Offer  to  Confess  Judgment,  see  the  title  CON- 
FESSION OF  JUDGMENT,  ante,  p.  46. 

I.  THE  Offer. 

Form  No.  6771.' 

Supreme  Court,  Albany  County. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant. 

The  above  named  defendant  Richard  Roe  hereby  offers  that  if  he 
fails  in  his  defense  in  the  above  action  now  pending  in  this  court,  the 

1.  Statutory  Provisions. — \n  New  York,  whom  the  cause  is  tried.     Code   Civ. 

in    an    action   to   recover  damages  for  Proc,  §  737,  as  aw^w^^o' Laws  (1877),  c. 

breach  of  contract,  the  defendant's  at-  416  (Birds.  Rev.  Stat.  (1896),  p.  2198,  §2). 

torney   may,   with    the  answer,    serve  Similar  or   analogous  provisions  ex- 

upon  the  plaintiff's  attorney  a  written  ist  in  the  following  states: 

offer  that  if   the  defendant  fails  in  his  Arkansas. — Sand.  &  H.  Dig.  (1894), 

defense  the  damages  may  be  assessed  ^  5901,  5902. 

at   a   specified   sum.     If    the    plaintiff  Iowa.  —  Code  (1897),  §§  3820,  3821. 

serves  notice  that  he  accepts  the  offer  Kentucky. —  Bullitt's  Civ.  Code  (1895), 

with    or    before    the     notice   of     trial,  §§  635,  636. 

and  damages   are  awarded  to  him  on  Michigan.  —  How.  Anno.  Stat.  (1882), 

the  trial,  they  must  be  assessed  accord-  §§  7373,  7374. 

ingly.     Code  Civ.Proc,   §  736  (Birds.  Missouri.  —  Burns'    Anno.    Pr.  Code 

Rev.  Stat.  (1896),  p.  2198,  §  i).     If  the  (1896),  §  566. 

plaintiff  does  not  accept   the  offer,  he  A^orth    Carolina.  —  Code    (1883),    §§ 

cannot  prove  it  upon  the  trial;  but  if  575,  576. 

the  damages  awarded   to  him  do  not  North  Dakota.  —  Rev.   Codes   (1895), 

exceed  the  sum  offered,  defendant   is  §§  564T,  5642. 

entitled  to  recover  the  expenses,  neces-  South  Carolina.  —  2  Rev.  Stat.   (1893), 

safily    incurred   by    him    in  preparing  ^§  387,  388. 

for  trial,  of  the  question  of   damages.  South  Dakota.  —  Dak.    Comp.    Laws 

The  expenses  must  be  ascertained  and  (1887),  §§  5248,  5249. 

the  amount  thereof  determined  by  the  Wisconsin.  — Sanb.  &  B.  Anno.  Stat. 

judge,    or   the    referee    by    or    before  (i88g),  §§  2790,  2791. 

1018  Volume  5. 


6772.  DAMAGES,  OFFER  TO  LIQUIDATE.  6772. 

plaintiff's   damages   may   be   assessed   at   the   sum   of  five  hundred 
dollars. 

Oliver  Ellsworth,  Defendant's  Attorney, 

No.  106  State  street,  Albany,  New  York.^ 
Dated  Xhxs  fifteenth  day  of  March,  iS98. 
To  Jeremiah  Mason,  Attorney  for  Plaintiff. 
{Affidavit  of  attorneys  authority.)^ 

II.  THE  ACCEPTANCE. 

Form  No.  6772.' 

{Title  of  court  and  cause  as  in  Form  No.  6771.) 
To  Oliver  Ellsworth,  Attorney  for  Richard  Roe: 

You  will  please  take  notice  that  the  plaintiff  above  named  hereby 
accepts  the  offer  of  Richard  Roe,  the  defendant  above  named,  that  if 
he  fails  in  his  defense  in  the  above  action,  plaintiff's  damages  may 
be  assessed  at  _/?z'^////«^//-<f</ dollars. 

Jeremiah  Mason,  Attorney  for  Plaintiff, 

No.  106  State  Street,  Albany,  New  York.^ 

Dated  this  fifteenth  day  of  March,  iS98. 

{Affidavit  of  attorney's  authority.  )* 

1.  Hun's  Court  Rules  (1896),  No.  2.  of  trial.    Code  Civ.  Proc.,  §736  (Birds 

2.  Affidavit  of  Attorney's  Authority.  —  Rev.  Stat.  (1896^  p.  2198,  §  i).  See 
Unless  the  offer  made  as  prescribed  in  also  list  of  statutes  cited  supra,  note 
the  statute   is  subscribed  by  the  party  i,  p.  loiS. 

making  it,  his  attorney  must  subscribe  4.  Affidavit  of  Attorney's  Anthority. — 

it  and  annex  thereto  his  affidavit  to  the  When    the    acceptance    is   subscribed 

effect  that  he  is  duly  authorized  to  make  by   the  attorney    for   the  plaintiff,  he 

it  in  behalf  of  the  party.     N.  Y.  Code  must  annex  thereto  his  affidavit  to  the 

Civ.    Proc,    §    740   (Birds.    Rev.    Stat,  effect  that  he  is  duly  authorized  to  make 

(1896),    p.    2198,    §   5).     The   following  it   in  behalf  of  the   plaintiff.      N.    Y. 

form  of  affidavit  is  sufficient:  Code  Civ.  Proc,  S  74o(Birds.  Rev.  Stat. 

"  Albany   County,    ss.       Oliver   Ells-  (1896),   p.    2198,   §    5).      The    following 

worth  being  duly  sworn,  says  that  he  is  form  of  affidavit  may  be  used   under 

the  attorney  for  the  defendant  Richard  this  section: 

Roe  in   the   above  entitled  action  and  'M/^rtwy  County,  ss.  feremiak  Mason, 

that  he  is  duly  authorized   by  the  said  being  first  duly  sworn,  says  that  he  is 

Richard  Roe  to  make  the  above  offer  to  the  attorney   iorfohn  Doe,  the  plaintiff 

liquidate  damages  in  his  behalf.  above  named,  and  that  he  is   duly  au- 

Oliver  Ellsworth.  thorized  by  the  said  plaintiff  to  accept 

Sworn  to  before  me  \.hi%  fifteenth  day  the  above  offer  to  liquidate  damages. 

oi  March,  jSqS.  feremiah  Mason. 

(seal)  Norton  Porter,  Notary  Public."  Subscribed  and  sworn  to  before  me 

8.  Service  of  Notice  of  Acceptance.  —  In  thH  fifteenth  day  of  March,  i8qS. 

New    York   the     notice   of    acceptance  (seal)  Norton  Porter,  Notary  Public." 
must  be  served  with  or  before  the  notice 

1019  Volume  5. 


DANGEROUS  AND  VICIOUS  ANIMALS. 

By  W.  R.  Buckminster. 

.     I.  CIVIL  ACTIONS  FOR  INJURIES,  1020. 

1.  By  a  Bear,  102 1. 

2.  By  a  Bull,  1023. 

3.  By  a  Dog,  1024. 

4.  By  a  Horse,  1025. 
6.  By  a  Ram,  1026. 

II.  CRIMINAL  PROSECUTIONS,   1027. 

1.  Allowing  Rabid  Dog  to  Run  at  Large,  1027. 

2.  Driving  or  Leading  Uticaged  Bear,  1027. 

3.  Keeping  Unruly  Bull  Near  Public  Highway,  1028. 

CROSS-REFERENCES. 

For  other  Forms  relating  to  Animals,  see  the  title  ANLMALS,  vol,    i, 
p.  789- 

I.  Civil  Actions  for  injuries.^ 


1.  Beqnisites  of  Complaint  or  Declara- 
tion —  Generally. —  For  the  formal  parts 
of  a  complaint,  petition  or  declaration 
in  a  particular  jurisdiction  consult  the 
titles  Complaints,  vol.  4,  p.  1019; 
Declarations. 

For  statutes  relating  to  civil  liability 
of  the  owners  or  keepers  of  a  vicious  or 
dangerous  animal  see  as  follows: 

Alabama.  —  Civ.  Code  (1886),  §  1379. 

Georgia.  —  2  Code  (1895),  ^§  3821, 
3822. 

Tennessee.  — ZodiC  (1896),  §§  2988, 
2989. 

Scienter.  —  The  ground  of  liability  is 
the  keeping  of  the  animal  after  notice, 
actual  or  constructive,  of  its  dangerous 
habits,  and  such  previous  knowledge 
must  in  general  be  alleged  and  proved. 
Mason  v.  Keeling,  12  Mod.  332;  Worm- 
ley  V.  Gregg,  65  111.  251;  Keightlinger  z/. 
Egan,  65  111.  235;  Vroomanz/.  Lawyer,  13 
Johns.  (N.  Y.)  339;  Van  Leuven  v.  Lyke, 
I  N.  Y.  515.  And  see  also  Pickering  v. 
Orange,  2  111.  338;  Partlow  v.  Hag- 
garty,  35  Ind;  178;  Murray  v.  Young, 
12  Bush  (Ky.)  337;  Lyons  v.   Merrick, 

105  Mass.    71;  Hewes   v.    McNamara, 

106  Mass.  281;  Kelly  v.  Tilton,  2  Abb. 


App.  Dec.  (N.  Y.)  495;  Koney  v.  Ward, 
2  Daly  (N.  Y.)  295;  Wheeler  v.  Brant, 
23  Barb.  (N.  Y.)  324;  Rider  v.  White, 
65  N.  Y.  54;  M'Caskill  v.  Elliot,  5 
Strobh.  L.  (S.  Car.)  196;  Oakes  v. 
Spaulding,  40  Vt.  347;  Coggswell 
zi.  Baldwin,  15  Vt.  404;  Kertschacke  v. 
Ludwig,  28  Wis.  430.  But  where  the 
animal  is  of  a  wild  and  ferocious 
nature,  notice  is  presumed  and  need 
not  be  alleged.  Earl  v.  Van  Alstine, 
8  Barb.  (N.  Y.)  630. 

An  averment  that  the  defendant  knew 
the  dog  "  was  of  a  ferocious  and  mis- 
chievous nature"  is  conformable  to 
precedent  and  sufficient  after  verdict. 
M'Caskill  v.  Elliot,  5  Strobh.  L.  (S.  Car.) 
196.  And  an  averment  that  defendants 
kept  a  dog  "  wilfully,  unlawfully,  and 
maliciously,"  with  full  knowledge  of 
his  ferocious  and  vicious  habits,  and 
making  no  effort  to  protect  the  public 
from  his  vicious  attacks,  will  justify  an 
award  of  exemplary  damages.  Cameron 
V.  Bryan,  89  Iowa  214. 

Negligence  of  Defendant.  —  The 
ground  of  liability  being  the  keeping 
of  the  animal  with  or  after  notice  of 
its  dangerous  habits,  no  negligence  in 


1020 


Volume  5. 


6773.      DANG  F.ROUS  AND  VICIOUS  ANIMALS.       6773. 


1.  By  a  Bear. 

Form  No.  6773. 
(Precedent  in  Marquet  v.  La  Duke,  96  Mich.  596.)' 

[The  Circuit  Court  for  the  County  of  Menomitiee, 

Connty  oi  Menominee,  ss.]^  Julian  Narcisse  Marquet,  by  his  next 
friend,  Narcisse  Marquet,  of  the  city  of  Menominee,  in  said  county, 
plaintiff  herein,  by  Sawyer  &*  Waite,  his  attorneys,  complains  of  Anton 
La  Duke,  defendant  herein,  of  a  plea  of  trespass  on  the  case,  filing 
this  declaration,  entering  rule  to  plead,  etc. ,  as  commencement  of  suit. 

For  that  whereas,  the  defendant  above  named,  on  October  2J^  iS91^ 
and  for  a  long  time  previous  thereto,  had  occupied  and  controlled 
the  Eagle  Hotel,  a  public  house,  situated  in  the  city  of  Menominee^ 
Mich.',  that  there  were  public  grounds  surrounding  said  hotel,  to 
which  the  public  was  invited,  and  through  which  it  (the  public)  was 
freely  permitted  to  pass;  that  said  Eagle  Hotel,  on  said  2Jtth  day  of 
October,  was  occupied  as  a  public  house  of  entertainment,  and  the 
grounds  about  the  same  were  open  as  a  place  of  recreation  to  people 
in  a  public  way,  and  were  unenclosed,  free  access  being  given  to  said 
grounds  from  Ogden  avenue,  a  public  street,  on  the  south,  and  from 
Dunlapav &nuQ.,  anotherpublic  street,  upon  the  north ;  that  upon  the  said 
2Jfih  day  of  October,  and  for  a  long  time,  to  wit,  for  one  month  or  more, 
previous  thereto,  the  defendant  kept  two  black  bears  in  the  grounds 

guarding  or  securing  it  need  be  averred,     wife  of  said  Stephen  May,  whereby  the 
Woolf  f.  Chalker,  31  Conn.  121;  Brooks     said    Sophia  became  and    was   greatly 


Taylor,  65  Mich.  208;  May  v.  Bur 
dett,  9  Q.  B.  loi,  58  E.  C.  L.  99. 

Negativing  Plaintijfs  Negligence.  —  It 
is  said  to  be  neither  necessary  nor 
customary  to  insert  an  averment  of  due 
care  on  the  part  of  the  plaintiff.  2  Chit. 
PI.  562,  563;  2  Green  Pr.  1290;  Popple- 
well  V.  Pierce,  10  Cush.  (Mass.)  509; 
Brooks  V.  Taylor,  65  Mich.  20S. 

By  Monkey.  —  In  May  v.  Burdett,  9 
Q.  B.  loi,  58  E.  C.  L.  99.  the  declara- 
tion which  was  held  to  be  sufficient, 
omitting  the  formal  parts,  was  as  fol- 
lows: "Before  and  at  the  time  of  the 
damage  and  injury  hereinafter  men- 
tioned to  the  said  Sophia  the  wife  of 
the  said  Stephen  May,  wrongfully  and 
injuriously  kept  a  certain  monkey,  he 
the  defendant  well  knowing  that  the 
said  monkey  was  of  a  mischievous  and 
ferocious  nature,  and  was  used  and 
accustomed  to  attack  and  bite  mankind, 
and  that  it  was  dangerous  and  im- 
proper to  allow  the  monkey  to  be  at 
large  and  unconfined:  which  said 
monkey,  whilst  the  said  defendant  kept 
the  same  as  aforesaid,  heretofore  and 
before  the  commencement  of  this  suit, 
to  wit,  on  the  2d  of  September,  184^,  did 
attack,  bite,  wound,  lacerate  and  injure 
the  said  Sophia,  then  and  still  being  the 

1021 


terrified  and  alarmed,  and  became  and 
was  sick,  sore,  lame  and  disordered,  and 
so  remained  and  continued  for  a  long 
time,  to  wit,  from  the  day  and  year 
last  aforesaid  to  the  time  of  the  com- 
mencement of  this  suit;  whereby,  and 
in  consequence  of  the  alarm  and  fright 
occasioned  by  the  said  monkey  so  at- 
tacking, biting,  wounding,  lacerating 
and  injuring  her  as  aforesaid,  the  said 
Sophia  has  been  greatly  injured  in  her 
health,"  etc. 

1.  The  defendant  in  this  case  ap- 
pealed from  the  verdict  and  judgment 
rendered  against  him,  but  the  judg- 
ment was  affirmed. 

See  substance  of  petition  in  a  similar 
case  in  Vredenburg  v.  Behan,  33  La. 
Ann.  627,  wherein  it  was  held  that  where 
members  of  an  unincorporated  club 
kept  a  bear  on  their  premises,  and  the 
bear  slipped  his  collar  and  injured  a 
man,  who  died  in  consequence;  the 
members  of  the  club  were  all  lia- 
ble, including  one  who,  being  absent, 
knew  nothing  of  the  bear. 

2.  The  words  enclosed  by  [  ]  will 
not  be  found  in  the  reported  case, 
but  have  been  added  to  render  the  form 
complete. 


Volume  5. 


6773.      DANGEROUS  AND  VICIOUS  ANIMALS.       6773. 

about  said  hotel,  between  it  and  Ogdcn  avenue;  that  said  bears  were 
untamed,  savage,  and  ferocious,  which  was  well  known  to  the  defend- 
ant; that  said  bears  were  not  confined  or  excluded  from  contact  with 
people  who  passed  through  said  grounds,  save  and  except  by  a  chain 
fastened  to  a  collar  about  their  necks,  and  connected  to  a  post  in  the 
ground  at  the  other  end,  said  chain  being  10  or  1'2  feet  long;  that 
there  was  a  way  or  road  leading  from  Ogden  avenue  to  Dunlap  avenue, 
aforesaid,  through  the  grounds  above  mentioned,  and  near  where  the 
bears  aforesaid  were  placed,  along  which  way,  people  —  men,  w^omen 
and  children  —  and  vehicles  were  allowed  and  invited  to  pass  by  said 
defendant,  in  close  proximity  to  said  bears,  so  close  that  said  bears 
could  seize  persons  passing  along  the  same;  that  on  said  2Jf.th 
day  of  October,  aforesaid,  the  plaintiff  herein,  a  boy  between y?zr  and 
six  years  of  age,  in  company  with  other  children,  was  passing  through 
the  grounds  contiguous  to  said  Eagle  Hotel,  near  where  said  bears 
were  chained,  when,  without  any  negligence  on  the  part  of  the  plain- 
tiff, one  of  said  bears  so  kept  and  owned  by  defendant  as  aforesaid 
seized  plaintiff  in  a  ferocious  manner,  with  its  paws  and  teeth,  and 
lacerated,  bit,  bruised  and  scratched  him,  making  large  wounds  in 
his  head  and  body  with  his  claws  and  teeth,  and  otherwise  lacerated 
and  injured  the  plaintiff,  whereby  his  under  jaw  was  broken  in  three 
places,  his  left  arm  broken  in  two  places  and  shoulder  smashed  in  a 
frightful  manner,  and  other  injuries  then  and  there  did  to  the  plain- 
tiff, whereby  he  has  suffered  great  physical  pain  and  anguish,  having 
to  undergo  painful  surgical  operations  by  reason  thereof,  being  con- 
fined to  his  bed  in  a  critical  condition  for  a  long  time;  that  said 
injuries  were  caused  solely  on  account  of  the  negligence,  careless- 
ness, recklessness,  and  heedlessness  of  the  defendant,  who  was  well 
aware  and  had  full  knowledge  and  notice  of  the  ferocious  and  savage 
nature  and  ugly  disposition  of  said  bears;  that  said  defendant  was 
negligent,  heedless,  reckless  and  careless  in  keeping  said  bears  in  a 
place  so  exposed,  without  providing  a  watch  or  guard  over  them,  and 
without  placing  a  fence  or  pen  around  them,  and  defendant  was  guilty 
of  recklessness  and  negligence  in  keeping  said  bears  in  the  open 
grounds,  where  people  could  come  in  contact  with  them;  that  it  was 
heedless  and  reckless  to  keep  said  bears  in  such  an  exposed  place, 
fastened  with  a  chain  as  long  as  the  one  with  which  they  were  fast- 
ened on  said  day;  that  it  was  negligent  in  said  defendant  to  keep 
said  bears  anywhere  without  having  them  securely  guarded  and  pro- 
tected, that  children  of  tender  years  could  not  come  in  contact  with 
them;  that  plaintiff  suffered  great  damage  by  reason  of  the  biting, 
scratching,  wounding,  bruising,  breaking  and  lacerating,  as  aforesaid, 
whereby  he  was  caused  great  pain  and  suffering,  and  permanently 
disabled  and  crippled,  to  wit,  to  the  amount  of  $10,000.  Therefore 
the  plaintiff  demands  judgment  against  the  defendant  for  the  sum  of 
$10,000,  together  with  the  costs  in  and  about  this  action  incurred 
and  expended. 

[Sawyer  &=  White, 

Attorneys  for  Plaintiff.]^ 

1.  The  words  enclosed  by  [  ]  will  not  be  found  in  the  reported  case,  but  have 
been  added  to  render  the  form  complete. 

1032  Volume  5. 


6774.      DANGEROUS  AND  VICIOUS  ANIMALS.       6774. 

2.  By  a  Bull. 

Form  No.  6774. 

(Precedent  in  Brooks  v.  Taylor,  65  Mich.  209.)' 

State  of  Michigan^  \ 
County  of  Oceana.  \  ^^* 

The  circuit  court  for  the  county  of  Oceana. 

Solomon  Brooks.,  plaintiff  herein,  by  Z.  G.  Rutherford,  his  attorney, 
complains  of  Lewis  L.  Taylor,  defendant  herein,  in  a  plea  of  trespass 
on  the  case,  filing  this  declaration  as  commencement  of  suit: 

For  that,  whereas,  the  said  defendant  heretofore,  to  wit,  on  the 
first  day  oi  July,  j885,  at  the  township  of  Leavitt,  in  the  county  of 
Oceana,  and  from  thence  for  a  long  space  of  time,  to  wit,  until  and 
at  the  time  of  the  damage  and  injury  of  the  said  plaintiff  as  here- 
after mentioned,  to  wit,  at  the  township  and  county  aforesaid,  wrong- 
fully and  injuriously  did  keep  a  certain  bull,  the  said  defendant  well 
knowing  that  the  said  bull  there  was  used  and  accustomed  to  attack 
and  gore,  wound,  and  injure  mankind,  to  wit,  at  the  township  and 
county  aforesaid,  and  which  said  bull  afterwards,  and  while  said 
defendant  kept  the  same  as  aforesaid,  to  wit,  on  the  tenth  day  of 
July,  iS85,  at  the  township  of  Leavitt,  in  the  county  of  Oceana  afore- 
said, did  attack,  and  with  its  horns  gore  and  bruise,  said  plaintiff, 
and  did  then  and  there  greatly  lacerate,  hurt,  bruise  and  wound  the 
back,  shoulder,  and  side  of,  and  cause  great  internal  injury  to,  the 
said  plaintiff;  and  thereby  he,  the  said  plaintiff,  then  and  there 
became  and  was  sick,  sore,  lame,  and  disordered,  and  so  remained 
and  continued  for  a  long  space  of  time,  to  wit,  for  a  space  of  eight 
months,  thence  next  following,  during  which  time  the  said  plaintiff 
thereby  suffered  and  underwent  great  pain,  and  was  thereby  then 
and  there  hindered  and  prevented  from  performing  and  transacting 
his  lawful  affairs  and  business  by  him  during  that  time  to  be  per- 
formed and  transacted;  and  also,  by  means  of  the  premises,  he,  the 
said  plaintiff,  was  thereby  then  and  there  put  to  great  expense,  costs, 
and  charges,  in  the  whole  amounting  to  a  large  sum  of  money,  to 
wit,  the  sum  of  one  thousand  dollars,  in  and  about  endeavoring  to  be 
cured  of  the  said  wounds,  sickness,  lameness  and  disorder  so  occa- 
sioned as  aforesaid,  and  has  been,  and  is,  by  means  of  the  premises, 
otherwise  greatly  injured  and  damnified,  to  wit,  at  the  township  and 
county  aforesaid,  [and  therefore  he  brings  his  suit,  etc. 

L.  G.  Rutherford,  Attorney  for  Plaintiff.]* 


1.  Judgment  in  this  case  having  re-  injure    mankind,   and    that   the  place 

suited  in  favor  of  the  plaintiff,  defend-  of  keeping  need  not  be  stated.     It  is 

ant  brought  error,  but  the  judgment  further  held  that  it  is  not  usual  or  cus- 

was   affirmed,   it  being   held   that  the  tomary  to  negative  negligence  on  the 

owner's  negligence  was  sufficiently  set  part  of  the  plaintiff, 
forth  by  alleging  that  he   wrongfully        2.  The  words  enclosed  by  [  J  will  not 

and  iniuriously  kept  the  animal,  well  be  found  in  the  reported  case,  but  have 

knowing  that  it  was  used  and  accus-  been  added  to  render  the   form    com- 

tomed  to  attack  and  scare,  wound  and  plete. 

1023  Volume  5. 


6776.      DANGEROUS  AND  VICIOUS  ANIMALS.       ^11^, 

3.  By  a  Dog-.i 


Form  No.  6775. 

(8  Wentw.  PI.  437.) 
Markham  and  Le  Blanc. 

Trin.  Term,  59  Geo.  III. 
London,  to  wit.  John  Doe  complains  of  Richard  Roe  being  in  the 
custody  of  the  marshal  of  the  marshalsea  of  our  lord  the  now  king,  be- 
fore the  king  himself,  of  a  plea  of  trespass  on  the  case;*  for  that 
whereas  the  said  Richard  Roe  on  the  tenth  day  of  May,  a.  d.  18OP,  at  Lon- 
don aforesaid,  knowingly  and  wilfully  kept  a  certain  dog  called  a  bull- 
dog, which  said  dog  was  used  and  accustomed  to  bite  mankind,  he  the 
said  Richard  Roe  then  and  there  well  knowing  that  the  said  dog  was 
so  used  and  accustomed  to  bite  mankind  as  aforesaid,  which  said  dog 
being  then  the  dog  of  the  said  Richard  Roe  on  the  tenth  day  of  May, 
A.  D.  \W9,  at  London  aforesaid,  did  furiously  seize  upon  and  vehe- 
mently bite  the  said  JohtiDoe,  and  by  so  seizing  upon  and  biting  him 
the  said  John  Doe,  did  so  greatly  tear,  lacerate,  mangle,  and  mar  the 
face  of  him  the  said  John  Doe  and  other  parts  of  the  body  of  the 
^zxdt.  John  Doe  and  otherwise  so  greatly  hurt,  injure,  and  wound  him, 
that  the  %z\^  John  Doe  was  not  only  thereby  rendered  in  great  ter- 
ror and  danger  of  his  life,  and  lost  large  quantities  of  his  blood,  but 
the  said  John  Doe  was  and  is  very  much  bruised,  wounded,  maimed, 
and  disfigured  in  his  face,  and  by  reason  of  the  said  bites,  and  of  the 
hurts,  injuries,  wounds,  mars,  and  lacerations  thereby  occasioned, 
the  saidy^/^«  Doe  was  and  became  sick  and  disordered,  and  so  re- 
mained sick  and  disordered  continually  from  that  time  until  the 
exhibiting  the  bill  of  the  said  John  Doe,  and  during  all  that  time 
suffered  and  underwent  great  and  excruciating  pains  and  tortures 
both  of  body  and  mind,  and  was  forced  to  lay  out  and  expend, 
and  hath  actually  laid  out  and  expended  a  large  sum  of  money,  to 
wit,  the  sum  oi  fifty  pounds  of  lawful  money  of  Great  Britain,  in  and 
about  his  endeavors  to  effect  a  cure  in  this  behalf,  and  to  heal  the 
said  hurts,  injuries,  mars,  and  lacerations,  and  hath  also  during  the 
said  time,  been  wholly  prevented  and  hindered  from  following  and 
transacting  his  lawful  affairs  and  business,  and  been  otherwise  put 
to  great  inconvenience,  to  wit,  at  London  aforesaid.  To  the  damage  of 
the  said  John  Doe  of  J^50,  and  therefore  he  brings  his  suit,  etc. 

i      John  Den 
Pledges  to  prosecute  •<  and 

(  Richard  Fenn. 


Form  No.  6776.* 

State  of  Indiana,  )  Posey  Circuit  Court. 

Fosey  County.        j  ^^*       October  Term,  i8S7. 


1.  For   other   forms   of    declarations        2.  This  complaint  contains  the  facts 
in  actions  to  recover  damages  for  in-     which  were  held   on    demurrer   to   be 
juries  caused   by  a  dog  see  Hussey  v.     sufficient  in  Partlow  v.   Haggarty,  35 
King,  83  Me.  569;  Searles  v.  Ladd,  123     Ind.  178. 
Mass.    580;    French    v.    Wilkinson,    93 
Mich.  323;  2  Chit.  PI.  287. 

1024  Volume  5. 


6777.      DANGEROUS  AND  VICIOUS  ANIMALS.      ^111. 

John  Doe,  plaintiff, 

against 

Richard  Roe,  defendant' 

John  Doe,  plaintiff,  complains  of  Richard  Roe,  defendant,  and  says 
that  heretofore,  to  wit,  on  the  first  day  of  February,  iS97,  and  for  a 
long  time  prior  to  said  date,  the  defendant  kept  a  dbg  which,  as  he 
well  knew,  was  accustomed  to  attack  and  bite  all  mankind,  yet 
defendant  wrongfully  and  negligently  allowed  said  dog  to  go  at  large 
without  being  properly  secured.  That  on  said  first  day  of  February, 
1 897,  the  said  dog,  without  any  fault  on  the  part  of  said  plaintiff^ 
attacked,  bit  and  wounded  plaintiff  by  {Here  state  the  nature  of  the 
injuries  received^  by  reason  whereof  the  plaintiff  became  and  was 
sick  and  disordered  for  ten  weeks,  during  which  time  he  was  unable 
to  attend  to  his  business,  and  incurred  in  and  about  his  endeavors  to 
effect  a  cure  expenses  to  the  amount  of  one  hundred  and  fifty  dollars. 

Wherefore  plaintiff  demands  damages  for  five  hundred  dollars,  and 
for  other  relief. 

Jeremiah  Mason,  Plaintiff's  Attorney. 

4.  By  a  Horse. 

Form  No.  6777. 

(Precedent  in  Popplewell  v.  Pierce,  10  Cush.  (Mass.)  509.)* 

^"''"''tJ:ii'""'"\Middlesex,  Sup.  Ct. 

E-v  y    D  •  C  Plaintiff's  Declaration. 

Ed7vtn  Fierce.        ) 

And  the  plaintiff  says]^  that  the  defendant,  heretofore,  to  wit,  on 
the  twenty-sixth  day  of  January  last  past,  and  from  thence,  for  a  long 
space  of  time,  to  wit,  until  and  at  the  time  of  the  damage  and  injury 
to  the  said  plaintiff,  as  hereinafter  mentioned,  to  wit,  at  Lawrence 
aforesaid,  wrongfully  and  injuriously  did  keep  a  certain  horse  which 
was,  during  all  that  time,  used  and  accustomed  to  attack  and  bite 
mankind;  he,  the  said  defendant,  during  all  that  time,  well  knowing 
that  the  said  horse  was  used  and  accustomed  to  attack  and  bite  man- 
kind, to  wit,  at  Lawrefice  aforesaid;  and  which  said  horse,  afterwards 
and  whilst  the  said  defendant  so  kept  the  same  as  aforesaid,  to  wit, 
on  the  twenty-eighth  day  of  January  last  past,  at  Lawrence  aforesaid, 
did  attack  and  bite  the  said  plaintiff,  and  did  then  and  there  greatly 
lacerate,  hurt,  wound,  and  bruise  the  back  of  the  said  plaintiff,  and 
thereby  she  the  said  plaintiff  then  and  there  became  sick,  sore,  lame, 
and  disordered,  and  so  remained  and  continued  for  a  long  space  of 
time,  to  wit,  the  space  of  seven  weeks  then  next  following,  and  still 
continues  sick,  sore,  lame,  and  disordered  thereby;  during  all 
which    time    the    said    plaintiff    thereby   suffered   and    underwent, 

1.  On  motion  in  arrest  of  judgment,  defendant's  negligence  in  keeping  the 

it  was  held  in  this  case  that  a  declara-  horse. 

tion  charging  that  the  defendant  wrong-        2.  The  words  enclosed  by  [  ]  will  not 

fully  kept  a  horse  accustomed  to  bite  be   found   in    the     reported   case,    but 

mankind,  and  that  the  defendant  knew  have  been  added  to  render  the    form 

it,  need  not  aver  that  the  injury  com-  complete, 
plained   of   was   received  through  the 

5  E.  of  F.  P.  — 65.  1025  Volumes. 


6778.      DANGEROUS  AND  VICIOUS  ANIMALS.       6778» 

and  still  suffers  and  undergoes,  great  pain,  and  was  thereby 
then  and  there,  and  still  is,  hindered  and  prevented  from  performing 
and  transacting  her  lawful  affairs  and  business  by  her  to  be  per- 
formed and  transacted;  and  also,  by  means  of  the  premises,  she,  the 
said  plaintiff,  was  thereby  and  still  is,  put  to  great  expense,  cost,  and 
charges,  in  the  whole  amounting  to  a  large  sum  of  money,  to  wit, 
seventy  dollars,  in  and  about  endeavoring  to  be  cured  of  the  said 
wounds,  sickness,  lameness,  and  disorder,  so  occasioned  as  aforesaid, 
and  hath  been  and  is,  by  pieans  of  the  premises,  otherwise  greatly 
injured  and  damnified,  to  wit,  at  Lawrence  aforesaid,  to  the  damage 
[of  the  plaintiff  as  she  says  of  three  hundred  dollars. 

G.  P.  Briggs,  Plaintiff's  Attorney.]^ 

5.  By  a  Ram.2 

Form  No.  6778. 

(8  Wentw.  PI.  581.) 

(Commencing  as  in  Form  No.  6775,  and  continuing  down  to  *)  for  that 
whereas  the  said  Richard  Roe,  on  the  first  day  of  May,  1788,  at  Rippon, 
in  the  said  county,  was  possessed  of  and  kept  divers,  to  wit,  twa 
tups  or  rams,  the  same  being  then  and  there  very  vicious,  fierce,  unruly, 
and  very  improper  to  go  at  large  and  to  wander  about;  yet  the  said 
Richard  Roe  well  knowing  the  said  tups  and  rams  to  be  so  vicious, 
fierce,  unruly,  and  improper  to  go  at  large  and  wander  about,  after- 
wards, to  wit,  on  the  same  day  and  year  aforesaid,  at  Rippon  afore- 
said, negligently,  remissly,  and  carelessly  permitted  and  suffered  the 
said  tups  or  rams  to  go  at  large  and  wander  about  from  place  to 
place,  which  said  tups  or  rams  of  the  said  Richard  Roe  afterwards, 
to  wit,  on  the  same  day  and  year  aforesaid,  at  Rippon  aforesaid,  so 

1.  The  words  enclosed  by  [  ]  will  not  the  State;  and  being  so  wrongfully  and 
be  found  in  the  reported  case,  but  negligently  at  large  and  without  any 
have  been  added  to  render  the  form  keeper,  or  other  restraint,  said  ram  on 
complete.  said   day  came   upon  the  premises  of 

2.  Precedent.  —  In  Moulton  v.  Scar-  on&  Henry  Moultonxn  s^ixA  Scarborough, 
borough,  71  Me.  267,  the  declaration  where  the  plaintiff  then  lawfully  was, 
was  held  to  state  a  cause  of  action  and  while  she  was  in  the  front  yard  of 
against  a  town  for  injuries  caused  by  said  Henry  s  premises  and  near  the 
a  vicious  ram.  Omitting  the  formal  house,  and  in  the  exercise  of  due  and 
parts,  the  declaration  was  as  follows:  proper    care,    said    ram   suddenly    at- 

"  For  that  the  said  defendants  at  said  tacked  and  struck  the  plaintiff  with 
Scarborough,  on  the  twenty-ninth  day  of  great  force  and  threw  her  violently 
December,  A.  D.  eighteen  hundred  and  upon  the  ground,  breaking  her  left  hip, 
seventy-seven,  and  for  a  long  time  prior  and  greatly  jarring  and  bruising  her 
thereto,  were  the  owners  and  possessed  whole  person,  by  reason  of  which  the 
of  a  certain  ram,  of  vicious  disposition  plaintiff  has  ever  since  been  confined  to 
and  accustomed  to  attack  and  butt  per-  her  bed,  and  has  constantly  suffered 
sons,  all  of  which  was  then  and  there  great  pain,  and  been  put  to  great  ex- 
well  known  to  the  defendants;  yet  the  pense  for  doctoring  and  nursing,  and 
defendants  neglecting  their  duty  in  the  been  unable  to  do  work  as  she  formerly 
premises,  and  not  exercising  proper  had  done;  and  is  not  likely  ever  to  re- 
and  suitable  care  and  restraint  over  cover  from  said  injury.  Whereby  an 
said  ram,  carelessly  and  negligently,  action  hath  accrued  to  said  plaintiff  to 
on  said  twenty-ninth  day  of  December,  have  and  recover  of  said  defendants, 
allowed  him  to  be  at  loose  and  run  at  compensation  for  her  said  injuries, 
large,  to  the  danger  of  the  citizens  of  which  she  alleges  is,"  etc. 

1086  Volume  5. 


8779.       DANGEROUS  AND  VICIOUS  ANIMALS.      6780. 

being  at  large  and  suffered  to  wander  about  by  the  neglect  and 
default  of  the  said  Richard  Roe,  broke  and  entered  a  certain  close  of 
the  %di\^  John  Doe,  lying  and  being  in  the  said  parish  of  Rippon,  in  the 
said  county,  the  said  close  being  then  and  there  sufficiently  fenced 
and  inclosed,  and  then  and  there  attacked,  fought  with,  bruised,  and 
wounded  a  certain  tup  or  ram  of  the  said  John  Do}  of  great  value, 
to  wit,  of  the  value  of  twenty  pounds,  then  being  in  the  said  close  of 
the  said  John  Doe,  in  a  very  grievous  manner,  insomuch  that  the  said 
tup  or  ram  of  the  said  John  Doe  afterwards,  to  wit,  on  the  same  day 
and  year  aforesaid,  at  Rippon  aforesaid,  died,  to  the  damage  (conclud- 
ing as  in  Form  No.  6775'). 

II.  CRIMINAL  PROSECUTIONS.! 
1.  Allowing*  Rabid  Dog  to  Run  at  Large. 

Form  No.  6779.* 
The  State  of  Alabama,  )  ^.      . ,  ^     \   /^  j  l     n-  on/v 

Dale  County.  f  ^'''^"'^  ^«"^^'  ^^^^^^'^  ^^'■"^'  ^^^• 

The  grand  jury  of  said  county  charge  that  before  the  finding  of 
this  indictment,  Richard  Roe  knowingly,  wilfully  and  unlawfully  did 
allow  a  certain  dog  belonging  to  him  the  said  Richard  Roe  (or  under 
the  charge  and  control  of  him  the  said  Richard  Roe),  which  had  become 
rabid  (or  which  he  had  information  or  good  reason  to  believe  had  been 
bitten  by  a  rabid  dog),  to  run  at  large  within  six  months  after  becom- 
ing rabid  (or  having  been  bitten),  as  aforesaid,  against  the  peace  and 
dignity  of  the  state  of  Alabama. 

Daniel  Webster,  Solicitor  of  the  third  circuit. 

2.  Driving"  or  Leading  Uncaged  Bear. 

Form  No.  6780.' 

State  of  Missouri,  )  In  the  Barton  Circuit  Court, 

County  of  Barton.  )  ^^'    February  Term,  a.  d.  \W8. 

1.  Beqtiisites  of  Indictment,  etc.  —  Gen-  Washington.  —  Ballinger's       Anno. 

erally.  —  For   the   formal    parts  of    an  Codes  &  Stat.  (1897),  §  3485. 

indictment,    information    or    criminal  Manalaoghter.  —  For  statutes  making 

complaint  in  a  particular  jurisdiction  it  manslaughter  where  death  of  human 

consult    the    titles    Indictments;    In-  being  ensues  from   keeping  a  vicious 

formations;     Criminal    Complaints,  animal  see  as  follows: 

ante,  p.   930.  California.  —  Pen.  Code  (1897).  ^  399. 

For  statutes  relating  to  criminal  prose-  Florida.  —  Rev.  Stat.  (1892),  S  2389. 

cations    for  various  offenses  connected  Idaho.  — Rev.  Stat.  (1887).  ^  6931. 

with    dangerous   and    vicious   animals  Minnesota.  —  Stat.  (1894),  §  6452. 

see  as  follows:  Mississippi.  — Anno.    Code  (1892),  § 

Alabama.— Cum.     Code     (1886),     §  1162. 

4171;  Acts  (1894-5),  p.  696,  No.  373.  New  York.  —  Pen.  Code,  g  196  (Birds. 

District  of  Columbia.  — Comp.    Stat.  Rev.  Stat.  (1896),  p.  1466,  §  18). 

(1894),  p.  48,  g  9.  2.  Alaiama.—Acls(i8g.\-lS9S).  P-  696, 

il/wj<>«r/.— Rev.  Stat.  (1889),  §3923.  No.    373-      See  also   supra,  note   i,   p. 

Neiv  Yori.  — Birds.  Rev.  Stat.  (1896),  1027,  for  other  statutes  against  allow- 

p    iq38,  cl.  II.  ing  dangerous  or  vicious  animals  to  run 

Oregon.  —  Hill's  Anno.  Laws  (1892),  at  large.                               ,  „„  .  o 

g  189I.  8.  Missouri.— Rev.  Stat  (1889),  §  3923. 

1027  Volume  5. 


6781.      DANGEROUS  AND  VICIOUS  ANIMALS.       6781. 

The  grand  jurors  for  the  state  of  Missouri,  impaneled,  sworn  ana 
charged  to  inquire  within  and  for  the  county  of  Bartofi  and  state 
aforesaid,  do  present  that  Richard  Roe,  on  the  first  daj'  of  January, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight, 
in  the  county  aforesaid,  did  unlawfully  lead  and  drive  through  and  in 
said  Barton  county,  in  the  state  of  Missouri,  a  certain  bear  {or 
other  savage  animal,  naming  /*/),  a  savage  animal,  wild  by  nature,  the 
said  bear  being  then  and  there  uncaged,  against  the  peace  and  dig- 
nity of  the  state. 

Daniel  Webster, 
Prosecuting  Attorney  for  the  County  of  Barton. 

3.  Keeping  Unruly  Bull  Near  Public  Highway.^ 

Form  No.  6781. 

(3  Chit.  Cr.  L.  642.) 

Essex.  The  jurors  for  our  lord  the  king,  upon  their  oath  present 
thdit  Richard  Roe,  late  of  the  parish  of  Danbury  in  said  coMXity ,  yeoman, 
on  the  first  day  of  May  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  one,  and  on  divers  other  days  and  times  between  that 
day  and  the  day  of  the  taking  of  this  inquisition,  unlawfully  did  keep 
at  large,  and  still  doth  keep  at  large,  a  certain  bull,  of  a  very  fierce, 
furious,  and  unruly  nature,  in  a  certain  open  field  called  Black  acre, 
situate,  lying,  and  being  in  the  parish  of  Danbury,  in  the  said  county 
of  Essex,  (the  same  field,  on  the  days  and  times  aforesaid,  and  still 
being,  in  the  possession  and  occupation  of  him  the  said  Richard 
Roe)  and,  that  from  time  whereof  the  memory  of  man  is  not  to 
the  contrary,  there  was  and  still  is^  a  certain  ancient  and  common 
public  footway,  leading  from  the  town  of  Shrewsbury,  in  the  parish 
aforesaid,  through  and  along  the  said  field,  towards  and  unto  the 
town  of  Hampden  in  the  same  county,  used  for  all  the  liege  subjects 
of  our  said  lord  the  king,  to  pass  and  repass,  in,  through,  over,  and 
along  the  same,  at  their  free  will  and  pleasure,  about  their  lawful 
affairs  and  business.  And  that  the  said  bull,  on,  the  said^rx/  day  of 
May,  at  the  parish  oi  Danbury  aforesaid,  furiously  ran  at,  to,  and 
against  one  Sarah  Short,  a  liege  subject  of  our  said  lord  the  king, 
then  passing  in  and  along  the  said  footway,  in  the  said  field,  about 
her  lawful  affairs  and  business;  and  then  and  there,  with  his  head 
and  horns,  furiously  pushed  at,  cast  down,  and  prostrated  the  said 
Sarah  Short  there,  and  greatly  hurt,  bruised,  gored  and  wounded  the 
said  Sarah  Short  in  and  upon  the  left  shoulder  of  her  the  said  Sarah 
Short,  insomuch  that  her  life  was  greatly  despaired  of.  And  the 
jurors  aforesaid  upon  their  oath  aforesaid,  do  further  present,  that 
the  said  bull  afterwards,  to  wit,  on  the  said  first  day  oiMay,  and  on 

N'ew  York.  —  Birds.  Rev.  Stat.  (1896),         2.  The  preferable  allegation  is,  "that 

p.  1938,  cl.  II.  before,  and  at  the  time  of  the  continu- 

1.  Baiting  Bull  in  Public  Place.  —  For  ing  of  the    offense    hereinafter    men- 

an  indictment  for  baiting  a  bull  in  a  tioned,  there  was  and  still  is  a  certain 

market  place   being   the   king's   high-  common  and  public  footway,"  etc.     3 

way  see  4  Wentw.  PI.  213.  Chit.  Cr.  L.  642. 

1028  Volume  5. 


6781.       DANGEROUS  AND  VICIOUS  ANIMALS.       6781. 

the  said  other  days  and  times  above  mentioned,  at  the  parish  of 
Danbury\  aforesaid,  so  being  in  the  said  field,  and  of  such  nature  as 
aforesaid,  furiously  ran  at  and  after  divers  other  liege  subjects  of  our 
said  lord  the  king,  then  passing  and  repassing,  in  and  along  the  said 
footway,  in  the  said  field  there,  about  their  lawful  affairs  and  busi- 
ness and  thereby  greatly  affrighted,  terrified,  and  alarmed,  the  said 
last  mentioned  subjects,  and  divers  other  liege  subjects  of  our  said 
lord  the  king,  insomuch  that  the  same  subjects  on  the  days  and  times 
aforesaid,  having  occasion  to  pass  and  repass,  in  and  along  the  said 
footway,  in  the  said  field,  could  not,  nor  can  they  now  pass  or  repass 
in  and  along  the  same,  without  great  hazard  and  danger  of  being 
torn,  gored,  and  wounded  by  the  said  bull,  (he  the  said  Richard  Roe 
on  the  said  days  and  times  respectively  above  mentioned,  and  long 
before,  and  still  well  knowing  the  said  bull  to  be  of  such  fierce, 
furious,  and  unruly  nature,  and  accustomed  to  run  at  and  after, 
and  injure  persons  passing  and  repassing,  over,  through,  and 
along  the  said  field  there,)  to  the  great  damage  of  the  said  Sarah 
Short,  to  the  great  terror  and  common  nuisance  of  all  the  liege  sub- 
jects of  our  said  lord  the  king,  passing  and  repassing,  in  and  along 
the  said  footway,  in  the  said  field  there,  to  the  evil  and  pernicious 
example  of  all  others,  and  against  the  peace  of  our  said  lord  the  king, 
his  crown  and  dignity. 

1029  olume  5. 


DEAD  BODIES  AND   CEMETERIES. 

By  Michael  F.  Hennessy. 

I.  ACTIONS  RELATING  TO  CEMETERIES,  1031. 

1.  By  Cemetery^  1031. 

a.  Assessment  Proceedings^  1031. 

(i)  Petition  for  Certiorari  to  Review  Assessment  on 

Cemetery  Property,  1031, 
(2)  Answer  in  Action  to  Vacate  Assessment,  1032. 

b.  To  Restrain  Burial  of  Noncommunicant,  1034. 

c.  To  Recover  Plot — Answer   Setting  Up  Dedication  and 

Occupancy,  1036. 

2.  Against  Cemeteries,  1037. 

a.  Petition  for  Mandamus  to   Compel  Issuance  of  Burial 

Permit,  1037. 

b.  Bill  for  Permission  to  Remove  Body,  1041. 

c.  Bill  for  Injunction  to  Prevent  Retnoval  of  Body,  1044. 

d.  Bill  to  Compel  Restoration  of  Body  to  Lot,  1045. 

e.  Actions  for  Damages,  1048. 

(i)  For  Burying  Stranger  in  Plaintiff's  Plot,  1048. 

(2)  For  Injuries  Caused  by  Poison  Ivy,  1049. 

(3)  For  Removal  of  Body  from  Plot,  1050. 

/.   By  Holders  of  Cemetery  Bonds  to  Compel  Accounting,  1052. 

II.  ACTION  FOR  PERFORMING  AUTOPSY  WITHOUT  PERMISSION,  1053. 
III.  CRIMINAL  PROSECUTIONS,  1056. 

1.  For  Failure  to  Bury  Dead  Body,  1056, 

2.  For  Removing  Body,  1057. 

3.  For  Stealitig  Body,  1058. 

a.  For  Purpose  of  Dissection,  1058, 

b.  For  Purpose  of  Selling,  1059. 

4.  For  Receiving  Stolen  Body,  1060. 

6.  For  Destroying  Cemetery  Property,  1061, 

CROSS-REFERENCES. 

For  Forms  in  Prosecutions  for  Concealment  of  Death,  see  the  title  CON- 
CEALMENT OF  BIRTH  OR  DEATH,  ante,  p.  30. 

For  Forms  for  Incorporation,  where  Incorporation  Proceedings  are  had 
in  Court,  see  the  title  CORPORATIONS,  ante,  p.  523. 

For  Forms  in  Proceedings  to  Condemn  Private  Property  for  Cemetery 
Purposes,  see  the  title  EMINENT  DOMAIN. 

For  matters  of  Procedure,  generally,  see  the  title  CEMETERIES  AND 
BURIALS,  3  Encyclopaedia  of  Pleading  and  Practice, 
p.  910. 

1030  Volume  5. 


6782.  DEAD  BODIES  AND  CEMETERIES.  6782. 

I.  ACTIONS  Relating  to  Cemeteries. 

1.  By  Cemetery. 

a.  Assessment  Proceedings. 

(1)  Petition  for  Certiorari  to  Review  Assessment  on  Cemetery 

Property. 1 

Form  No.  6782.* 

To  Hon.  Willard  Bartlett,  a  Justice  of  the  Supreme  Court  of  the 
Second  Judicial  District. 

The  petition  of  the  Trustees  of  St.  Patrick's  Cathedral,  in  the  city  of 
Ne^u  York,  respectfully  shows  that  your  petitioners  are  the  owners  in 
fee  of  certain  lands  and  real  estate  situate  in  the  second  ward  of  Long 
Island  City,  Queens  county,  New  York,  hereinafter  described.  That 
your  petitioner  is  a  corporation  duly  incorporated  pursuant  to  the 
laws  of  the  state  of  New  York. 

That  said  lands  have  been  owned  by  your  petitioner  for  upwards 
oi  fifteen  years  last  past,  and  for  many  years  past  have  been  and  are 
still  used  for  cemetery  purposes,  being  actually  and  exclusively  used 
and  occupied  for  the  purpose  of  the  burial  therein  of  the  mortal 
remains  of  human  beings. 

And  on  information  and  belief: 

That  James  Davren,  William  Feth  and  George  Casey  are  now  assessors 
of  Long  Island  City,  and  William  Smith  is  the  supervisor  thereof. 

That  the  said  lands  have  never  before,  since  they  were  purchased 
by  your  petitioner  and  used  and  occupied  for  cemetery  purposes  as 
aforesaid,  been  assessed  for  purposes  of  taxation  until  this  year. 

That  said  lands  have  been  assessed  this  year  as  follows: 

Block.  Lot.  Valuation  In  DoUari. 

295  29  1-2 Unknown $57, 5O0 

296  47  3-4 Unknown 42,600 

297  ■      48  1-4 Unknown 87,500 

298  39         Unknown 37,600 

299  541-4 Unknown 4^,000 

That  by  chapter  310  of  the  laws  of  1879  it  is  provided  that  no  land 
actually  used  and  occupied  for  cemetery  purposes  shall  be  sold  under 
execution  or  for  any  tax  or  assessment,  nor  shall  such  tax  or  assess- 
ment be  levied,  collected  or  imposed. 

That  said  assessment  is  illegal  because  controverting  the  terms  of 
said  statute. 

That  said  assessment  is  unequal,  in  that  the  assessment  has  been 
made  at  a  higher  proportionate  valuation  than  any  other  real  estate 
on  the  same  roll  by  the  same  officers. 

1.  For  other  forms  relating  to  the  general  term  of  the  supreme  court  af- 
review  of  assessment  proceedings  by  firming  an  order  of  the  special  term 
certiorari  see  vol.  4,  p.  586  et  seq.  striking  from  the  assessment   roll   an 

2.  This  petition  is  copied  from  the  assessment  on  the  relator  s  real  estate 
records  in  People  v.  Davren,  131  N.  Y.  was  affirmed. 

601.    in    which   case   an    order   of    the 

1031  Volume  5. 


6783.  DEAD  BODIES  AND  CEMETERIES.  6783. 

That  it  is  erroneous  by  reason  of  overvaluation. 

That  said  assessors,  on  the  third  day  of  December^  iS90,  finally  com- 
pleted and  verified  said  assessment  roll  and  delivered  same  to  IVtV/- 
iam  Smith,  supervisor,  the  officer  designated  by  law  for  that  purpose. 

And  your  petitioners  allege  that  they  have  been  aggrieved  and 
injured  by  such  illegality,  such  erroneous  assessment  and  such 
inequality  in  the  assessment  of  their  said  property  and  the  other  real 
estate  in  said  town. 

That  the  value  of  petitioners'  real  property  is  substantially  the 
same  this  year  as  it  was  during  the  years  iSi"?,  \%88,  and  \Z89. 

That  several  pieces  of  land  so  as  aforesaid  assessed  at  an  aggre- 
gate of  two  hundred  thousand  dollars  are  not  in  greater  value  in 
proportion  to  the  other  real  estate  in  said  town  than  one  hundred 
thousand  dollars. 

Wherefore,  your  petitioners  pray  that  a  writ  of  certiorari  may  issue 
to  the  %2XA  James  Davren,  William  Feth  and  George  Casey,  assessors, 
and  William  Smith,  supervisor,  commanding  them  to  certify  and 
return  the  assessment  roll  made  by  them  in  the  year  \Z90,  or  a  sworn 
or  certified  copy  thereof,  and  all  papers  appertaining  to  said  assess- 
ment, and  the  proofs  and  papers  before  them  relating  to  the  value  of 
said  petitioners'  said  property  and  the  other  real  estate  in  said  town. 

December  18,  i890. 

Trustees  of  St.  Patrick's  Cathedral 
in  the  City  of  New  York, 
(seal)        by  Geo.  B.  Coleman,  Clerk. 

T.  G.  Barry, 
Attorney  for  Petitioners, 
120  Broadway,  N.   Y. 

{Verification  by  Coleman  as  clerk.y- 

(2)  Answer  in  Action  to  Vacate  Assessment. 

Form  No.  6783.' 

Superior  Court  of  Buffalo. 
The  Buffalo  City  Cemetery,  plaintiff,  ) 

vs.  I"  Answer. 

The  City  of  Buffalo,  defendant.      ) 

The  defendant,  for  its  answer  to  the  complaint  in  this  action, 
states  as  its  first  defense  thereto,  that  it  has  not  knowledge  or  in- 

1.  For  forms  of  verification  consult  rates  and  assessments."  The  general 
the  title  Verifications.  term  of  the  superior  court  of  the  city  of 

2.  This  form  is  copied  from  the  record  Buffalo  reversed  a  judgment  in  favor  of 
in  Buffalo  City  Cemetery  v.  Buffalo,  46  the  plaintiff  entered  upon  the  decision 
N.  Y.  506.  The  action  in  that  case  was  of  the  court  at  special  term,  and  dis- 
brought  by  the  cemetery  corporation  to  missed  plaintiff's  complaint,  and  this 
vacate  an  assessment  to  defray  the  ex-  judgment  was  affirmed  on  appeal,  the 
pense  of  laying  certain  sidewalks  in  the  court  of  appeals  holding  that  "public 
vicinity  of  their  property,  the  corpora-  taxes,  rates  and  assessments  are  those 
tion  claiming  that  under  the  provisions  which  are  levied  for  some  public  or 
of  an  act  providing  for  the  incorpora-  general  use  or  purpose,  in  which  the 
tion  of  rural  cemetery  corporations  they  person  assessed  has  no  direct,  immedi- 
were  exempt  from  "all  public  taxes,  ate  and  peculiar  interest.  Thosecharges 

1032  Volume  5. 


6783.  DEAD  BODIES  AND  CEMETERIES.  6783. 

formation  sufficient  to  form  a  belief  whether  the  following  facts 
alleged  in  said  complaint  are  true,  and  therefore  it  denies  the  same, 
that  is  to  say: 

That  the  plaintiff  is  a  rural  cemetery  association,  incorporated  by 
virtue  of  an  act  of  the  state  of  New  York,  entitled  '1  An  Act  author- 
izing the  incorporation  of  rural  cemetery  associations,"  passed  April 
27,  1847,  and  the  various  acts  amendatory  thereof;  that  the  plaintiff 
is  the  owner  of  portions  of  a  tract  of  land  fronting  on  North  street 
in  the  city  of  Buffalo,  and  bounded  on  the  east  by  Delaware  street 
J^5  feet,  north  by  North  street  J^BJ^.d  feet,  and  south  by  a  line  parallel  to 
North  street  351  feet,  and  westXiy  Bonoery  street  ^2  feet;  that  the  land 
owned  by  the  plaintiff  is  held  and  occupied  by  it  as  a  burial  ground  for 
the  dead,  and  for  cemetery  purposes  only,  and  not  otherwise;  that  a 
large  portion  of  said  tract  of  land  is  owned,  held  and  occupied  by 
various  persons  other  than  the  plaintiff,  to  whom  the  same  has  been 
conveyed  by  the  grantors  of  this  plaintiff  in  small  lots  or  parcels,  to 
be  by  them  respectively  held,  used  and  occupied  as  a  place  for  the 
burial  of  their  dead,  and  that  the  same  was  so  held  and  occupied  by 
them  at  the  time  of  the  making  of  the  assessment  therein  mentioned; 
that  on  the  map  or  plan  annexed  to  said  complaint,  the  portions  of 
said  map  marked  "  B.  C.  C. "  were  at  same  time  and  are  held  and 
owned  by  persons  other  than  the  plaintiff;  that  a  large  portion 
of  said  tract  was  and  is  owned  and  occupied  by  persons  other  than 
the  plaintiff,  and  that  the  lands  of  the  plaintiff  were  at  the  time  of 
the  making  of  said  assessments  exempt  therefrom. 

And  for  its  second  defense  to  the  plaintiff's  cause  of  action,  the 
defendant  alleges  that  by  an  act  of  the  legislature  of  the  state  of 
New  York,  passed  April  19,  1858,  entitled  "An  Act  to  amend  an  act 
entitled  '  An  Act  to  revise  the  charter  of  the  city  of  Buffalo,  and  en- 
large its  boundaries,'"  passed  April  13,  1853,  it  is  provided  that  any 
person  owning  property  in  the  city  of  Buffalo,  upon  which  property, 
together  with  the  property  of  others,  a  tax  or  assessment  may  have 
been  made  under  the  charter  of  the  defendant,  may  pay  a  part  of 
any  such  tax  or  assessment  upon  any  part  of  the  property  owned  by 
himself  and  others,  and  so  taxed  and  assessed,  and  have  an  equi- 
table proportion  of  such  property  released  from  such  tax  or  assess- 
ment; and  the  common  council  of  the  defendant  are  required,  upon 
application  showing  such  right  and  payment,  to  release  such  just  and 
equitable  proportion;  and  that  the  plaintiff  has  not  paid  or  offered 
to  pay  any  such  equitable  part  of  the  assessment  set  forth  in  said 
complaint  as  the  property  alleged  in  said  complaint  to  belong  to  the 
plaintiff  would  bear  to  the  whole  of  the  tract  fronting  upon  North 
street,  between  Delaware  and  Bowery  streets,  mentioned  in  said 
complaint. 

And  for  its  third  defense  to  the  plaintiff's  complaint,  the  defend- 
ant alleges  that  the  several  persons  stated  in  said  complaint  to  be  the 
owners  of   large  portions  of   said  tract  of    land  mentioned  in  said 

and  impositions,  which  are  laid  directly  especially  assessed  for  the  expense  of 
upon  the  property  in  a  circumscribed  it.  are  not  public,  but  are  local  and 
locality,  to  effect  some  work  of  local  private,^  so  far  as  this  statute  is  con- 
convenience,  beneficial  to  the  property     cerned." 

1033  Volume  5. 


6784.  DEAD  BODIES  AND  CEMETERIES.  6784. 

complaint  are  not  the  owners  thereof,  but  are  owners  of  only  the 
right  of  interment  therein. 

Wherefore,  the  defendant  demands  judgment,  that  the  prayer  of 
the  complaint  be  denied,  and  that  it  recover  its  costs  in  this  action 
from  the  plaintiff. 

Dated  Buffalo,  April  20,  i869. 

David  F.  Day, 
Attorney  for  the  Defendant. 
(Verification.y- 

b.  To  Restrain  Burial  of  Noneommunieant.' 
Form  No.  6784.^ 

State  of  Indiana,      \  Tippecanoe  Superior  Court. 

Tippecanoe  Connty .  )      '     February  Term,  i854- 
Joseph  J.  Dwenger  and  Edwin  P.  Walters,  plaintiffs,  ) 
against  >• 

John  Geary,  defendant.  ) 

The  plaintiffs  above  named  complain  of  the  defendants,  and  allege: 

That  Joseph  J.  Dwenger  is  the  bishop  of  the  Roman  Catholic  church 
for  the  diocese  of  Fort  Wayne,  Indiana,  and  that  Edwin  P.  Walters  is 
the  pastor  of  the  congregation  of  the  Roman  Catholic  church  known 
as  St.  Mary's  of  Lafayette,  India7ia,z.x\6.  that  the  ecclesiastical  juris- 
diction of  the  said  Joseph  J.  Dwenger  as  such  Roman  Catholic  bishop 
embraces  the  said  city  of  Lafayette,  Indiana. 

That  in  accordance  with  the  principles  and  polity  of  the  Roman 
Catholic  church  the  title  and  control  of  all  church  property  are  vested 
in  the  bishop  of  the  diocese  in  which  such  property  is  situated,  and 
that  he  holds  it  in  trust  for  the  congregations  and  societies  of  the 
church,  to  be  by  them  used  and  enjoyed  according  to  its  principles 
and  polity. 

That  the  congregation  of  St.  Mary's  of  Lafayette,  Indiana,  holds 
and  enjoys  a  cemetery,  which,  for  about  twenty-five  years  past,  has 
been  held  and  occupied  as  a  place  of  burial  for  the  deceased  members 
of  that  congregation,  under  the  control  and  authority  of  the  bishop 
of  the  diocese  of  Fort  Wayne,  Indiana,  and  that  said  cemetery  has 
been  so  used  exclusively  for  the  interment  of  those  who  at  the  time 
of  their  death,  were  in  regular  standing  in  the  church,  according  to 
its  principles,  usages  and  doctrines. 

That  pursuant  to  those  principles,  usages  and  doctrines,  a  great 
part  of  the  said  cemetery  has  been  set  apart  and  consecrated  for  the 
burial  of  the  dead  according  to  the  rites,  usages  and  doctrines  of 

1.  For  the  form  of  verification  in  a  107,  in  which  case  a  judgment  sustain- 
particular  jurisdiction  consult  the  title  ing  a  demurrer  to  the  complaint  was 
Verifications.  reversed,   the   supreme   court  holding 

2.  For  a  case  in  which  a  bill  will  lie  that  the  defendant  had  no  right  to  in- 
to restrain  the  burial  of  persons  not  ter  the  body  of  his  dead  son  in  a  lot 
members  of  a  family  in  a  family  plot  held  under  a  license  from  the  church, 
see  Lewis  v.  Walker,  165  Pa.  St.  30.  and  that  the  plaintiffs  had,  at  the  time 

3.  This  form  is  based  on  the  facts  in  the  suit  was  begun,  a  right  to  restrain 
the  first  paragraph  of  plaintiff's  com-  him  from  so  doing. 

plaint  in   Dwenger  v.  Geary,   113  Ind. 

1034  Volume  5. 


6784.  DEAD  BODIES  AND  CEMETERIES.  6784. 

the  church,  and  that  in  such  consecrated  ground  only  members  of 
the  Roman  Catholic  ckurch  of  good  standing  are  allowed  sepulture. 

That  part  of  said  cemetery  ground,  although  held  by  the  congre- 
gation of  St.  Marys  aforesaid,  has  not  been  specially  consecrated, 
but  is  open  to  use  for  the  burial  of  persons  not  in  good  standing  as 
members  of  the  Roman  Catholic  church. 

That  on  the  tenth  day  of  February,  i8c$!4,  ont  James  Geary  died  by 
his  own  hand  and  that  his  body  is  now  awaiting  burial. 

That  defendant  yit?^//  Geary,  the  father  of  the  deceased  y<iw«  Geary^ 
owns  a  lot  in  the  cemetery  and  claims  a  right  to  there  inter  the  body 
of  his  deceased  son  and  will  so  inter  it  unless  enjoined. 

That  said  John  Geary  has  no  right  to  bury  his  son  in  the  lot  owned 
by  him  as  aforesaid,  because  the  cemetery  is  distinctively  consecrated 
groundj  for  the  burial  only  of  true  and  faithful  Catholics,  who  die  in 
full  communion  with  the  church,  and  James  Geary,  at  the  time  of  his 
death,  was  not  a  faithful  Catholic,  in  good  standing  with  the  church; 
for  although  he  may  have  once  been  a  Catholic,  he  had,  by  a  wicked 
and  depraved  life,  and  by  a  failure  to  observe  the  doctrines,  prac- 
tices, rules  and  regulations  of  the  church,  and  by  failing  to  contribute 
to  its  support,  and  by  failing  to  receive  its  sacraments,  long  before 
lost  and  forfeited  his  membership  and  standing,  and  had,  as  he  well 
knew,  absolved  and  released  the  church  from  all  duty  toward  and 
authority  over  him,  and  had  forfeited  his  right  to  burial  in  ground 
consecrated  by  the  church. 

That  on  or  about  the  second  da-y  oi  February,  iSS8,  Peter  Ball  and 
Owen  Ball,  communicants  in  good  standing  of  St.  Marys  aforesaid, 
conveyed  the  land  on  which  the  said  cemetery  is  now  located  to  John 
H.  Luers,  the  then  bishop  of  the  diocese  of  Fort  Wayne,  Indiana ;  that 
said  deed  of  conveyance  was  in  the  words  and  figures  following 
(Jlere  set  out  a  copy  of  the  deed);  that  on  said  date  the  said  John  H. 
Luers,  bishop  as  aforesaid,  took  the  said  land  in  trust  as  a  burying 
ground  for  the  Catholics  oi  the  city  oi Lafayette,  and  immediately  after 
the  conveyance  of  said  land  to  the  said  John  H.  Luers,  the  congrega- 
tion of  St.  Mary's,  under  the  authority  of  the  said  bishop,  and  with 
the  co-operation  of  Peter  and  Owen  Ball,  caused  the  ground  to  be  laid 
off  into  lots  and  plotted,  and  caused  to  be  set  apart  and  consecrated 
according  to  the  ritual  and  principles  of  the  Roman  Catholic  church 
for  the  burial  of  the  bodies  of  such  persons  as  were  entitled  to  sepul- 
ture according  to  the  rites  and  doctrines  of  the  church,  and  the 
privilege  of  burying  in  many  of  the  lots  was  granted,  for  a  considera- 
tion, to  members  of  the  church  and  a  certificate  e.xecuted  to  them, 
but  the  right  so  granted  was  subject  to  the  rules  of  the  church,  and 
among  other  requirements  necessary  to  entitle  one  to  interment,  it 
was  required  that  he  must  have  been  at  the  time  of  his  death  a  mem- 
ber of  the  church  in  full  communion,  and  must  have  performed  all  of 
his  church  duties,  and  by  the  rules  and  doctrines  of  the  church,  a 
person  who  committed  suicide  was  not  entitled  to  burial  in  conse- 
crated ground,  and  it  was  the  rule  governing  the  cemetery  of  St. 
Mary's,  that,  before  any  one  could  be  interred  in  consecrated  ground, 
a  permit  must  be  issued  by  the  pastor  of  St.  Marys  congregation, 
and  that  a  permit  was  asked  for  by  the  said/M«  Geary  for  the  burial 

1035  Volume  5. 


6785.  DEAD  BODIES  AND  CEMETERIES.  6785. 

of  his  son  in  the  lot  situated  in  consecrated  ground  and  was  refused. 

That  the  said  yames  Geary  at  the  time  of  his  death  was  not  living 
in  the  family  of  his  father,  John  Geary,  but  was  living  away  from  his 
father's  home. 

That  if  the  body  of  the  said  James  Geary  is  buried  in  his  father's 
lot  it  will  destroy  the  character  of  consecration  with  which  the 
ground  is  sacredly  invested,  and  greatly  tend  to  set  at  naught  the 
authority  of  the  plaintiffs  and  the  discipline  of  the  church. 

Wherefore,  the  plaintiffs  pray  that  the  said  John  Geary  be  en- 
joined from  interring  the  body  of  the  said  James  Geary  in  the  lot  in 
the  cemetery  of  the  congregation  of  St.  Mary's.,  purchased  by  the 
said  John  Geary.,  and  for  all  other  proper  relief. 

James  F.  McHugh,  Attornev  for  Plaintiffs. 

(  Verification,  y- 

c.  To  Recover  Plot  —  Answer  Setting  Up  Dedication  and  Occupancy. 

Form  No.  6785.'^ 

Supreme  Court,  Rockland  County. 
Clarence  R.   Conger  and  Margaret  Conger  ) 
against  V 

John  Treadway.  ) 

For  answer  to  the  complaint  of  the  plaintiffs  herein  the  defendant 
alleges  and  shows  to  this  court  the  following  facts,  to  wit: 

I.  He  denies  each  and  every  allegation  of  the  complaint. 

II.  For  a  further  defense  and  claim  for  affirmative  relief  he  alleges 
that  the  said  parcel  of  land  described  in  the  complaint  is,  and  has  been 
for  many  years  last  past,  a  burial  plot  in  said  Mount  Repose  Cemetery. 

III.  That  the  lands  of  which  said  lot  was  part  were,  about  the 
year  \%58,  owned  by  one  A sbury  De  Noyelles,  who,  on  or  about  the 
second  day  oi  May,  i85<?,  made  and  executed  a  deed  conveying  to 
one  John  S.  Gurnee  and  others,  ten  u?idivided eleventh  parts  of  said  lands 
and  retained  one  undivided  eleventh  part  thereof,  being  so  conveyed  for 
the  purpose  of  a  cemetery  or  burying  place  of  the  dead,  for  no  other 
purpose,  and  so  expressed  in  the  deed. 

IV.  That  thereafter  and  dibont  April,  i867,  this  defendant  pur- 
chased the  plot  described  in  the  complaint  from  the  aforesaid  owners 
of  said  cemetery  lands,  for  the  price  of  $72. SO,  and  that  soon  after 
making  said  purchase  this  defendant  paid  to  the  agents  of  said 
owners  the  sum  of  $30.  SO  of  said  purchase  price,  and  received 
a  receipt  from  said  agent  therefor,  leaving  a  balance  unpaid  of 
about  $4^. 

V.  That  as  part  of  said  agreement  of  purchase,  a  deed  conveying 
said  plot  to  this  defendant  was  to  be  executed  and  delivered  soon 
thereafter,  and  when  such  deed  was  executed  and  delivered  to  this 
defendant  the  balance  of  said  purchase  money  was  to  be  paid  by  him. 

1.  For  the  form  of  verification  in  a  ejectment  to  recover  a  plot  of  ground 
particular  jurisdiction  consult  the  title  known  as  lot  No.  192  of  Mount  Repose 
Verifications.  Cemetery  in   Haverstraw,   New  York. 

2.  This  form  is  copied  from  the  The  answer  was  held  to  set  up  a  good 
records  in  the  case  of  Conger  v.  Tread-     defense. 

way,  132  N.  Y.  259.     The  action  was 

1036  Volume  5. 


6786.  DEAD  BODIES  AND  CEMETERIES.  67  86. 

That  after  such  purchase  of  said  plot  by  this  defendant,  he  entered 
into  immediate  possession  of  same,  and  has  ever  since  said  purchase 
continued  in  actual  possession  and  buried  therein  his  wife  and  two 
children  and  five  grandchildren,  and  improved  the  lot. 

VI.  That  as  this  defendant  is  informed  and  believes,  the  plaintiff, 
Clarence  R.  Conger^  in  an  action  for  partition,  whicrein  Susan  D.  Gard- 
ner was  a  plaintiff  and  Cornelia  G.  Ayers  and  other  defendants,  to 
which,  however,  this  defendant  was  not  a  party,  became  the  purchaser 
of  all  the  right,  title  and  interest  of  the  aforesaid  owners  of  said 
cemetery  and  of  their  respective  heirs  at  law  and  devisees,  in  and  to 
the  lands  of  said  cemetery,  of  which  defendant's  plot  was  a  part,  but 
subject  to  defendant's  right  as  such  purchaser  and  occupant  of  said 
plot  under  and  by  a  deed  from  Irving  Broum,  referee,  bearing  date 
the  nineteenth  day  of  January,  i85^,  and  that  at  and  prior  to  the  time 
of  purchase  the  said  plaintiff,  as  defendant  is  informed  and  believes, 
had  information  and  notice  of  defendant's  purchase  of  said  plot  and 
occupancy  thereof. 

VII.  That  at  all  times  since  the  purchase  of  said  plot  as  aforesaid 
by  this  defendant,  he  has  been  ready  and  willing  to  pay  the  balance 
of  said  purchase  money  upon  receiving  a  deed  therefor,  and  that  since 
the  said  plaintiff,  Clarence  R.  Conger,  acquired  the  title  of  the  afore- 
said owners,  their  heirs  and  devisees,  by  said  deed  in  partition,  this 
defendant  has  tendered  to  the  said  plaintiff  the  balance  of  said  pur- 
chase money,  but  that  he  refused  and  still  refuses  to  receive  the 
same,  or  give  a  deed  therefor,  and  that  this  defendant  is  now  ready 
and  willing  to  perform  his  part  of  said  contract  of  purchase,  and  pay 
the  balance  of  said  purchase  money,  and  offers  now  so  to  do. 

Wherefore  this  defendant  asks  judgment  that  the  plaintiffs  be 
decreed  to  perform  the  said  contract  of  sale  by  receiving  the  balance 
of  said  purchase  money,  and  to  execute  and  deliver  to  this  defendant 
a  proper  deed  of  said  burial  plot,  with  costs  of  action. 

George  IV.  IVeiant,  Defendant's  Attorney. 

(  Verification?^ 

(2)  Agrainst  Cemeteries. 

a.  Petition  for  Mandamus  to  Compel  Issuance  of  Burial  Permit. 

Form  No.  6786.' 

The  Commonwealth  of  Pennsylvania,  ex  relatione^ 

William  H.  Boileau  and  Margaret  Jones,  I 

against  [ 

The  Mount  Moriah  Cemetery  Association.        J 

Your  petitioner  respectfully  represents: 

I.  That  the  defendant  was  incorporated  under  the  laws  of  this 

1.  For  the  form  of  verification  in  a  band  of  the  relator  Jones,  and  that  the 
particular  jurisdiction  consult  the  title  refusal  to  issue  a  permit  was  arbitrary 
Verifications.  and  unreasonable,  and  that  mandamus 

2.  This  petition  is  substantially  the  lay  to  compel  the  company  to  issue  the 
same  as  that  in  Mount  Moriah  Ceme-  permit.  When  Boileau  purchased, 
tery  Assoc,  v.  Com.,  81  Pa.  St.  235.  in  there  being  no  restriction  on  his  right 
which  case  it  was  held  that  the  relator  to  burial,  the  company  could  not  aftcr- 
Boileau  had  the  right  to  bury  the  hus-  ward  abridge  his  rights. 

1087  Volume  5. 


6786.  DEAD  BODIES  AND  CEMETERIES.  6786. 

commonwealth  by  act  of  assembly  of  March  27,  1855  (Pamph.  L.  of 
1857,  p.  729).  That  said  act  of  incorporation  was  as  follows:  {Here 
set  out  the  act  of  incorporation^ 

II.  That  on  the  sixteenth  day  oi  April,  i87S,  the  said  Mount  Moriah 
Cemetery  Association  conveyed  to  the  said  William  H.  Boileau  a  lot  in 
said  Mount  Moriah  Cemetery  in  the  city  of  Philadelphia,  known  as 
lot  No.  Jf8,  containing  ttvo  hundred  and  forty  square  feet,  and  being 
one-half  of  section  58,  the  said  lot  to  be  used  for  burial  purposes. 
That  said  lot  was  paid  for  by  said  William  H.  Boileau,  and  the  deed 
therefor  duly  registered.  That  appended  to.  said  deed  was  a  note 
that  all  transfers  of  lots,  to  be  valid,  must  be  approved  by  the  sec- 
retary and  registered  {stating  the  method  and  place  of  approval  and 
registration). 

III.  That  on  said  sixteenth  day  of  April,  iS7S,  the  said  William  H. 
Boileau  entered  into  a  parol  agreement  to  convey  a  portion  of  said 
lot  to  Mrs.  Margaret  Jones,  a  colored  woman  and  wife  of  the  late 
Henry  Jones,  deceased,  which  said  Margaret  Jones  joins  in  this  peti- 
tion. That  the  consideration  for  said  agreement  was  the  sum  of 
one  hundred  dollars,  which  amount  at  said  date  was  by  the  said 
Margaret  Jones  paid  to  the  said  William  H.  Boileau.  That  at  or 
about  said  date  the  said  lot  in  question  was  inspected  by  the  peti- 
tioners, Boileau  and  Jones,  in  the  presence  of  the  superintendent  and 
secretary  of  said  Mount  Moriah  Cemetery  Association,  who  drew  out 
the  plan  of  said  lot  and  interposed  no  objection  whatever  to  the 
contemplated  transfer  of  this  lot  to  said  Margaret  Jones. 

IV.  That  on  the  seventeenth  day  of  April,  i2,75,  upon  the  order  of 
said  William  H.  Boileau,  and  with  the  full  knowledge  and  tacit  con- 
sent of  said  Mount  Moriah  Cemetery  Association,  through  its  author- 
ized officers,  the  body  of  one  Elizabeth  Clark,  a  colored  woman  and 
a  sister  of  the  said  Margaret  Jones,  was  interred  in  the  said  lot  after  due 
public  notice,  given  by  advertisement  in  newspapers  published  in  said 
city,  which  expressly  stated  that  the  remains  of  the  deceased  woman 
would  be  conveyed  to  Mount  Moriah  Cemetery  from  Bethel  Church, 
which  place  of  worship  was  well  known  by  the  community  to  be 
attended  solely  by  colored  people. 

V.  That  on  the  tenth  day  of  May,  i875,  the  said  William  H. 
Boileau,  by  deed  in  proper  form  and  legally  acknowledged,  conveyed 
to  the  said  Margaret  Jones  the  entire  lot  hereinbefore  referred  to,  to 
be  used  by  her  for  burial  purposes.  That  the  consideration  therefor 
was  one  hundred  and  eighty  dollars,  which  said  sum  was  paid  in  full  by 
said  Margaret  Jones.  That  the  deed  in  question  was  forthwith  de- 
livered to  the  said  Margaret  Jones,  but  without  the  formality  of 
approval  by  the  secretary  and  registration. 

VI.  That  said  William  H.  Boileau  omitted  to  obtain  said  approval 
and  registration  of  said  deed  before  delivery  thereof  to  said  Mar- 
garet Jones  because  to  his  knowledge  the  rule  enjoining  such  ap- 
proval and  registration  was  in  most  cases  virtually  a  dead  letter,  and 
was  never  strictly  enforced.  That  this  knowledge  was  based  on  the 
fact  that  said  William  H.  Boileau  had  disposed  to  purchasers  lots  of 
said  corporation  of  the  value  of  more  than  fifty  thousand  dollars, 
and  not  one-half  of  the  deeds  to  the  lots  so  sold  were  ever  approved 

1038  Volume  5. 


6786.  DEAD  BODIES  AND  CEMETERIES.  6786. 

and  registered,  although  in  many  instances  interments  of  bodies 
took  place  in  the  lots  referred  to  in  said  conveyances  with  the  knowl- 
edge and  full  consent 'of  the  corporation  aforesaid. 

VII.  That  the  transfer  of  said  lot  to  the  said  Margaret  Jones  was 
made  with  the  full  knowledge  of  H.  P.  Connell,  who  was  the  secre- 
tary and  superintendent  of  said  Mount  Moriah  Cemetery  Association 
and  entrusted  with  its  general  management.  The  previous  interment 
of  a  colored  woman  in  the  lot,  that  the  said  Margaret  Jones  was  a  col- 
ored woman,  and  the  prospective  uses  of  said  lot  for  the  interment 
of  colored  members  of  the  family  of  the  said  Margaret  Jones 
were  known  to  him,  and  not  only  was  no  objection  interposed  to 
the  said  conveyance,  either  by  the  said  Conne// or  hy  the  said  corpora- 
tion, but  at  or  about  the  time  of  said  sale  and  conveyance  to  said 
Margaret  Jones  the  said  Connell  expressed  to  said  Boileau  a  regret 
that  the  corporation  itself  had  not  made  the  said  transfer  to  the  said 
Margaret  Jones  direct,  and  a  desire  that  the  improving  the  lot  for 
the  use  of  the  said  Margaret  Jones  should  be  entrusted  to  himself 
and  another  official. 

VIII.  That  after  the  date  of  the  last  mentioned  conveyance  the  said 
Margaret  Jones  and  her  late  husband,  Henry  Jones,  commenced  to 
adorn  and  improve  said  burial  lot,  and  contracted  with  one  Daniel 
Connell  for  the  erection  of  an  iron  railing  which  should  enclose  the 
lot  attached  to  marble  posts,  each  conspicuously  marked  ^^  Henry 
Jones,"  which  work  was  completed  in  the  summer  of  i87.5,  and  the 
sum  of  one  hundred  and  sixty  dollars  paid  therefor,  the  said  Daniel 
Connells  name  having  been  suggested  to  the  said  Margaret  Jones  by 
the  officer  in  charge  of  said  cemetery. 

IX.  That  neither  the  said  William  H.  Boileau  or  Margaret 
Jones  was  notified  of  any  opposition  to  the  approval  and  registration 
of  the  said  deed  to  said  Margaret  Jones,  nor  of  any  objection  to  the 
occupancy  of  the  lot  by  the  members  of  the  family  on  account  of 
their  color,  until  the  twenty-seventh  day  of  September,  i875. 

X.  That  on  the  t7venty-fifth  day  of  September,  i875,  the  said  Mar- 
garet Jones  sent  a  messenger  to  the  officers  in  charge  of  said  cemetery 
acquainting  them  with  the  death  of  her  husband,  and  of  her  desire 
and  intention  to  inter  his  remains  in  the  said  lot  on  the  tiventy-serenth 
day  of  September,  i875.  That  the  officer  in  charge  of  the  grounds 
promised  compliance  with  the  request,  and  that  a  grave  should  be 
dug  in  the  lot  in  proper  time  to  receive  the  case  which  was  intended 
to  enclose  the  coffin  of  the  deceased. 

XI.  That  full  arrangements  were  thereupon  made  for  the  funeral, 
and  advertisements  were  inserted  in  the  public  press,  and  a  large 
concourse  of  friends  assembled  at  the  house  of  the  deceased  on  the 
twenty-seventh  day  of  September,  i875,  to  participate  in  the  religious 
exercises  and  to  attend  the  corpse  to  the  grave. 

XII.  That  oXiOMt  fifteen  minutes  prior  to  the  time  advertised  for 
the  funeral  a  note,  of  which  the  following  is  a  copy,  was  left  at  the 
dwelling  of  the  said  Margaret  Jones-.  — ''U.2idi2iVCi:  I  am  in  receipt  of 
a  note  from  you,  requesting  a  grave  to  be  dug  in  lot  No.-^in  Mount 
Moriah  Cemetery.  I  am  unable  to  comply  with  your  request,  because 
the  lot  in  question  is  registered  as  belonging  to  William  H.  Boileau, 

1089  Volume  5. 


6786.  DEAD  BODIES  AND  CEMETERIES.  6786. 

and  the  rules  of  the  company  require  me  to  act  only  under  the  orders 
of  the  registered  owner.     Very  respectfully, 

H.  F.  Connelly  Superintendent." 

XIII.  That  said  note  was  immediately  sent  to  said  William  H. 
Boileau^  who  forthwith  indorsed  thereon  as  follows,  to  wit: 

''Philadelphia,  Sept.  21  th,  iS75. 
"  Dear  Sir:  —  Please  to  let  the  bearer  bury  in  the  lot. 

JV.  H.  Boileau. " 

That  the  note  so  indorsed  was  at  once  conveyed  to  the  cemetery, 
and  with  the  two  deeds  was  handed  to  the  officer  in  charge,  who 
acknowledged  the  validity  of  the  order  but  asserted  that,  objection 
having  been  made  by  some  of  the  lot  holders  to  the  interment  of 
colored  people  in  the  cemetery,  he  was  instructed  by  the  managers 
not  to  allow  the  bodies  of  colored  people  to  be  brought  within  the 
grounds,  and  refused  to  allow  the  body  of  the  deceased  to  be  tempo- 
rarily placed  in  the  receiving  vault  until  said  Margaret  Jones  could 
make  other  arrangements  for  its  interment. 

XIV.  That  unaware  of  this  prohibition,  upon  conclusion  of  the 
religious  exercises  at  the  late  home  of  the  deceased,  the  funeral  pro- 
cession traversed  its  route  to  the  cemetery,  but  was  checked  in  its 
passage  by  parties  purporting  to  be  sent  by  the  superintendent  for 
the  purpose  of  notifying  them  of  the  prohibition. 

XV.  That  the  said  Margaret  Jones  was  thereupon  compelled  to 
convey  the  remains  of  her  late  husband  to  the  receiving  vault  of 
Lebanon  Cemetery  in  the  said  city  of  Philadelphia^  where  it  still  remains 
unburied. 

XVI.  That  upon  the  twenty-ninth  day  oi  September,  i875,  the  said 
Williajn  H.  Boileau  and  the  said  Margaret  Jones  made  a  demand  upon 
James  Smyth,  the  president  of  the  said  Mount  Moriah  Cemetery  Asso- 
ciation, and  upon  the  said  H.  P.  Connell,  secretary  thereof,  forthwith 
to  approve  and  register  the  deed  to  the  said  Margaret  Jones  of  the 
lot  in  question  from  the  said  William  H.  Boileau,  or  should  that 
demand  be  refused,  that  they  acknowledge  and  execute  the  order  of 
Boileau  for  interment,  and  give  permission  to  said  Margaret  Jones  to 
bury  her  late  husband  in  said  lot.  That  to  this  demand  the  presi- 
dent has  made  no  reply;  but  that  the  secretary  and  superintendent 
has  answered  with  a  peremptory  refusal  upon  the  part  of  the  said 
corporation  to  approve  or  register  the  deed  to  the  said  Margaret  Jones 
or  to  honor  the  order  for  interment. 

XVII.  Your  petitioners  therefore  pray  this  honorable  court  to 
issue  a  writ  of  mandamus  directed  to  the  Mount  Moriah  Cemetery  Asso- 
ciation, and  to  each  of  its  officers,  to  accept  and  carry  into  execution 
the  order  of  the  said  William  H.  Boileau,  and  at  once  permit  the 
body  of  Henry  Jones  to  be  interred  in  lot  No.  Jf.8  in  said  Mount  Moriah 
Cemetery. 

And  your  petitioners  will  ever  pray,  etc. 

William  H.  Boileau. 
Margaret  Jones. 
City  and  County  of  Philadelphia,  ss. 

William  H.  Boileau,  being  duly  sworn  according  to   law,  deposes 

1040  Volume  5. 


►  Bill  of  Complaint. 


6787.  DEAD  BODIES  AND  CEMETERIES.  ^1%1, 

and  says  that  the  facts  set  forth  in  the  above  petition  are  just  and 
true  to  the  best  of  his- knowledge  and  belief. 

„  ,      ,.       .  William  H.  Boileau. 

Sworn  to  and  subscribed  before  me  this  tiventy-eighth  day  oi  Febru- 
ary, i876. 

Norton  Porter,  Notary  Public. 

b.  Bill  for  Pepmission  to  Remove  Body. 
Form  No.  6787.' 

Commonwealth  of  Massachusetts. 
Supreme  Judicial  Court. 
Suffolk,  ss.  In  Equity. 

Between  ^ 

Nathaniel  Weld 
and 
Gideon  Walker,  George  Ivers  and 
Forest  Hills  Cemetery  Corporation. 
To  the  Honorable  the  Justices  of  the  Supreme  Judicial  Conrt  in  and 
for  the  County  of  Suffolk  in  the  Commonwealth  of  Massachusetts, 
sitting  in  equity: 
Respectfully  represents  Nathaniel  Weld  of  Boston  in  the  county  of 
Suffolk,  aforesaid,    that  Gideon  Walker,  of   said  Boston,   and  George 
Ivers,  of  Evans'  Mills  in  the  county  of  Jefferson  in  the  state  of  Neio 
York,  were,  on  the  twenty-ntnth  day  of  August,  iS75,  the  owners  of  a 
certain  burial  right  or  lot  numbered  244^,  in  the  cemetery  known 
and  called  the  Forest  Hills  Cemetery,  in  the  said  city  of  Boston,  which 
said  cemetery  is  owned,  occupied,  carried  on,  taken  care  of  and  con- 
trolled by  the  Forest  Hills  Cemetery,  a  corporation  duly  established 
by  law,  and  having  its  usual  place  of  business  in  said  Boston,  and  the 
said  corporation  claim  and  exercise  the  control  over  the  interment 
and  removal  of  bodies,  and  over  persons  going  into  said  cemetery  and 
while  they  are  within  the  same. 

Your  petitioner  further  shows,  that  his  wife,  Mary  P.  Weld,  died 
at  said  Boston,  on  the  twenty-seventh  day  of  August,  iS75,  and  was 
buried  in  said  Forest  Hills  Cemetery  in  said  lot  ^o.2JI^Jf2,  then  and  now 
owned  by  said  Walker  and  Ivers-,  and  your  petitioner  has  no  legal 
right  or  title  therein;  that  the  said  Mary  P.  Weld  was  the  sister  of 
Isabella  Walker  and  Eunice  W.  Ivers,  the  wives  of  said  Walker  and 
Ivers,  and  that  upon  the  decease  of  said  Mary  P.,  the  said  Isabella 
and  Eunice  W.,  together  with  the  said  Walker,  immediately  com- 
menced importuning  your  petitioner  to  have  his  wife,  the  said  Mary 

1.  This  form  is  copied  from  the  record  tendon  or  understanding  that  it  should 
in  the  case  of  Weld  z/.  Walker,  130  Mass.  be  her  final  resting-place,  a  tourt  of 
422.  In  this  case  a  decree  was  entered  equity  may  permit  him,  after  such 
in  conformity  with  the  prayer  of  the  burial,  to  remove  her  body,  coffin  and 
bill,  from  which  the  defendant  Walker  tombstones  to  his  own  land,  and  re- 
appealed,  but  the  decree  was  affirmed  strain  that  person  from  interfering  with 
on  appeal,  the  court  holding  that  if  a  such  removal. 

husband  has  not   freely   consented   to         For  the  present  form  of  a  bilUn  equity 

the  burial  of  his  wife  in  a  lot  of  land  in  Massachusetts  sec  vol.   3,   Form  No. 

owned  by  another  person,  with  the  in-  4273. 

5  E.  of  F.  P.  —  66.  1041  Volume  5. 


6787.  DEAD  BODIES  AND  CEMETERIES.  ^1%1. 

/*.,  buried  in  their  said  lot,  and  that  your  petitioner,  being  then  in 
great  distress  of  mind,  and  being  worn  out  in  taking  care  of  his  said 
wife  in  her  sickness,  yielded  to  their  continued  importunities,  much 
against  his  wishes  and  feelings,  fearing  that  they  would  make  trouble 
for  him  if  he  did  not  consent;  and  he  finally  consented  that  she 
might  be  buried  in  the  said  lot,  which  he  should  not  have  done  had 
his  mind  been  in  condition  to  realize  the  situation;  and  that  he  pro- 
cured a  casket  and  clothes  for  her  burial,  and  the  body  was  clothed 
in  the  said  clothes  and  put  into  the  said  casket  of  your  petitioner, 
and  so  buried  in  the  said  lot  on  the  twenty-ninth  day  of  August,  iS75, 
and  has  there  remained  from  thence  to  the  bringing  of  this  peti- 
tion ;  and  your  petitioner  says  that  he  has  no  right  or  authority  to  take 
care  of  her  said  grave,  to  erect  grave-stones  or  monuments  thereon 
or  to  beautify  or  adorn  the  same  or  the  said  grave  lot,  or  to  bury 
other  of  his  or  her  friends  or  family  by  her  side,  or  to  be  buried  by 
her  side  himself;  all  of  which  he  feels  that  he  may  desire  to  do. 

And  your  petitioner  further  says,  that  he  is  a  joint  owner  in  a  burial 
lot  in  the  Momit  Hope  Cemetery,  a  cemetery  in  said  city  of  Boston,  the 
said  lot  belonging  to  the  heirs  of  E.  Weld,  of  whom  he  is  one,  in 
which  his  father  and  mother  are  buried  and  in  which  he  has  the  right 
to  bury  and  to  set  up  grave-stones  and  monuments  and  to  beautify  the 
said  lot  and  the  grave,  and  to  be  buried  therein  himself  at  his  decease; 
and  that  he  desires  to  remove  the  casket  containing  the  remains  of 
his  said  wife,  together  with  said  remains  and  said  clothes  for  her  burial, 
and  any  stones  or  monuments  that  he  has  placed  at  her  grave,  from 
the  said  lot  in  said  Forest  Hills  Cemetery,  belonging  to  said  Walker 
and  Ivers,  to  his  said  lot  in  Mount  Hope  Cemetery,  in  which  no  near 
relative  of  said  Mary  P.  is  now  buried ;  that  the  said  remains  may  be 
buried  with  his  relatives  and  in  his  said  burial-place,  and  where,  at 
his  decease,  he  may  be  buried  at  her  side;  and  that  he  has  obtained  a 
permit  in  due  form  of  law  from  the  proper  authorities,  to  wit,  the 
board  of  health  of  the  city  of  Boston,  to  so  remove  the  said  casket 
and  clothes  for  her  burial  and  the  remains  from  said  lot  in  said 
Forest  Hills  Cemetery,  and  to  bury  the  same  in  his  said  lot  in  said 
Mount  Hope  Cemetery;  and  your  petitioner  says  that  in  law  and  in 
equity  and  good  conscience,  he  had  and  has  the  right  to  so  remove 
the  same  and  bury  them  in  said  Mount  Hope  Cemetery. 

And  your  petitioner  further  says  that  he  applied  in  a  friendly  and 
proper  manner  to  the  said  Gideon  Walker  and  said  George  Ivers,  and 
requested  permission,  in  a  careful  and  proper  manner,  doing  no  un- 
necessary damage  to  the  said  lot,  to  take  up  the  said  casket  and 
clothes  and  the  remains  of  his  said  wife,  and  the  said  stones  and 
monuments,  and  remove  the  same  to  his  said  lot  in  Mount  Hope  Ceme- 
tery, leaving  the  said  lot  in  good  and  proper  condition;  and  they 
declined  to  grant  to  him  the  said  permission,  and  did  refuse  to  permit 
him  to  remove  the  same,  and  refuse  to  let  him  or  any  one  for  him 
enter  upon  said  lot;  and  the  said  defendant,  Gideon  Walker,  as  your 
petitioner  is  informed  and  believes,  gave  to  one  Abtier  Moulton,  who 
was  and  is  the  superintendent  and  agent  of  said  Forest  Hills  Cemetery 
Corporation  and  cemetery,  a  notice  or  order  in  writing  in  words  and 
figures  as  follows,  to  wit: 

1042  Volume  5. 


6787.  DEAD  BODIES  AND  CEMETERIES.  ^1%1, 

"  To  Abner  Moulton,  Esq. , 

Superintendent  of  Forest  Hills  Cemetery. 

You  are  forbidden  to  allow  the  removal  of  the  remains  of  Mary  P. 
Weld,  buried  in  the  cemetery  lot  24J^,  nor  to  permit  any  trespass  in 
said  lot  nor  entry  in  same,  as  the  above  lot  belongs  to  me. 

Boston,  October  27,  i%77.  Gideon  Walker." 

And  your  petitioner  further  says  that  he  requested  permission  to 
remove  the  said  casket,  clothes,  remains,  stones  and  monuments  of  and 
from  the  said  Forest  Hills  Cemetery  Corporation,  and  said  corporation 
refused  to  grant  said  permission,  alleging  that  it  had  no  authority  to 
grant  the  same  and  forbid  him  his  removing  the  same  and  from  going 
into  said  cemetery  for  that  purpose;  and  he  further  says,  that  said 
defendants  Walker  and  Ivers  and  said  Forest  Hills  Cemetery  Corpora- 
tion threaten  him  with  suits  at  law  and  criminal  prosecutions  if  he 
shall  remove  or  attempt  to  remove  said  casket,  clothes,  stones  or 
monuments  and  remains  of  said  Mary  P.  Weld,  his  said  wife,  from 
said  lot,  whereby  he  is  unable  to  remove  the  same. 

All  of  which  actings  and  doing  of  said  defendants  are  contrary  to 
equity  and  good  conscience,  and  tend  to  the  manifest  wrong,  injury 
and  oppression  of  your  petitioner  in  the  premises;  and  forasmuch 
as  your  petitioner  is  remediless  in  the  premises  at  and  by  the 
strict  rules  of  the  common  law,  and  is  relievable  only  in  a  court  of 
equity,  where  matters  of  this  nature  are  properly  cognizable  and 
relievable; 

To  the  end  therefore,  that  the  said  defendants  and  each  of  them 
may,  to  the  best  of  their  and  each  of  their  knowledge,  remembrance, 
information  and  belief,  full,  true,  direct  and  perfect  answers  and 
answer  make  to  all  and  singular  the  matters  aforesaid,  but  not  upon 
their  or  either  of  their  corporal  oath  or  oaths,  which  is  hereby  waived, 
and  further,  that  your  petitioner  may,  by  the  decree  and  direction  of 
this  court,  be  permitted  to  remove  the  remains  of  said  Mary  P.  Weld 
and  said  casket,  clothes,  stones  and  monuments  from  said  lot  in  said 
Forest  Hills  Cemetery  to  said  petitioner's  lot  in  said  Mount  Hope  Ceme- 
tery in  such  manner  as  this  court  shall  direct;  and  that  said  defend- 
ants and  each  of  them  and  their  and  each  of  their  agents,  attorneys 
and  servants,  may  be  restrained,  by  an  injunction  issuing  out  of  this 
court,  from  hindering,  opposing,  objecting  to  or  preventing  your  peti- 
tioner from  removing  the  said  casket,  clothes,  stones,  monuments 
and  remains  from  said  lot  in  sa.\d  Forest  Hills  Cemetery  to  said  lot  in 
said  Mount  Hope  Cemetery,  and  also  from  in  any  way  interefering  to 
prevent  the  same;  and  for  such  other  and  further  relief  in  the  prem- 
ises as  the  nature  and  circumstances  of  this  case  may  require  and  to 
your  honors  shall  seem  meet: 

May  it  please  your  honors  to  grant  unto  your  petitioner,  not  only 
a  writ  of  injunction  issuing  out  and  under  the  seal  of  this  court,  to 
be  directed  to  said  defendants  and  each  of  them,  and  to  their  and 
each  of  their  agents  and  servants,  restraining  them  and  each  of  them 
from  objecting  to,  opposing  or  hindering  or  in  any  way  interfenng 
with  your  petitioner  in  removing  the  said  casket,  clothes,  remains, 
stones  and  monuments  in  said  Forest  Hills  Cemetery  to  said  lot  in  said 
Mount  Hope  Cemetery;  but  also  a  writ  of  subpoena  to  be  directed  to 

1048  Vojutne  5. 


6788. 


DEAD  BODIES  AND  CEMETERIES. 


6788. 


the  said  Gideon  Walker,  George  Ivers  and  the  said  Forest  Hills  Ceme- 
tery Corporation,  defendants,  thereby  commanding  them  and  each  of 
them,  at  a  certain  time  and  under  a  certain  penalty  therein  to  be 
limited,  to  appear  before  this  court,  and  then  and  full,  direct  and  per- 
fect answers  make  to  all  and  singular  the  premises;  and  further,  to 
stand  to,  perform  and  abide  such  further  orders,  directions  and 
decrees  therein  as  to  this  court  shall  seem  meet. 

Nath'l  Weld. 
Burbank  6^  Lund, 

Plaintiff's  Solicitors. 


In  the  Court  of  Common  Pleas, 
No.  1,  for  the  City  and  County 
of  Philadelphia,  of  June 
Term,  i8<?5.  No.  S.  Sitting 
in  Chancery. 


c.  Bill  for  Injunction  to  Prevent  Removal  of  Body. 

Form  No.  6788.' 

The  First  Presbyterian  Church  in  the" 
Northern  Liberties,  Mary  Ann  Wil- 
son,  Benjamin    Benner,   Margaret 
Benner,  William   S.  Magee,  James 
H.  Magee  and  James  White,  plain- 
tiffs, \ 
against 
The  Second  Presbyterian  Church  in  the 
City   of  Philadelphia,  Edward  K. 
Tryon  and  Pearson  Yard,  defend- 
ants. 
To  the  Honorable  the  Judges  of  the  said  Court. 

Your  orators  complain  and  say:  I.  That  the  Second  Presbyterian 
Church  in  the  City  of  Philadelphia,  va  April  k.  d.  \W5,  established  a 
branch  church  in  \h^  Northern  Liberties,  and  that  both  churches  were 
under  the  same  pastor,  the  same  trustees,  and  the  members  of  each 
church  were  regarded  as  members  of  the  same  body  corporate. 

II.  That  at  the  time  the  said  branch  church  was  established  the 
Second  Presbyterian  Church  purchased  a  lot  of  ground  on  Noble  and 
Buttonwood  streets  between  Fifth  and  Sixth  streets,  in  the  city  of 
Philadelphia,  in  the  state  oi  Pennsylvania,  as  a  burial  ground  for  the 
use  of  both  churches. 

III.  That  by  an  ordinance  of  said  church  corporation,  adopted  the 
ninth  day  of  September,  A.  D.  \W5,  every  member  of  either  congre- 
gation having  a  family  and  being  desirous  of  having  graves  con- 
tiguous to  each  other  should  have  the  privilege  of  having  sufficient 
ground  reserved  when  the  first  interment  took  place  on  payment  of 
two  dollars  for  each  space  for  a  grave  reserved,  not  exceeding  three 
spaces  in  the  whole,  and  that  each  holder  of  a  pew  in  such  branch 
church  thereby  became  entitled  to  the  right  of  burial  in  said  ground. 


1.  This  bill  is  in  substance  that  used 
in  First  Presbyterian  Church  v.  Second 
Presbyterian  Church,  2  Brews.  (Pa.) 
372,  in  which  case  the  removal  of  the  re- 
mains was  enjoined,  although  the  bill 
was  dismissed  as  to  the  First  Presby- 
terian Church  on  the  ground  that  it  had 


no  interest  in  the  burial  ground,  hav- 
ing disposed  of  such  interest  prior  to 
the  bill;  and  as  to  the  complainant 
Mary  Ann  Wilson,  she  having  signified 
her  desire  to  withdraw  from  the  suit  as 
complainant. 


1044 


Volume  5. 


6789.  DEAD  BODIES  AND  CEMETERIES.  6789. 

IV.  That  interments  of  deceased  members  of  said  branch  church 
were  made  in  said  ground,  and  additional  spaces  for  graves  were 
reserved  for  their  families  in  pursuance  of  said  ordinance. 

V.  That  in  the  year  \MS  an  agreement  was  made  for  the  separa- 
tion  of  the  said  branch  church  from  the  Second  Presbxterian  Church  in 
the  City  of  Philadelphia,  which  was  sanctioned  by  the  presbytery,  and 
the  said  branch  church  was  duly  incorporated  the  sixth  day  oi  Jan- 
uary, i8i4,  under  the  name  of  "  The  First  Presbyterian  Church  in  the 
Northern  Liberties." 

VI.  That  by  the  agreement  for  the  separation,  it  was  provided  that 
the  right  of  burial  in  the  above  mentioned  burying  ground  should 
continue  in  the  members  of  both  churches,  the  same  as  before  the 
separation,  which  right  was  subsequently,  in  the  year  i87P,  restricted 
to  certain  families  in  the  congregation,  and  has  been  continually 
enjoyed  since  the  separation,  and  a  burial  was  made  in  said  burial 
ground  as  late  as  a.  d.  \Z56. 

VII.  That  in  the  year  i8iP,  \.\i^  First  Presbyterian  Church  in  the 
Northern  Liberties  sold  to  the  Second  Presbyterian  Church  in  the  City  of 
Philadelphia  the  right  of  %z\A  First  Presbyterian  Church  in  said  burial 
ground,  making  reservations  for  such  families  as  should  desire  to 
continue  their  right  of  burial  in  said  ground. 

VIII.  That  the  individual  plaintiffs  in  this  bill  have  ancestors 
interred  in  said  ground,  and  being  members  of  families  for  whom 
the  reservation  of  burial  rights  in  said  ground  was  made,  and  also 
being  members  of  the  First  Presbyterian  Church  in  the  Northern 
Liberties  aforesaid,  are  entitled  to  retain  and  enjoy  said  rights. 

IX.  That  the  said  Second  Presbyterian  Church  has  sold  said  burial 
ground  to  the  ^t.iti\diZX\\.  Edward K.  Tryon,  and  to  put  said  ground  in 
a  suitable  condition  to  perfect  the  sale,  the  trustees  of  said  church 
have  caused  a  notice  to  be  published  by  their  agent,  Pearson  Yard,  of 
their  intention  to  remove  the  bodies  interred  in  said  ground,  in  vio- 
lation of  the  rights  of  the  plaintiffs  in  the  premises. 

Wherefore  your  orators  pray: 

I.  That  said  defendants  be  restrained  by  the  injunction  of  this 
honorable  court  from  removing  the  remains  of  the  dead  from  said 
cemetery,  as  aforesaid. 

II.  General  relief. 

John  L.  Shoemaker, 
Solicitor  for  Complainants. 

d.  Bill  to  Compel  Restoration  of  Body  to  Lot.' 

Form  No.  6789.* 

1.  In  an  action  to  restrain  defendant  the  damages  they  have  themselves  sus- 
from  desecrating  a  burial  lot  reserved  tained.  Mitchell  v.  Thorne.  134  N.  Y. 
in  a  deed  from  plaintiff's  ancestor  and  536,  affirming  47  N.  Y.  St.  Rep.  896. 
for  damages,  the  complaint  need  not  2.  this  form  is  based  on  the  facts  in 
aver  that  such  ancestor  died  intestate,  the  case  of  Pierce  v.  Swan  Point  Ceme- 
nor  is  it  necessary  that  the  complaint  tery,  10  R.  I.  227.  In  that  case  a  de- 
show  that  all  persons  having  an  interest  murrer  was  filed  on  behalf  of  Almira  T. 
therein  are  made  parties  to  the  ac-  Metcalf.  for  want  of  equity  and  an  an- 
tion,  as  the  plaintiffs  can  only  recover  swer  interposed  on  behalf  of  the  Pro- 

1045  Volume  5. 


6789.  DEAD  BODIES  AND  CEMETERIES.  6789. 

n        J  c  Supreme  Court, 

Frovidence.  Sc.  aj.j.  n  *    t\    •  ■ 

'  Appellate  Division, 

William  G.  Pierce  and  Almira  F.  Pierce.,  '\ 

his  wife,  plaintiffs, 

vs. 

Proprietors  of  Swan  Point  Cemetery  and 

Almira  T.  Metcalf,  defendants. 

Bill  in  Equity. 
William  G.  Pierce  and  Almira  F.  Pierce,  his  7vife,  of  the  city  of  Provi- 
dence, in  the  said  county  of  Providence,  bring  this  bill  of  complaint 
against  Proprietors  of  Swan  Point  Cemetery  and  Almira  T.  Met  calf ,  of 
the  same  place,  and  thereupon  complaining  say, 

I.  That  defendant.  Proprietors  of  Swafi  Point  Cemetery,  is  a  corpo- 
ration duly  created  under  the  laws  of  this  state. 

II.  That  on  the  fourth  day  of  May,  iS56,  one  Whiting  Metcalf  died 
leaving  the  complainant  Almira  F.  Pierce  his  sole  heir  at  law,  and 
the  said  Almira  T.  Metcalf,  his  widow,  him  surviving. 

III.  That  during  his  lifetime  the  said  Whiting  Metcalf  had  con- 
veyed to  him,  and  became  the  owner  of  a  certain  burial  lot  in  the 
First  Congregational  Society's  Burial  Ground  in  Staan  Point  Cemetery; 
that  he  was  a  Unitarian  in  religious  belief,  a  communicant  of  that 
denomination,  and  a  prominent  member  of  the  so  called  and  well 
known  '■''First  Congregational  Society  of  the  City  of  Providence^'  and  that 
the  burial  lot  so  purchased  by  him  was  one  of  a  family  group  of  lots, 
of  which  group  the  several  lots  were  held  and  owned  by  the  brothers 
and  kindred  of  said  Whiting  Metcalf. 

IV.  That  upon  the  decease  of  the  said  Whiting  Metcalf  he  was 
buried  in  said  lot,  and  as  the  plaintiffs  allege  upon  information  and 
belief,  in  accordance  with  his  wishes  and  desires  expressed  during 
his  lifetime  and  with  the  approbation  of  his  widow,  the  said  Almira 
T.  Metcalf;  and  his  remains  remained  for  about  thirteen  years  in  said 
place  of  burial. 

V.  That  the  said  lot  in  the  Swan  Point  Cemetery  became  the  absolute 
property,  by  descent,  of  the  complainant,  Almira  F.  Pierce,  upon  the 
death  of  the  said  Whiting  Metcalf,  she  being  his  only  child,  heir  at 
law  and  next  of  kin. 

VI.  That  on  or  about  the  twenty-second dscy  of  July,  i869,  the  defend- 
ant, Almira  T.  Metcalf,  requested  in  writing  the  permission  of  the 
gentlemen  having  charge  of  the  Unitarian  Cemetery  for  the  removal 
of  his  remains,  and  set  forth  as  her  reasons  therefor  the  fact  that 

prietors   of  Swan    Point  Cemetery,  in  enter  up  between  the  other  parties  to 

which  they  denied   the  jurisdiction  of  the  bill.    The  court  held  that  while  con- 

the  court  to  direct  or  control  the  man-  sent  of  the  defendant  corporation  could 

agement  of  their  internal  affairs,  or  in  not  give  jurisdiction  to  the  court,  yet 

the  subject  matter  of  the  bill,  so  far  as  that   said    corporation    was    in    fact   a 

relief    was   prayed   against  them,   but  trustee  for  certain  purposes,  and  that 

stated  that  they  believed  all  the  facts  when  the  trust  was  not  properly  exe- 

stated  and  charged   in    the    bill  to  be  cuted  the  court  had  the  same  jurisdic- 

true,  and  submitted  to  execute,  or  to  tion  to  compel  its  execution  as  in  the 

allow    to    be    executed     within     their  case  of  any  other  trust.     The  demurrer 

grounds,  such  order  and  decree  in  the  of  Mrs.  Metcalf  was  overruled, 
premises  as  the  court  might  see  fit  to 

1046  Volume  5. 


6789.  DEAD  BODIES  AND  CEMETERIES.  6789. 

she  had  secured  a  lot  in  Swan  Point  Cemetery,  and  wished  to  remove 
to  It  the  remains  of  her  late  husband,  and  there  erect  a  suitable  monu- 
ment  to  his  memory. ' 

VII.  That  such  consent  was  refused  by  the  authorities  of  said  cem- 
etery  unless  accompanied  by  "the  written  request  of  the  relatives 
countersigned  by  the  society's  committee";  and  that  afterwards  the 
complainants  protested  to  the  actuary  of  the  defendant  corporation 
against  such  removal,  positively  forbidding  the  same;  and  that  the 
filing  of  said  protest  wag  known  to  the  respondent,  Almira  T.  Met- 
calf,  before  the  removal,  as  the  complainants  are  informed  and 
believe. 

VIII.  That  on  or  about  the  first  day  of  August,  iS69,  the 
remains  of  the  said  Whiting  Metcalf  were  forcibly,  without  the 
authority,  consent  or  approval  of  the  complainants,  in  violation  of 
the  by-laws  of  the  defendant  corporation,  in  violation  of  law.  of  right, 
and  of  the  sacredness  of  the  tomb,  removed,  under  the  direction  of 
the  said  Almira  T.  Metcalf,  from  the  lot  aforesaid  and  placed  in 
another  lot  in  said  cemetery. 

IX.  That  after  said  body  had  been  removed,  and  while  it  was 
exposed,  the  superintendent  of  said  cemetery  did  not  direct  its  imme- 
diate reinterment  in  the  grave  whence  it  was  taken,  but  permitted 
its  interment  in  the  lot  to  which  it  had  been  removed. 

X.  That  on  the  ninth  day  of  August,  i869,  the  complainants 
requested  the  directors  of  the  defendant  corporation  to  restore  said 
remains  to  the  place  whence  the  same  had  been  taken,  and  the  defend- 
ant corporation  neglected  and  refused  to  comply  with  such  request, 
but  afterwards  passed  a  vote  declaring  that  what  had  been  done  was 
in  violation  of  their  by-laws. 

XI.  That  on  the  twenty-first  day  of  February,  iS70,  the  complain- 
ants notified  the  defendant,  Almira  T.  Metcalf,  of  their  protest  here- 
inbefore referred  to,  requesting  and  desiring  her  to  restore  said 
remains  to  the  place  from  whence  they  were  taken,  and  said  request 
was  refused. 

XII.  That  all  of  said  acts  on  the  part  of  the  said  Almira  T.  Metcalf 
and  the  directors  of  the  Swan  Point  Cemetery,  were  in  direct,  absolute 
and  palpable  violation  of  the  rights  of  the  complainants  herein. 

In  consideration  whereof  and  forasmuch  as  the  complainants  can 
have  no  adequate  remedy  at  and  by  the  strict  rules  of  the  common 
law,  and  is  relievable  only  in  a  court  of  equity  where  matters  of  this 
nature  are  properly  cognizable  and  relievable. 

To  the  end,  therefore,  that  the  Proprietors  of  the  Swan  Point  Ceme- 
tery and  Almira  T.  Metcalf  may  to  the  best  and  utmost  of  their 
respective  knowledge,  remembrance,  information  and  belief,  full, 
true,  direct  and  perfect  answer  make  to  all  and  singular  the  matters 
aforesaid  but  not  upon  oath,  the  benefit  of  which  is  hereby  expressly 
waived,  and  that  as  full  and  particularly  as  if  the  same  were  here 
repeated  and  they  and  each  of  them  distinctly  interrogated  thereto, 
and  that  the  defendant  corporation,  the  Proprietors  of  Swan  Point 
Cemetery,  be  directed  and  ordered  to  restore  and  replace  the  remains 
of  the  said  Whiting  Metcalf 'm  the  lot  from  whence  they  were  taken, 
and  that  the  said  Almira  T.  Metcalf  be  enjoined  from  interfering 

1047  Volume  5. 


6790.  DEAD  BODIES  AND  CEMETERIES.  6790. 

with  or  in  any  manner  preventing,  or  attempting  to  prevent,  said 
restoration  and  replacement,  and  be  also  perpetually  enjoined  from 
again  removing  or  intermeddling  with  said  remains. 

May  it  please  your  honors  to  grant  unto  the  complainants  a  writ 
of  subpoena  directed  to  the  Proprietors  of  Swan  Point  Ceinetery  and 
Almira  T.  Metcalfe  aforesaid,  thereby  commanding  them  and  each  of 
them  at  a  certain  time  and  under  a  certain  penalty,  therein  to  be  lim- 
ited, personally  to  appear  before  this  honorable  court  and  then  and 
there  full,  true,  direct  and  perfect  answer  make  to  all  and  singular 
the  premises,  and  further  to  stand  to  and  perform  and  abide  such 
further  order,  direction  and  decree  therein  as  to  this  honorable  court 
shall  seem  agreeable  to  equity  and  to  good  conscience. 

William  G.  Pierce. 

James  Jones.,  of  Counsel  for  Complainants. 

(  Verification,  y- 

e.  Actions  for  Damages.* 

(1)  For  Burying  Stranger  in  Plaintiff's  Plot. 

Form  No,  6790.^ 

Commonwealth  of  Massachusetts. 

Suffolk,  ss.  Superior  Court,  July  Term,  1855. 

Donnelly  ) 

against  >• 

Catholic  Cemetery  Association.  ) 

Plaintiff's  declaration. 

First  count.  And  the  plaintiff  says  that  he  is  the  owner  and  pro- 
prietor of  a  certain  burial  lot  and  grave  in  a  cemetery  in  said  Boston, 
which  said  cemetery  is  established,  occupied  and  under  the  manage- 
ment and  control  of  the  defendant  as  a  body  corporate  of  this  com- 
monwealth, subject  to  the  exclusive  right  of  the  plaintiff  to  bury  in 
said  grave  certain  persons  on  their  decease.  That  on  or  about  the 
eighth  day  oi  March,  A.  D.  \^8S,  the  said  association,  by  its  servants 
and  agents,  with  force  and  arms,  unlawfully  broke  and  entered  the 
plaintiff's  said  lot  and  grave,  the  said  lot  being  numbered  twenty,  range 
one  hundred  and  nineteen,  section /ij^ar,  and  dug  up  the  soil  of  the  same 
and  disturbed  and  removed  the  dead  bodies  of  the  plaintiff's  father 
and  child  at  that  time  and  for  a  long  time  before  buried  there,  and 
did  put  and  bury  in  said  grave  the  dead  body  and  coffin  of  a  certain 
other  person  without  the  consent  or  knowledge  of  the  plaintiff  and 
without  authority  or  justification.     And  the  plaintiff  says  that  said 

1.  As  to  the  verification  of  a  bill  in  fendani,  but  reported  the  case  for  the 
Rhode  Island  see  vol.  3,  p.  458,  note  4.  determination  of  the  full  court:  if  his 

2.  For  the  formal  parts  of  a  com-  ruling  was  correct,  judgment  to  be  en- 
plaint,  petition  or  declaration  in  a  par-  tered  on  the  verdict;  if  incorrect,  judg- 
ticular  jurisdiction  consult  the  title  ment  to  be  entered  for  the  plaintiff,  by 
Complaints,  vol.  4,  p.  1019;  Decla-  agreement  of  parties,  in  the  sum  of  two 
RATIONS.  hundred  and  fifty  dollars.     Judgment 

3.  This  form  is  copied  from  the  rec-  was  given  for  the  plaintiff,  the  court 
ord  in  the  case  of  Donnelly  v.  Boston  holding  that  the  cemetery  corporation 
Catholic  Cemetery  Assoc,  146  Mass.  was  liable  to  the  proprietor  of  a  grave 
163,  in  which  case  the  superior  court  for  the  negligent  burial  of  a  stranger 
justice  ordered    a  verdict  for   the   de-  therein.    . 

1048  Volume  5. 


6791.  DEAD  BODIES  AND  CEMETERIES,  6791. 

dead  body  of  said  other  person  was  unlawfully  kept  by  said  defend- 
ant in  said  grave  from  the  time  of  said  burial  of  the  same  until  on  or 
about  the  eighth  day  Qi  March,  i8<?4,  when  the  plaintiff  went  to  said 
cemetery  to  bury  and  to  attend  to  the  burial  of  the  body  of  his  wife 
in  said  grave,  that  he  was  accompanied  thereto  by  the  friends  and 
relatives  of  his  said  wife  and  himself;  that  because  -of  the  burial  of 
said  certain  other  person  in  plaintiff's  said  grave,  the  plaintiff,  to 
whom  such  burial  was  at  that  time  unknown,  was  greatly  hurt  and 
wounded  in  his  feelings;  the  burial  of  the  body  of  plaintiff's  wife 
delayed  for  a  long  space  of  time,  to  wit,  for  one  hour,  and  the  plaintiff 
put  to  great  mental  distress  and  suffering  thereof. 

Second  count.  And  the  plaintiff  says,  that  on  or  about  the  eighth 
day  of  March,  iS8S,  and  ever  since  that  day,  he  being  the  owner  and 
proprietor  of  a  burial  lot  and  grave  as  aforesaid,  in  said  cemetery  as 
aforesaid,  and  he  having  the  exclusive  right  to  bury  the  bodies  of 
deceased  persons  in  said  grave  or  lot  as  aforesaid,  subject  to  certain 
conditions  as  aforesaid;  the  said  defendant,  by  its  agents  and  serv- 
ants, wilfully,  negligently  and  carelessly  did  enter  in  and  upon  said 
lot  and  grave  and  did  so  dig  up  and  open  said  grave,  and  did  negli- 
gently, carelessly  and  without  authority  or  right  put  and  bury  in  said 
grave,  in  which  the  bodies  of  the  plaintiff's  deceased  father  and 
child  had  been  and  still  were  buried  for  a  long  time,  the  dead  body 
of  a  strange  person,  and  have  so  put  and  buried  said  dead  body  un- 
lawfully, negligently  and  carelessly  kept  and  continued  said  body 
buried  therein  until  on  or  about  the  eighth  day  oi  March,  i8^4»  at 
which  time  the  plaintiff,  not  knowing  of  said  unlawful  and  negligent 
acts  and  burial  as  aforesaid  and  having  lost  his  wife  and  having  pro- 
ceeded with  her  dead  body  in  company  with  certain  friends  and  rela- 
tives of  himself  and  his  said  wife  to  said  cemetery  and  said  lot  for 
the  purpose  of  her  burial  therein,  and  of  having  the  usual  funeral 
services,  the  plaintiff  then  became  informed  of  said  burial  of  said 
strange  body  in  his  said  grave  and  of  the  acts  aforesaid  of  the  de- 
fendant, its  agents  and  servants,  and  because  of  said  burial  and  find- 
ing of  said  strange  body  in  said  grave,  and  because  of  a  dispute  in 
consequence  as  to  the  ownership  of  the  plaintiff's  grave,  then  dug 
and  ready  to  receive  the  body  of  his  said  wife,  and  the  performance 
of  said  funeral  services  were  greatly  delayed,  to  wit,  for  the  space  of 
one  hour,  and  the  plaintiff  put  to  great  shame,  distress  and  mental 
suffering,  and  all  in  consequence  of  the  unlawful  and  negligent  acts 
of  the  defendant's  agents  and  servants. 

By  his  Attorney,  /.  Z.  Eldredge, 

(2)  For  Injuries  Caused  by  Poison  Ivy. 
Form  No.  6  7  9  I .' 

Supreme  Court,  Kings  County. 
Barbara  E.  George,  plaintiff,        1 

against  V  Complaint 

Cypress  Hills  Cemetery,  defendant.  ) 
The  plaintiff  above  named  complaining  of  the  defendant  alleges: 

1.  This  form  is  copied  from  the  records  in  George  v.  Cemetery  Co..  2nd  Depart- 
ment,  Appellate  Division,  N.  Y.     The  case  has  not  as  yet  been  reported. 

1049  Volume  5. 


6792.  DEAD  BODIES  AND  CEMETERIES.  6792. 

I.  Upon  information  and  belief  the  defendant  is  a  corporation  duly 
organized  under  the  laws  of  the  state  of  New  York  for  the  purpose 
of  interring  the  dead  at  a  cemetery  known  as  "  Cypress  Hills  Ceme- 
tery^* situated  partly  in  the  counties  oi  Kings  and  Queens  in  the  state 
of  New  York. 

II.  That  the  plaintiff  is  the  owner  of  a  certain  grave,  plot  or  lot 
known  as  No.  6857  in  the  portion  of  said  cemetery  known  as  Locust 
Grove,  and  the  said  lot  being  under  the  charge,  care  and  control  of 
said  defendant. 

III.  That  on  or  about  the  thirtieth  day  of  June.,  i895,  said  plaintiff 
while  lawfully  visiting  said  grave  or  plot  in  said  cemetery  and  with- 
out any  fault  or  negligence  on  her  part,  was  poisoned  by  a  certain 
shrub  or  plant  commonly  known  as  '■'■  poison  iiy,''  which  the  defendant 
had  carelessly  and  negligently  allowed  to  grow  about  said  grave  or 
plot,  and  in  consequence  of  such  poisoning  the  plaintiff  became 
sick,  sore  and  disordered,  and  suffered  severe  bodily  pain  and  anguish 
and  still  suffers  great  pain  and  anguish,  and  will  continue  so  to  do, 
and  was  prevented  from  attending  to  her  business  and  was  compelled 
to  procure  medical  attendance  and  medicine,  all  to  her  damage  ten 
thousand  dollars. 

John  A.  Anderson,  Attorney  for  Plaintiff, 

803  Washington  St.,  Brooklyn,  N.  Y. 

(3)  For  Removal  of  Body  from  Plot.^ 

Form  No.  6792.' 

Suffolk,  ss.  Superior  Court,  July  Term,  i857. 

Thomas  F.  Meagher 
vs. 

James  Driscoll. 

And  the  plaintiff  says  that  the  defendant  with  force  and  arms  took 
and  carried  away  the  goods  belonging  to  the  plaintiff,  viz.,  one  coffin, 
and  the  body  of  the  plaintiff's  child  contained  therein,  and  converted 
the  same  to  the  use  of  the  defendant,  against  the  peace  of  the  com- 
monwealth and  to  the  damage  of  the  plaintiff,  as  he  alleges,  in  the 
sum  of  three  thousand  dollars. 

And  the  plaintiff  says  he  was  owner  by  certificate  of  a  certain 
lot,  being  lot  numbered  four  in  Holyhood  Cemetery,  situate  in  the 
county  of  Norfolk,  and  of  a  right  of  burial  in  said  lot  in  said  ceme- 
tery, and  that  on  or  about  the  sixth  day  oi  December,  iS63,  he  pur- 
chased a  coffin  and  placed  therein  the  body  of  his  child  who  had  died, 
and  he  had  said  coffin  placed  in  said  lot  numbered/^z/r,  and  his  child's 

1.  See  also  Bessemer  Land,  etc.,  Co.  overruled  by  the  supreme  court._^  It 
V.  Jenkins,  iii  Ala.  135;  Smith  v.  was  held  further  that  in  measuring 
Thompson,  55  Md.  5.  damages  the  jury  may  take  into   con- 

2.  This    form    is    copied    from    the  sideration  the  injury  of  the  plaintiff's 
record  in  Meagher  v.  Driscoll,  99  Mass.  feelings,  if  it  appears  that  the  defend- 
281,  in  which  case  the  jury  returned  a  ant  acted  in  wilful  disregard  or  careless 
verdict  for  the  plaintiff,  to  which  de-  ignorance  of  the  plaintiff's  rights, 
fendant  alleged  exceptions,  which  were 

1050  Volume  5. 


6792.  DEAD  BODIES  AND  CEMETERIES.  6792. 

body  interred  therein,  and  that  the  defendant,  on  or  about  the  twenty- 
third  diSLy  oi  September,^  iS65,  wrongfully,  unlawfully  and  maliciously, 
and  without  the  knowledge  or  permission  of  the  plaintiff,  entered 
upon  said  lot  and  dug  up  the  same,  and  removed  the  body  of  the 
plaintiff's  child  and  the  coffin  containing  the  same^and  placed  the 
same  in  a  charity  grave,  and  placed  in  the  said  lot  in  which  the  plain- 
tiff then  had  the  right  of  burial  the  body  of  a  stranger. 

2.  The  plaintiff  says  that  he  is  and  was  entitled  to  a  right  of  burial 
in  lot  numbered  /our  in  Holyhood  Cemetery^  situate  in  the  county  of 
Norfolk,  and  that  he  had  placed  in  said  lot  a  coffin  containing  the 
body  of  his  child,  deceased;  that  the  defendant,  while  he,  the  plaintiff, 
was  in  possession  of  said  right  of  burial,  entered  upon  said  lot  with- 
out authority,  and  with  wicked  intent,  and  disturbed  him  in  said  right 
of  burial,  and  wickedly  and  wrongfully  dug  up  and  carried  away  his 
said  child,  and  maliciously  and  deceitfully  tried  to  conceal  from  the 
plaintiff  that  his  said  child  had  been  removed  from  said  burial  lot  and 
that  the  defendant  placed  the  plaintiff's  child  in  a  charity  grave, 
and  wickedly  tried  to  conceal  from  the  plaintiff  that  he  had  so  done, 
and  the  plaintiff  was  kept  in  ignorance  of  the  disturbance  of  his 
possession  of  said  burial  lot  and  of  the  removal  of  his  child  from  the 
same  for  a  long  time,  to  the  great  injury  of  the  plaintiff's  feelings,  as 
he  says. 

3.  The  plaintiff  further  says  that  he  owned  a  coffin,  and  that  on  or 
about  the  sixth  day  of  December,  1&6S,  he  put  the  body  of  his  child, 
deceased,  in  said  coffin  and  buried  it  in  his  own  lot,  being  lot  num- 
bered/^«r  in  the  Holyhood  Cemetery,  situate  in  the  county  of  Norfolk, 
and  that  the  defendant,  on  or  about  the  twenty-third  day  o(  September, 
1S60,  did  unlawfully,  wrongfully,  and  with  malicious  intent,  and  with- 
out the  knowledge  or  consent  of  the  plaintiff,  dig  up  and  remove  the 
coffin,  the  property  of  the  plaintiff,  containing  the  body  of  the  plain- 
tiff's child,  to  the  great  damage  and  injury  of  the  plaintiff's  feelings, 
as  he  says. 

4.  And  the  plaintiff  further  says  that  the  defendant  has  put  the 
body  of  a  stranger  into  his,  the  plaintiff's  burial  lot,  to  the  great 
damage  and  injury  of  the  plaintiff,  as  he  says. 

5.  And  the  plaintiff  further  says  that  the  defendant,  on  or  about 
the  twenty-third  da.y  oi  September,  1 8^5,  with  force  and  arms  broke 
and  entered  the  plaintiff's  close,  viz.,  a  burial  lot  numbered  four, 
situate  in  Holyhood  Cemetery,  in  the  county  of  Norfolk,  and  with  his 
feet  in  walking  trod  down,  trampled  upon,  consumed  and  spoiled  the 
grass  and  herbage  of  the  plaintiff  then  and  there  growing  and  being 
of  great  value,  and  with  the  implements  for  digging,  dug  up  the  earth; 
and  heaped  the  earth  upon  the  grass  and  herbage  then  and  there 
growing,  and  being  of  great  value,  to  the  great  injury  of  the  same; 
and  other  wrongs  to  the  plaintiff  then  and  there  did  against  the  peace 
and  to  the  great  damage  of  the  plaintiff,  as  he  says. 

R.  D.  Smith, 
W.  Emery, 

Attorneys  for  Plaintifif. 

1051  Volumes. 


6793.  DEAD  BODIES  AND  CEMETERIES.  6798. 

f.  By  Holders  of  Cemetery  Bonds  to  Compel  Accounting. 

Form  No.  6793.' 

Supreme  Court,  Broome  County,  New  York. 
Martha  E.  Seymour 
against 
The  Spring  Forest   Cemetery  Association, 

Erasmus  D.  Robinsofiy  Tracy  R.  Morgan, 

Job     N.     Congdon,     Benjamin     Devoe, 

Edward B.  Stephens,  Alonzo  C.  Matthews, 

Harris  G.  Rodger s,  Robert  Brown,  Cyrus 

Strong. 

The  above  named  plaintiff,  complaining  of  the  above  named 
defendants,  says: 

That  the  defendant,  The  Spring  Forest  Cemetery  Association,  is  a  cor- 
poration duly  organized  under  the  laws  of  the  state  of  New  York; 
that  as  such  corporation  it  duly,  and  to  pay  for  lands  purchased  by 
it,  issued  bonds  or  certificates  of  indebtedness  in  the  aggregate 
amount  of  twenty-one  thousand do\\a.rs,  as  follows:  One  bond  (without 
having  any  number),  bearing  date  March  13,  i2>55,  in  the  penal  sum 
of  six  thousand  dollars,  conditioned  for  the  payment  of  three  thousand 
dollars,  with  interest,  to  Tracy  R.  Morgan,  or  to  his  attorney,  execu- 
tor, administrator  or  assigns;  that  the  full  text  of  said  bond  is  as  fol- 
lows: {Here  was  set  out  a  copy  of  bond  and  a  list  of  bonds  nufnbered  from 
2  to  28  inclusive,  payable  and  conditioned  in  the  same  manner.^  Plaintiff 
further  says  that  no  other  bonds  were  issued  by  said  The  Spring 
Forest  Cetnetery  Association. 

Plaintiff  further  says  that  she  is  the  owner  and  holder  of  all  said 
bonds,  and  entitled  to  all  the  moneys  and  rights  secured  by  said 
bonds. 

Plaintiff  further  says  that  since  the  first  day  oi  July,  iS78,  no 
account  has  been  rendered  to  the  holders  of  said  bonds  of  the  income 
and  receipts  of  the  said  The  Spring  Forest  Cemetery  Association,  appli- 
cable to  the  payment  of  said  bonds,  and  no  account  has  been  ren- 
dered to  the  holders  of  said  bonds  since  the  frst  day  oi  July,  i878, 
of  the  receipts  of  the  said  The  Spring  Forest  Cemetery  Association,  so 
that  the  amount  properly  applicable  to  said  bonds  can  be  obtained; 
and  that  demand  has  often  been  made  of  said  The  Spring  Forest  Ceme- 
tery Association,  and  of  its  officers,  in  behalf  of  the  owners  and  hold- 
ers of  said  bonds,  for  an  account  of  the  said  receipts,  and  such 
demands  have  all  been  refused. 

Plaintiff  further  says  that  the  defendants,  Erasmus  D.  Robinson, 
Tracy  R.  Morgan,  Job  N.  Congdon,  Benjamin  Devoe,  Edward  B. 
Stephens,  Alonzo  C.  Matthews,  Harris  G.  Rodger s,  Robert  Brown  and 
Cyrus  Strong,  claim  to  be  and  are  acting  as  trustees  of  the  said  The 
Spring  Forest  Cemetery  Association;  that  they  have  the  custody  of  all 
the  money  and  property  of  the  said  The  Spring  Forest  Cemetery  Asso- 
ciation; that   the  number  of  the  trustees  of  the  said  association,  as 

1.  This  complaint  is  copied  from  the  records  in  the  case  of  Seymour  v.  Spring 
Forest  Cemetery  Assoc,  144  N,  Y.  333. 

1053  Volume  5. 


6794.  DEAD  BODIES  AND  CEMETERIES.  6794. 

provided  by  law,  is  nine;  that  only  a  very  small  portion  of  the  moneys 
received  by  the  said  'The  Spring  Forest  Cemetery  Association  has  been 
paid  on  said  bonds  since  the/r^/  day  ol  July,  i87<?;  that  a  large 
amount  of  money,  but  what  amount  plaintiff  is  unable  to  state, 
further  than  that  it  is  between  five  thousand  and  twenty-five  thousand 
dollars,  at  the  time  this  complaint  is  made,  has  been  received  by 
the  defendants,  which  is  applicable  and  should  be  applied  to  said 
bonds;  that  said  defendants  neglect  and  refuse  to  make  any  account 
whatever,  refuse  to  recognize  the  validity  of  said  bonds,  and  refuse 
to  make  any  payment  on  said  bonds,  although  such  account  and  pay- 
ment have  often  been  demanded  by  the  holders  and  owners  of  said 
bonds. 

Wherefore  plaintiff  demands  judgment  in  her  favor  for  an  account- 
ing by  the  defendants  of  all  the  receipts  of  said  The  Spring  Forest 
Cemetery  Association  since  iht  first  day  of  July,  iS78,  that  the  amount 
applicable  to  said  bonds  may  be  ascertained,  deducting  all  payments 
made  on  said  bonds  since  the  first  dsiy  oi  July,  iS78,  and  that  plain- 
tiff be  paid  the  net  amount  applicable  on  said  bonds,  with  interest 
on  the  sums  withheld  from  the  time  the  payments  withheld  should 
have  been  applied;  and  the  plaintiff  further  demands  that  the  defend- 
ants Erasmus  D.  Robinson,  Tracy  R.  Morgan,  Job  JV.  Congdon,  Ben- 
jamin Devoe,  Edward  B.  Stephens,  Alonzo  C.  Matthews,  Harris  G. 
Rodgers,  Robert  Brown  and  Cyrus  Strong  be  held  personally  liable  for 
the  payments  so  withheld,  and  be  adjudged  to  pay  the  same;  and 
plaintiff  asks  for  such  other  and  further  relief  as  shall  be  just,  with 
costs  of  suit. 

Edward  K.  Clark, 
Plaintiff's  Attorney,  Binghamton,  N.  Y. 

(  Verification.^- 

II.  ACTION  FOR  PERFORMING  AUTOPSY  WITHOUT  PERMISSION. 

Form  No.  6794.* 

Commonwealth  of  Massachusetts. 
Suffolk,  ss.  .In  the  Superior  Court, 

September  Term,  a.  d.  iS97. 
Samuel  C.  Burney  ) 

V.  >•  Plaintiff's  Declaration. 

The  Children's  Hospital  in  Boston.  ) 

And  the  plaintiff  says  that  on  the  ninth  day  of  July,  in  the  year  of 
our  Lord  one  thousand  eight  hundred  and  ninety-six,  he  was  the  law- 
ful father  and  natural  guardian  of  an  infant  child  named  Charles  H. 
Burney,  and  by  reason  thereof  was  the  custodian  of  the  person  and 
body  of  said  child,  and  had  and  exercised  control  of  the  will  and 
movements  of  said  child  and  that  said  child  was  then  and  there  m 
his  legal  possession;  and  the  plaintiff  says  that  he  then  and  there 

1.  For  the  form  of  verification  in  a  2.  This  form  is  copied  from  the  rec- 
particular  jurisdiction  consult  the  title  ord  in  Burney  r  Children  s  Hospital, 
Verifications.  169  Mass.  57.  >n  which  case  the  declara- 

tion  was  held  sufficient  on  demurrer. 
1053  Volume  5. 


6794.  DEAD  BODIES  AND  CEMETERIES.  6794. 

delivered  said  child  to  the  defendant  in  the  trust  and  confidence 
and  upon  the  promises  of  the  defendant  that  it  would  endeavor  to 
alleviate  a  condition  of  body  in  said  child  known  as  hernia,  and  he 
delivered  said  child  to  the  defendant  for  no  other  purpose  than  as 
aforesaid;  and  while  said  child  was  in  the  possession  and  custody  of 
the  defendant  said  child  died;  and  thereupon  it  became  and  was  the 
duty  of  the  defendant  to  deliver  the  body  of  said  child  to  the  plain- 
tiff in  the  same  condition  in  which  it  then  was,  to  be  by  the  plaintiff 
properly  and  decently  buried;  yet  the  defendant,  unmindful  of  said 
duty,  wilfully,  fraudulently,  without  the  authority  and  against  the 
wishes  of  the  plaintiff,  but  in  violation  and  in  disregard  thereof  and 
apart  from  its  promise  as  aforesaid,  and  trespassing  upon  the 
rights  of  plaintiff  as  custodian  of  the  body  and  person  of  the  said 
child  as  hereinbefore  set  forth,  and  outraging  said  body  and  also  the 
plaintiff,  and  against,  as  well,  the  good  morals  and  the  peace  of  the 
community,  did  upon  the  deceased  body  of  said  child,  make  and 
cause  to  be  made,  a  surgical  operation  or  dissection,  and  said  body 
did,  with  sharp  instruments,  cruelly,  outrageously  and  sacrilegiously 
cut,  open,  hack,  tear  and  disfigure,  and  the  head  and  neck  so-called 
commonly  and  parts  thereof  did  cut  into  and  displace,  and  remove 
and  take  away;  thereby  causing  said  body  prematurely  to  decay  and 
rendering  the  same  unfit  to  be  embalmed,  as  plaintiff  had  prepared 
and  contracted  to  have  done  to  said  body;  and  by  reason  of  the 
wrongful  acts  of  the  defendant  as  herein  set  forth,  the  plaintiff  was 
greatly  injured  in  his  feelings  and  was  compelled  to  bury  said  child 
with  indecent  haste,  and  to  fix  an  earlier  and  an  unsuitable  day  and 
hour  than  that  first  by  him  announced  to  the  relatives  and  friends 
of  the  plaintiff  for  the  funeral  and  religious  rites  and  ceremonies, 
upon  said  body  to  be  performed,  and  was  otherwise  greatly  outraged 
in  his  feelings  and  caused  great  pain  of  mind. 

Second  count.  And  the  plaintiff  says  that  he  was  the  father  and 
natural  guardian  of  an  infant  child  named  Charles  H.  Biiriiey.,  and 
was  the  lawful  custodian  of  said  child,  and  on  the  ninth  day 
of  July.,  A.  D.  i8P5,  said  child  was  in  his  legal  possession;  and 
on  said  day  said  child  was  suffering  from  a  condition  of  body 
called  hernia;  and  he  delivered  said  child  to  the  defendant  and 
said  defendant  took  said  child  for  the  sole  purpose  of  alleviating  said 
condition  of  body;  and  while  said  child  was  so  in  the  custody  of  the  de- 
fendant for  the  purpose  of  being  treated  for  hernia,  on  the  afternoon 
of  said  day  said  child  died;  and  thereupon  it  became  and  was  the 
duty  of  the  defendant  to  deliver  the  body  of  said  child  to  the  plain- 
tiff in  the  same  condition  in  which  it  then  was  to  be  by  said  plaintiff 
decently  and  properly  buried;  yet  the  defendant,  unmindful  of  its 
duty  in  this  behalf,  refused  to  deliver  said  body  to  the  plaintiff,  and 
on  the  morning  following  wilfully,  fraudulently  and  against  the  con- 
sent of  the  plaintiff  did  upon  the  deceased  body  of  said  child  make 
and  cause  to  be  made  a  surgical  operation  or  dissection,  and  said 
body  did,  with  sharp  instruments,  cruelly,  outrageously  and  sacri- 
legiously cut,  open,  hack,  tear  and  disfigure,  and  the  head  and  neck 
so-called  commonly  and  parts  thereof  did  cut  into  and  displace  and 
remove  and  take  away;  thereby  causing  said  body  prematurely  to 

1054  Volume  5. 


6795.  DEAD  BODIES  AND  CEMETERIES.  6795. 

decay  and  rendering  the  same  unfit  to  be  embalmed,  as  plaintiff 
had  prepared  and  contracted  to  have  done  to  said  body;  and  by  rea- 
son of  the  wrongful  acts  of  the  defendant,  as  herein  set  forth  the 
plaintiff  was  greatly  injured  in  his  feelings  and  was  compelled  to  bury 
said  child  with  indecent  haste,  and  to  fix  an  earlier  and  an  unsuitable 
day  and  hour  than  that  first  announced  by  him  to  the  relatives  and 
friends  of  the  plaintiff  for  the  funeral  and  religious  rites  and  cere- 
monies upon  said  body  to  be  performed,  and  was  otherwise  greatly 
outraged  in  his  feelings  and  caused  great  pain  of  mind. 

And  the  plaintiff  says  that  both  counts  are  for  one  and  the  same 
cause  of  action. 

Samuel  C.  Burney, 
By  Ealph  W.  Gloag,  his  Attorney. 

Form  No.  6795.* 

Supreme  Court,  New  York  County. 

Ann  A.  Foley,  plaintiff,  ) 

vs.  C  Complaint. 

Charles  Phelps,  defendant.  ) 

The  plaintiff  complains  of  defendant  and  for  cause  of  action  alleges, 

I.  That  on  or  about  the  sixteenth  day  of  May,  \%9J^,  in  the  city  oi New 
York,  Thomas  F.  Foley,  who  was  at  said  time  the  husband  of  the  plain- 
tiff, fell  through  an  elevator  shaft  at  the  Windsor  Flat,  No.  1700 
Broadway,  New  York  City,  from  the  effects  of  which  his  ribs  on  the 
left  side  were  broken,  and  he  was  otherwise  greatly  injured  by  the 
shock  and  fall. 

II.  That  thereupon,  without  plaintiff's  knowledge  or  consent,  he 
was  immediately  carried  to  Bellevue  Hospital,  Neiv  York  City,  in  an 
unconscious  condition,  and  within  three  hours  thereafter,  from  the 
effects  of  said  fall,  he  died  intestate,  and  without  having  given  the 
right  to  perform  an  autopsy  on  his  body  after  his  death. 

III.  That  at  the  time  of  said  death  plaintiff,  who  was  a  devoted 
and  loving  wife,  and  upon  whom  the  legal  duty  and  right  of  burying 
her  said  husband  devolved,  was  present  and  claimed  and  demanded 
his  body,  and  begged  and  implored  those  who  were  in  charge  of  it  at 
said  hospital  not  to  allow  or  permit  an  autopsy  to  be  performed  on 
it,  and  gave  them  notice  that  she  would  immediately  send  an  under- 

1.  This  form  is  copied  from  the  record  to  the  case  of  a  patient  who  dies,  as  this 

in  Foley  v.  Phelps,  i  N.  Y.  App.  Div.  plaintiff's  husband  did,  in  one  of  the 

551.     The  defendant  demurred  to  the  hospitals  of  the  state.     The  act  of  1854 

complaint  upon  the  following  grounds,  (chap.   123)   **  *   expressly   prohibits 

to  wit:  the   dissection  of  a  dead  body,  or  its 

I.    That   the  plaintiff   has  not  legal  delivery  to  any  one  for  the  purposes  of 

capacity  to  sue.    2.  That  the  complaint  dissection,  if  the  relatives  and  friends  of 

does  not  state  facts  sufficient  to  consti-  the  deceased  object,    or  if  they  make 

tute  a  cause  of  action.  application   within   a  certain    time  (as 

In  overruling  the  demurrer  the  court  appears  to  have  been  done  in  this  case) 

says:    "  The  unauthorized  dissection  of  for  the   remains   for   the    purpose    of 

human  remains  is  a  misdemeanor  under  burial." 

the  provisions  of  sections  308  and  309        The  decision  of  the  special  termover- 

of  the  Penal  Code  of  this  slate.    *  ♦  *  ruling  the   demurrer  was  affirmed  on 

.  There  is  a  statute  specially  applicable  appeal. 

1055  Volume  5. 


6796.  DEAD  BODIES  AND  CEMETERIES.  6796. 

taker  for  the  body,  who  would  remove  it  to  her  home  and  properly 
prepare  it  for  burial,  under  her  directions. 

IV.  But  that  notwithstanding  said  facts,  and  her  protestations  and 
legal  rights  in  the  premises,  the  defendant,  without  her  knowledge  or 
consent,  procured,  assisted,  aided  and  abetted  in  performing  an 
autopsy  on  her  said  husband's  body,  which  said  autopsy  was  per- 
formed without  any  authority  of  law  and  was  wilfully,  negligently 
and  carelessly  performed  by  dissecting  and  cutting  open,  mutilating 
and  otherwise  abusing  and  maltreating  said  dead  body  of  Thomas  F. 
Foley. 

V.  That  by  reason  of  said  acts  the  right  of  the  plaintiff,  who  was 
a  lawful,  loving  and  devoted  wife  of  said  Thomas  F.  Foley ^  has  been 
recklessly  and  wilfully  disregarded  and  her  feelings  cruelly  lacerated, 
and  the  devotion,  love  and  respect  that  the  plaintiff  entertained  for 
her  said  husband,  has  been  shocked  and  wounded  and  the  plaintiff 
has  suffered  greatly  therefrom,  both  in  body  and  mind,  to  her  damages 
to  wit,  in  the  sum  of  ten  thousand  dollars. 

Wherefore,  she  prays  judgment  against  the  defendant  for  the  sum 
of  ten  thousafid  dollars  (%10,00G),  together  with  the  costs  and  dis- 
bursements. 

De  Witt  &-  Tabor, 

Attorneys  for  the  Plaintiff, 

Office  and  P.  O.  address,  206  Broadway,  New  York  City. 

III.  CRIMINAL  PROSECUTIONS.! 
1.  For  Failure  to  Bury  Dead  Body. 

1.  For  the  fonnal  parts  of  an  indict-  Minnesota. — Stat.    (1894),    g§    6562- 

ment,    information   or   criminal    com-  6567. 

plaint     in     a    particular     jurisdiction  Mississippi. —  Anno.    Code  (1892),   §§ 

consult  the  titles  Indictments;  Infor-  1023-1025. 

nations;  Criminal  Complaints,    ante,  Missouri.  —  Rev.  Stat.  (1889),  §§  3842- 

p.  930.  3845- 

For  statutes  relating  to  the  subject  of  Montana.  —  Pen.  Code  (1895),  §§  510- 

dead  bodies  see  as  follows:  515. 

Alabama. — Crim.     Code     (1886),    §§  Nebraska. — Comp.  Stat.  (1897),  §6915. 

4023-4027.  Nevada. — Gen.  Stat.  (1885),  §  4870. 

Arizona.  —  Pen.  Code.  (1887),  §§491-  New  Hampshire.  —  Pub.   Stat.  (1891), 

497.  c.  266,  §  7. 

Arkansas.  —  Sand.   &  H.   Dig.  (1894),  New  Jersey. — Gen.  StatS.   (1895),    p. 

|§  1923-1927.  357.  §  45. 

California. —  Pen.  Code (1897),  §§  290-  New  York]  —  Birds.  Rev.  Stat.  (1896), 

297.  p.  320,  §  I  etseq.,   p.  882,  §  I  et  seq. 

Colorado.  —  Mills' Anno.  Stat.  (1891),  North  Dakota.  —  Rev.  Codes  (1895),  §§ 

{|  1367.  7188-7202. 

Florida.  —  Rev.  Stat.    (1891),  §  2625.  Ohio.  —  Bates'  Anno.    Stat.  (1897),  §§ 

Illinois.  —  Starr    &    C.    Anno.    Stat.  7034,  7034a,  7035. 

(1896),  p.  1306,  par.  270.  Oklahoma. —  Stat.  (1893),  §§  2188-2202, 

Indiana.  —  Horner's    Stat.  (1896),    §§  2489. 

2166-2168.  Pennsylvania.  —  Pepp.     &    L.     Dig. 

Iowa.  — Code  (1897),  §  4946.  (1894),  p.  1161,  §  156. 

Kansas.  —  2  Gen.  Stat.  (1897),  p.    341,  Rhode  Island.  —  Gen.  Laws  (1896),    c. 

§§  252-254.  257,  §  2;  c.  281.  §  21. 

Kentucky. —  Stat.   (1894),  §  1335.  Tennessee.  —Code    (1896),    §§    6771- 

Maryland.  —  Pub.    Gen.  Laws  (1888),  6774. 

p.  505,  §  133.  Texas.  —  Pen.  Code  (1895),  art.  367. 

1056  Volume  5. 


6796.  DEAD  BODIES  AND  CEMETERIES.  ^1^1, 

Form  No.  6796.' 
In  the  District  Court  of  the  First  Judicial  District  of  the  Territory 

QOP     ''"'"'   '"  ^'^^  ^^^  ^^^  County  of  ^ma,  the  second  ^^y  oi  June 
1 000.  ' 

Territory  of  Arizona 

against 

John  Doe  is  accused  by  the  district  attorney  by  this  information  of 
the  crime  of  fading  to  bury  a  dead  body,  committed  as  follows:  The 
s^x^  John  Doe,  on  the /r^/ day  oi  April,  a.  d.  \%98,  at  the  county  of 
Ftfna  aforesaid,  was  a  person  upon  whom  was  imposed  by  law  the 
duty  of  making  burial  of  the  remains  of  a  deceased  person,  to  wit, 
Sarah  Doe,  the  wife  of  the  said/tf/4«  Doe,  who  died  on  the  said/ry/ 
day  of  ^/r//,  a.  d.  \?>98,  and  he  the  ssiid  John  Doe  unlawfully  neg- 
lected to  perform  said  duty  within  a  reasonable  time,  but  kept  said 
remains  unburied  until  the  twentieth  day  oi  April,  a.  d.  \W8. 

Daniel  Webster,  District  Attorney. 

2.  For  Removing  Body.^ 

Form  No.  6797. 

(Precedent  in  People  v.  Dalton,  58  Cal.  226.)' 

[In  the  Superior  Court  of  the  City  and  Connty  of  San  Francisco,  State 
of  California,  Monday,  the  third  ^a.y  of  February,  188O. 
The  People  of  the  State  of  California  i 

against  V  Indictment. 

Eugene  Dalton.  ) 

Eugene  Dalton  is  accused  by  the  grand  jury  of  the  city  and  county 
of  San  Francisco,  state  of  California,  by  this  indictment  of  the  crime 

Utah.  —  Rev.    Stat.   (1898),   §§  4230,  averred  it  need  not  be  proved.     Com. 

4231.  V.  Cooley,  10  Pick.  (Mass.)  37. 

Vermont.  —  Stat.  (1894),  §  5004.  1.  Arizona.  —  Pen.  Code (1887),  §  494. 

Was  h  i  ngto  n.  —  Ballinger's  Anno.  California.  —  Pen.  Code  (1897),  |  293. 

Codes  &  Stat.  (1897),  §  7248.  Montana.—  Pen.  Code  (1895),  S  513. 

West  Virginia.  — Code  (1891),  c.  149,  North  Dakota.  —  Rev.  Codes  (1895),  ^ 

g  13.  7196. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat.  2.  Alabam*.  —  The  form  given  in  Ala. 

(1889),  §  4592,  p.  2309.  Crim.  Code(r886),  p.  275,  No.  71,  drawn 

Wyoming.  —  Rev.  Stat.  (1887),  §  1029.  under  section  4023  of  the  Code,  charges 

Knst  Follow  Statute.  —  The  indictment  the  offense  as  follows:  ''fohnDoe  re- 
in charging  the  offense  must  strictly  moved  from  the  grave  the  dead  body 
follow  the  statute;  thus  where  the  stat-  of  Samuel  Short  from  wantonness,  or 
ute  makes  it  an  offense  only  where  the  for  the  purpose  of  dissection  or  sale." 
removalis  with  the  intent  to  sell  or  dis-  3.  It  was  held  that  this  indictment 
sect  the  same,  such  an  intent  must  be  sufficiently  designated  and  described 
averred  and  proved.  Com.  v.  Slack,  19  the  offense,  and  that  a  demurrer  thereto 
Pick.  (Mass.)  304;  State  v.  Fox,  136  was  improperly  sustained.  See  Cal. 
Mo.  141.  Pen.   Code  (1897),  §  290.  and  statutes 

Ownership. —  It    is     unnecessary     to  cited  j«/>ra,  note  1,  p.  1056, 

aver  the  ownership  of  the  cemetery  from  See  also  the  first  count  to  Form  No. 

which   the    body   is    removed,   and    if  6801,  infra. 

'^         5  E.  of  F.  P.—  67.                        1057  Volume  5. 


6798.  DEAD  BODIES  AND  CEMETERIES.  6798. 

of]^  violating  sepulture,  committed  as  follows:  The  said  Eugene  Dal- 
ton,  on  the  8ih  day  oi  July,  a,  d.  i875,  at  the  City  and  County  of  San 
Erancisco,  without  authority  of  law,  disinterred  and  removed  from 
his  place  of  sepulture,  at  laurel  Hill  Cemetery,  in  said  City  and 
County  of  San  Francisco,  the  dead  body  of  the  late  Elias  Lipsis,  a 
human  being,  the  said  dead  body  not  being  the  dead  body  of  a  rela- 
tive or  friend  of  the  said  Eugene  Dalton  removed  for  reinterment, 
contrary  [to  the  form,  force  and  effect  of  the  statute  in  such  case 
made  and  provided  and  against  the  peace  and  dignity  of  the  people 
of  the  state  of  California. 

D.  L.  Smooty  District  Attorney.]^ 

3.  For  Stealing  Body, 
a.  For  Purpose  of  Dissection.^ 

Form  No.  6798.^ 

Commonwealth  of  Massachusetts. 
Essex,  to  wit:  At  the  Superior  Court,  begun  and  holden  at  the  city 
of  Salem,  within  and  for  the  county  of  Essex,  for  the  transaction  of 
criminal  business,  on  tht.  first  Monday  of  November,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-seven,  the  jurors  for  the 
commonwealth  oi  Massachusetts  on  their  oath  present:  that  Richard  Roe 
and  Richard  Fen,  both  of  Saugus,  in  said  county,  on  the  first  day  of 
October,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
ninety-seven,  at  Saugus,  in  the  county  of  Essex,  with  force  and  arms,  the 
common  burying-ground  there  situate,*  being  known  as  the  Granary 
Burying-ground,  unlawfully  and  wilfully  did  break  and  enter,  and  a 
grave  there,  in  which  a  certain  human  body,  to  wit,  the  body  of  one 
John  Smith,  had  lately  before  been  interred,  and  then  was,  then  and 
there  unlawfully  and  wilfully  did  open,  and  the  body  of  the  said  John 
Smith  then  and  there  in  the  grave  aforesaid  being,  then  and  there 
unlawfully  and  wilfully  did  dig  up  and  disinter,  remove  and  convey 
away  from  and  out  of  the  grave  aforesaid,  the  said  Richard  Roe  and 
Richard  Fen  then  and  there  intending  to  use  and  dispose  of  the  said 
body  for  the  purpose  of  dissection;*  the  said  Richard  Roe  diVid  Richard 
Fen  not  being  then  and  there  authorized  so  to  do,  either  by  the  board 
of  health,  or  the  overseers  of  the  poor,  or  the  directors  of  the  work- 
house, or  the  selectmen  of  the  said  town  of  Saugus,  in  which  the  said 
grave  and  the  burying-ground  aforesaid  was  and  is  situate;^  against 
the  peace  of  said  commonwealth  and  contrary  to  the  form  of  the  statute 
in  such  case  made  and  provided. 

Daniel  Webster,  District  Attorney. 

1.  The  words  and  figures  enclosed  by  whom   the   burying-ground   belonged. 
[  ]  will  not  be   found  in    the   reported  Com.  v.  Cooley,  10  Pick.  (Mass.)  37. 
case,  but   have  been   added   to  render  5.  This    is    a    necessary    averment, 
the  form  complete.  Com.  v.  Slack,  19  Pick.  (Mass.    304. 

2.  See  also  the  second  count  of  Form  6.  It  is  sufficient  to  aver  that  the  de- 
No.  6801,  infra.  fendants    were    not  authorized  by  the 

3.  Massachusetts.  —  Pub.  Stat.  (1882),  selectmen,  overseers,  etc.,  of  the  town 
c.  207,  ^  47.  where   the  body  was  buried.     Com.  v. 

4.  It   is   not  necessary   to  allege  to  Loring,  8  Pick.  (Mass.)  370. 

1058  Volume  5. 


6799.  DEAD  BODIES  AND  CEMETERIES.  6800. 

Form  No.  6799.' 

Supreme  Court,  Chemung  County. 
The  People  of  the  State  of  New  York^ 

against 

Eucebia  Fitzgerald^  Edmund  A.  Reilly 

and  f.   Thomas  Nealson. 

The  grand  jury  of  Chemung  county  by  this  indictment  accuse 
Eucebia  Fitzgerald,  Edmund  A.  Reilly  and  J.  Thomas  Nealson  of  the 
crime  of  body  stealing,  committed  as  follows:  That  said  Eucebia 
Fitzgerald,  Edmund  A.  Reilly  and  J.  Thomas  Nealson,  on  the  ninth  day 
of  April,  iS85,  at  the  city  of  Elmira,  in  the  county  of  Chemung,  with 
force  and  arms,  unlawfully  and  feloniously  did  remove  the  dead  body 
of  a  human  being,  to  wit,  that  of  William  Irvine,  from  a  grave  or 
place  where  the  same  had  been  buried,  without  authority  of  law,  for 
the  purpose  of  dissection,  for  procuring  the  reward  for  the  return  of 
same  and  for  the  purpose  of  malice  and  wantonness,  against  the  form 
of  the  statute  in  such  case  made  and  provided. 

William  H.  Smith,  District  Attorney. 

b.  Fop  Purpose  of  Selling.' 

Form  No.   6800. 

(Precedent  in  State  v.  Fox,  136  Mo.  141.)' 

[State  of  Missouri,     \  In  the  Chariton  Circuit  Court, 

County  of  Chariton.  \     '     June  term,  i8P5.]* 

The  grand  jurors  for  the  state  of  Missouri,  chosen,  selected  and 
summoned  from  the  body  of  the  county  of  Chariton,  in  the  state  of 
Missouri,  and  impaneled,  sw^orn,  and  charged  to  inquire  within  and 
for  the  body  of  the  said  county  of  Chariton,  upon  their  oath  do  charge 
and  present  that  one  James  R.  Fox,  on  or  about  the  seventh  day  of 
March,  a.  d.  i 855,  at  the  county  of  Chariton,  in  the  state  oi  Missou ri, 
did  then  and  there  unlawfully  and  feloniously  dig  up  and  disinter 
and  remove  the  dead  body  and  remains  of  one  Leona  Gates,  deceased, 
from  the  grave  in  which  said  body  and  remains  had  before  been 
interred,  and  then  and  there  was,  for  the  purpose  of  selling  the  said 
dead  body  and  remains,  against  the  peace  and  dignity  of  the  state. 

*  ♦  *5  And  the  grand  jurors  aforesaid,  upon  their  oaths  aforesaid, 

1,  This  form  is  substantially  the  in-  of  selling  the  corpse.  The  indictment 
dictment  in  the  case  of  People  v.  Fitz-  was  drawn  under  Mo.  Rev.  Stat.  (1889), 
gerald,  43  Hun  (N.  Y.)  35,  in  which  §  3842.  See  also  list  of  statutes  cited 
case  the  conviction  was  afterward  re-  supra,  note  i,  p.  1056. 

versed    by   the   court   of   appeals   (155  4.  The  words  and  figures  enclosed  by 

N.  Y.  151),  although  the  indictment  as  [\  will  not  be   found  in  the  reported 

to  form  is  good.     See  N.  Y.  Pen.  Code,  case,  but  have  been  added   to   render 

§  311  (Birds.   Rev.   Stat.  (1896),  p.  321,  the  form  complete. 

§  4).  6.  A  demurrer   was   sustained    to  a 

2.  See  also  the  third  count  of  Form  further  count  in  this  indictment,  which 
No.  6801,  infra.  was  as  follows: 

8.  It  was  held  in  this  case  that  a  con-  "And  the  grand  jurors  aforesaid, 
viction  could  not  be  sustained,  for  the  upon  their  oaths  aforesaid,  do  further 
evidence,  although  showing  the  disin-  present  and  charge  that  one  fames  R. 
terment,  failed  to  disclose  any  intention     Fox,   on   or   about   the  t^oelfth  day   of 

1069  Volume  5. 


6801.  DEAD  BODIES  AND  CEMETERIES.  6801. 

do  further  charge  and  present  that  the  said  James  R.  Eox,  on  or 
about  the  twelfth  day  of  March,  a.  d.  \2,95,  at  and  in  the  county  of 
Chariton,  in  the  state  of  Missouri,  did  then  and  there  unlawfully  and 
feloniously  dig  up,  and  disinter  and  remove  the  dead  body  and 
remains  of  a  human  being,  to  wit,  the  dead  body  and  remains  of  one 
Leona  Gates,  deceased,  from  the  grave  in  which  said  body  and  remains 
had  then  before  been  interred,  and  then  and  there  was,  from  mere 
wantonness  and  mischief,  against  the  peace  and  dignity  of  the  state, 
[Solomon  Sayers,  Prosecuting  Attorney 

for  the  County  of  Chariton.^  ^ 

4.  Fop  Receiving  Stolen  Body. 

Form  No.  6  8  o  i . 

(Precedent  in  People  v.  Graves,  5  Park.  Cr.  Rep.  (N.  Y.  Supreme  Ct.)  135.)* 

State  of  Neiv  York,  Ontario  County,  ss. 

The  jurors  for  the  People  of  the  State  of  New  York,  and  for  the 
body  of  the  county  of  Ontario,  to  wit,  Jonas  M.  Wheeler  (^Here  fol- 
low names  of  the  grand  jurors'),  being  sworn  and  charged  to  inquire 
for  the  People  of  the  said  State  and  for  the  body  of  the  county  afore- 
said, upon  their  oath,  present  that  John  C.  Weed,  Alanson  R.  Simmons 
and  Judson  H.  Graves,  late  of  the  town  of  Bristol,  in  the  county  afore- 
said, on  the  1st  day  oi  June,  iS58,  with  force  and  arms,  at  the  town 
of  Bristol,  in  the  county  aforesaid,  a  graveyard  situated  in  the  said 
town  of  Bristol,  county  of  Ontario  aforesaid,  did  enter,  and  the  grave 
therein  in  which  the  body  of  one  Martha  J.  Brockeldank,  deceased, 
had  lately  before  then  been  interred,  and  then  was,  with  force  and 
arms  unlawfully,  voluntarily,  willfully  and  indecently  did  dig,  open 
and  afterward,  to  wit:  on  the  same  day  and  year  aforesaid,  with  force 
and  arms  at  the  town  of  Bristol,  in  the  county  aforesaid,  the  dead 
body  of  her,  the  said  Martha  J.  Brockelbank,  out  of  the  grave  afore- 
-said,  unlawfully,  feloniously  and  indecently  did  take  and  carry  away, 
against  the  form  of  the  statute  in  such  case  made  and  provided  and 
against  the  People  of  the  State  of  New  York  and  their  dignity. 

And  the  jurors  aforesaid  upon  their  oath  aforesaid  do  further 
present  that  the  said  John  C.  Weed,  Alanson  R.  Simmons  and  Judson 
H.  Graves,  on  the  day  and  year  last  aforesaid,  and  at  the  town, 
county  and  state  aforesaid,  a  graveyard  situated  in  the  said  town  of 
Bristol  zxiA  county  aforesaid,  did  enter  and  the  grave  in  which  the 

March,   A.   D.    iS^j",   at   the    county  of  of  said  dead  body  and  remains,  against 

Chariton  in  the  state  of  Missouri,   did  the  peace  and  dignity  of  the  state." 

then  and  there  unlawfully  and  feloni-  1.  The  words  and  figures  enclosed  by 

ously  dig  up,  disinter  and  remove  the  [  ]  will   not  be  found  in  the  reported 

dead   body  and   remains  of  a  human  case,   but  have  been  added  to  render 

being,   to  wit,  the  dead  body  and   re-  the  form  complete. 

mains  of  one  Leona  Gates,  from  the  2.  The  third  count  only  of  this  in- 
grave  in  which  the  said  dead  body  and  dictment  is  for  receiving  a  stolen  body; 
remains  had  then  before  been  interred  the  first  is  for  stealing  generally,  the 
and  then  and  there  was,  for  the  pur-  second  for  stealing  for  the  purpose 
pose  of  dissection  and  surgical  and  of  dissection,  and  the  third  for  stealing 
anatomical  experiment  and  preparation  for  the  purpose  of  sale. 

1060  Volume  5. 


6802.  DEAD  BODIES  AND  CEMEIEKIES.  6802. 

body  of  one  Martha  J.  Brockelbank,  deceased,  had  lately  before  then 
been  interred,  and  then  was,  with  force  and  arms,  unlawfully,  volun- 
tarily, willfully,  feloniously  and  indecently,  did  dig,  open  and  after- 
ward, to  wit:  on  the  same  day  and  year  aforesaid,  with  force  and 
arms  at  the  town  of  Bristol  in  the  county  and  state  aforesaid,  the 
dead  body  of  her,  the  said  Martha  J.  Brockelbank,  out  of  the  grave 
aforesaid,  unlawfully,  feloniously  and  indecently  did  take,  remove 
and  carry  away  for  the  purpose  of  disseciion,  against  the  form  of  the 
statute  in  such  case  made  and  provided  and  against  the  peace  of  the 
People  of  the  State  of  New  York  and  their  dignity. 

And  the  jurors  aforesaid  upon  their  oath  aforesaid  do  further 
present  that  the  said  John  C.  Weed,  Alanson  R.  Simmons  and  Judson 
H.  Graves  on  the  day  and  year  aforesaid,  at  the  town,  county  and 
state  aforesaid,  a  graveyard  situated  in  the  said  town  of  Bristol, 
county  aforesaid,  unlawfully  did  enter  and  the  grave  there,  in  which 
the  body  of  one  Martha  J.  Brockelbank,  deceased,  had  lately  before 
then  been  interred  and  then  was,  with  force  and  arms  unlawfully, 
voluntarily,  willfully,  feloniously  and  indecently  did  dig  open  and 
afterward,  to  wit:  on  the  same  day  and  year  aforesaid,  with  force 
and  arms,  at  the  town  and  county  aforesaid,  the  dead  body  of  her  the 
said  Martha  J.  Brockelbank,  out  of  the  grave  aforesaid,  unlawfully, 
feloniously  and  indecently  did  take,  remove  and  carry  away,  for  the 
purpose  of  selling  the  same,  against  the  form  of  the  statute  in  such 
case  made  and  provided  and  against  the  peace  of  the  People  of  the 
State  of  New  York  and  their  dignity. 

And  the  jurors  aforesaid,  upon  their  oath  aforesaid,  do  further  pre- 
sent that  the  said  John  C.  Weed,  Alanson  B.  Simmons  and  Judson  H. 
Graves  afterward,  to  wit:  on  the  same  day  and  year  last  aforesaid  at 
the  town  of  Bristol,  in  the  county  aforesaid,  the  dead  body  of  one 
Martha  J.  Brockelbank,  deceased  so  as  aforesaid,  unlawfully,  feloni- 
ously and  indecently  dug  up  from  the  grave  aforesaid  and  unlawfully 
and  indecently  taken  and  carried  away  as  aforesaid,  from  said  grave, 
unlawfully,  feloniously  and  indecently,  did  receive  for  the  purpose  of 
dissection,  they,  the  said  John  C.  Weed,  Alanson  R.  Simmons  and 
Judson  H.  Graves  then  and  there  well  knowing  the  said  dead  body  of 
the  said  Martha  J.  Brockelbank,  deceased,  to  have  been  so  as  afore- 
said, unlawfully,  feloniously  and  indecently  dug  up,  taken  and  car- 
ried away  from  the  grave  aforesaid  for  the  purpose  of  dissection, 
against  the  peace  of  the  People  of  the  State  of  New  York  and  their 
dignity,  and  against  the  form  of  the  statute  in  such  case  made  and 
provided. 

Wm.  H.  Smith,  District  Attorney. 

5.  For  Destroying  Cemetery  Property. 

Form  No.  6802.' 
In  the  name  and  by  the  authority  of  the  state  of  Texas.     The 

1.  The  charging  part  of  this  indict-  identical  with  Tex.  Pen.  Code  (1895). 
ment  was  held  sufficient  in  Phillips  v.     art.  266. 

State,   29  Tex.    226,   under  a  statute        For  other  statutory  provisions  relat- 

1061  Volume  5. 


6802. 


DEAD  BODIES  AND  CEMETERIES. 


6802. 


grand  jurors  for  the  county  of  Wharton  and  state  of  Texas,  duly 
organized  as  such  at  the  October  Term,  a.  d.  i857,  of  the  District 
Court  for  said  county,  upon  their  oaths  in  said  court,  present  that 
William  J.  Phillips  and  Jim  Phillips,  on  the  twenty-fifth  day  of  March, 
A.  D.  \W6,  with  force  and  arms,  in  the  county  aforesaid,  did  then  and 
there  ^  wrongfully  destroy  and  remove  ^  the  fence  from  around  a  cer- 
tain graveyard  ^  near  the  town  of  Wharton,  in  said  county  and  state, 
which  said  fence  was  placed  around  said  graveyard  for  its  protection 
and  inclosure,  against  the  peace  and  dignity  of  the  state  of  Texas. 

James  Joyce,  Foreman  of  the  Grand  Jury. 


ing  to  the  destruction  of  cemetery 
property  and  unlawful  usage  of  ceme- 
teries see  as  follows: 

Alabama. —  Crim.  Code  (1886),  §  4028. 

Arizona.  —  Pen.  Code  (1887),  §  497. 

California.  —  Pen.  Code  (1897),  §  296. 

Delaware.  —  Rev.  Stat.  (1893),  p.  970, 
C.170,  §  I. 

Florida.  —  Rev.  Stat.  (1892),  §  2626. 

Georgia.  —  3  Code  (1895),  §§  719,  720. 

Illinois.  —  Starr  &  C.  Anno.  Stat. 
(1896),  p.  552,  par.  15,  p.  1306,  par.  271. 

Indiana.  —  Horner's  Stat.  (1896),  § 
1962. 

Iowa.  —  Code  (1897),  §  558. 

Kentucky.  — Stat.  (1894),  §  1336. 

Maryland.— Pxxh.  Gen.  Laws  (l888). 
P-  506,  §  135. 

Massachusetts.  —  Pub.  Stat.  (Supp. 
1888).  p.  786,  c.  395. 

Minnesota.  —  Stat.  (1894),  §  6786. 

Montana. —  Pen.  Code  (1895),  §  516. 

Nebraska.  —  Com  p.  Stat.  (1897),  §5^ 
6761,  6762. 

JVew  Hampshire.  —  Pub.  Stat.  (1891), 
c.  266,  g§  8-10. 

New  Jersey. —  Gen.  Stat.  (1895),  p. 
361,  §^57,  58. 

New  York.  —  Birds.  Rev.  Stat.  (1896), 
p.  1938,  cl.  10. 

North  Carolina.  —Code  (T883),  §  1088. 

North  Dakota.  —  Rev.  Codes  (1895), 
§  7204. 

Ohio.  —  Bates'  Anno.  Stat.  (1897), 
§§  7036,  7037- 

Oklahoma. — Stat.  (1893),  §  2204. 

Oregon.  —  i  Hill's  Anno.  Laws  (1892), 
§§  1876.  1877. 

Pennsylvania.  —  Pepp.  &  L.  Dig. 
(1894),  p.  516,  §  6,  p.  1260,  §  417. 

Rhode  Island. — Gen.  Laws  (1896),  c. 
279.  §  23,  c.  281,  §  22. 

Tennessee.  — Code  (1896),  §  89. 


Utah.  —  Rev.  Stat.  (1898),  §  4232. 

Vermont.  —  Stat.  (1894),  §  5007. 

Washington.  —  Ballinger's  Anno. 
Codes  &  Stat.  (1897),  §  7249. 

Wisconsin.  —  Sanb.  &  B.  Anno.  Stat. 
(1889),  §4443- 

1.  Then  and  There.  —  An  indictment 
for  cutting  trees  on  the  land  of  a  ceme- 
tery company  is  sufficiently  specific 
without  containing  the  words  "  then 
and  there."  Mettler  v.  People,  36  III. 
App.  324- 

2.  Description  of  Acts.  —  The  indict- 
ment may  properly  charge  conjunc- 
tively acts  constituting  the  offense 
which  are  stated  disjunctively  in  the 
statute.     Phillips  v.  State,  29  Tex.  226. 

3.  Description  of  Cemetery.  —  The  in- 
dictment is  sufficiently  specific  without 
describing  the  land.  Mettler  v.  People, 
36  111.  App.  324.  Nor  need  the  indict- 
ment show  whether  the  cemetery  is 
public  or  private;  nor  that  it  has  been 
dedicated  or  set  apart  for  public  or 
private  use  in  some  method  prescribed 
by  the  laws  of  the  state.  Lay  v.  State, 
12  Ind.  App.  362.  But  if  an  indictment 
for  wrongfully  desecrating  a  public 
burying  ground  contains  an  accurate 
description  by  metes  and  bounds,  the 
proof  must  correspond  with  the  aver- 
ment, and  it  is  not  sufficient  to  prove 
that  a  part  of  the  lot  described  was  a 
public  burying  ground,  although  the 
acts  complained  of  were  committed 
upon  that  part.  Com.  v.  Wellington, 
7  Allen  (Mass.)  299. 

The  indictment  need  not  designate 
the  name  of  the  person  whose  tomb  has 
been  defaced,  nor  is  it  necessary  to 
charge  that  the  dead  body  was  that  of 
a  human  being.  State  v.  Wilson,  94 
N.  Car.  1015. 


1062 


Volume  5. 


INDEX. 


AFFIDAVITS. 

Contempt,  6175  et  seq. 

Continuances  and  adjournments,  6259  ^t  ^fq. 
ANSWERS. 

Confession  and  avoidance,  6011-6014. 

Contributory  negligence,  6352. 

Coverture,  6633-6636. 

Criminal  conversation,  6738,  6739. 

Cross-complaints,  6742. 
ATTACHMENT. 

Contempt,  6193  et  seq. 
BAIL  AND  RECOGNIZANCE. 

Compounding  offenses  (order  discharging  recognizance),  5980. 

Confession  of  judgment,  6o6i. 

COMPLAINTS. 

Criminal  conversation,  6734-6737. 
COMPOUNDING  OFFENSES, 

Compromise  by  leave  of  court,  5978-5980. 

Criminal  compounding,  5967-5977. 
COMPROMISE. 

Compromise  agreements,  5999-6002. 

Offer  to  be  defaulted,  5997,  5998. 

Offer  to  compromise  by  allowing  judgment,  5981  et  seq. 
CONCEALED  WEAPONS  — Volume  4,  page  351. 
CONCEALMENT  OF  BIRTH  OR  DEATH. 

Aiding,  abetting  and  assisting,  6010. 

Children,  6003-6009. 
CONDEMNATION  PROCEEDINGS—  Cross-Reference. 
CONFESSION  AND  AVOIDANCE. 

By  notice  of  special  defense,  6019. 

By  plea  or  answer,  6011-6014. 

By  replication  or  reply,  6015-6018. 

CONFESSION  OF  JUDGMENT. 

After  action  commenced,  6048  etseq. 
Attorneys,  6051-6057. 
Before  action  commenced,  6023  et  seq. 
Confession,  6023  et  seq. 

1063  Volume  5. 


Eeferences  Indicate  INDEX.  tlie  Number  of  Form. 

CONFESSION  OF  JUDGMENT— C^«/j«««/ 
Corporations,  6058. 
Executor,  6059. 
Guardian  of  lunatic,  6060. 
Judgment,  6062-6086. 

Offer  to  confess  judgment,  6021,  6022.  * 

Recognizance  for  debt,  6061. 
Warrant  of  attorney,  6087-6089. 

CONSIDERATION. 

Consideration  tainted  with  usury,  6110. 
Failure  of  consideration,  5093  et  seq. 
Illegal  consideration,  6102-6109. 
Want  of  consideration,  6090-6092. 

CONSOLIDATION  OF  ACTIONS. 
By  consent  of  parties,  61 19,  6120. 
By  motion  or  order,  6112-6118. 
By  plaintiff,  6111. 

CONSOLIDATION  OF  COKPORAIlO'iiS  —  Cross-Heference. 

CONSPIRACY. 

Abduction  of  child,  6136. 

Abortion,  6137. 

Adultery,  6121. 

Appointment  to  public  office,  6161. 

Assault  and  battery,  6138. 

Assaulting  a  public  officer,  6157. 

Attempt  at  murder,  6122. 

Bank,  6125,  6126. 

Being  the  father  of  a  bastard,  6123. 

Boycotting  manufacturer,  6172. 

Breaking  jail,  6139. 

Cast  away  vessel  with  intent  to  injure  underwriters,  6162. 

Cheat  and  defraud,  6171. 

Cheat  or  defraud,  6125-6135. 

Civil  actions,  6170-6174. 

County,  6127. 

Criminal  prosecution,  612T  et  seq. 

Destroying  property,  6142. 

Extorting  money  from   employer   by    threatening   workmen   to   leave   his 

employ,  6173. 
Falsely  charging  with  criminal  offense,  6121-6124, 
Falsely  to  accuse  plaintiff  of  criminal  offense,  6169. 
Federal  statutes,  6162-6169. 
Fictitious  census  returns,  6165. 
Formation  of  trust,  6153. 

Giving  false  evidence  and  suppressing  facts  on  trial,  6158. 
Hinder  trade  or  comn.erce,  6172. 
Individual,  6128. 

1064  Volume  5. 


Beferences  Indicate  INDEX.  the  Number  of  Form. 

CONSPIRACY  —  0«/i««^^. 

Injuring  credit  of  retail  dealer  and  preventing  bis  obtaining  supplies,  6174. 

Larceny,  6124. 

Murder,,  6144. 

Obstructing  business  of  a  corporation,  6154. 

Obstructing  justice  and  due  administration  of  law,  6156-6161. 

Plunder  a  wrecked  steamboat,  6166. 

Preventing  corporation  from  employing  certain  workmen,  6155. 

Preventing  enjoyment  of  elective  franchise  and  civil,  6167. 

Preventing  exercise  of  right  of  suffrage,  6i68. 

Preventing  homestead  entry,  6167. 

Preventing  workman  from  obtaining  employment,  6156. 

Procuring  defilement  of  young  female,  6146. 

Procuring  elopement  of  a  minor  daughter,  6147. 

Procuring  inspector  of  elections  to  neglect  his  duty,  6169. 

Procuring  marriage  falsely  to  appear  of  record,  6148. 

Robbery,  6149. 

Seduction  by  sham  marriage,  6151. 

Soliciting  bribes,  6152. 

To  commit  certain  crimes,  6136-6152, 

To  defraud  the  United  States,  6163. 

To  hinder  trade  or  commerce,  6153-6155. 

Unlawfully  obtaining  a  decree  of  divorce,  6159, 

Unlawfully  taking  intoxicating  liquors  held  under  lawful  seizure,  6160. 
CONSTABLES—  Cross-Referenee, 
CONTEMPT. 

Affidavit,  6175  et  seq. 

Attachment,  6193  et  seq. 

Attachment  for  failure  to  obey,  motion  for,  6186-6188. 

Attachment  for  failure  to  obey,  petition  for,  6188. 

Commitment,  6231-6248. 

Contemnor's  defenses  and  remedies,  6250-6255. 

Criminal  prosecution,  6249. 

Information  for  contemptuous  publication,  6185. 

Interrogatories  to  contemner,  6223-6225. 

Order  discharging  from  imprisonment,  6253. 

Order  of  conviction,  6228-6240. 

Order  to  show  cause,  6189-6192. 

Pardon,  6254. 

Petition  for  revocation  of  order  of  commitment,  6252. 

Proceedings  against  contemnor,  6175  et  seq. 

Proceedings  connected  with  reference,  6226,  6227. 

Writ  of  prohibition  forbidding  commitment,  6255. 
CONTINUANCES  AND  ADJOURNMENTS. 

Absence  of  counsel,  6261-6269. 

Absence  of  documents,  6299. 

Absence  of  party,  6270,  6271. 

Absence  of  witness,  6272  et  seq. 

Additional  or  amended  affidavit,  6304. 

1065  Volumes. 


Beferences  Indicate  INDEX  the  Number  of  Form. 

CONTINUANCES  AND  ADJOURNMENTS  — C^»^j««<r^. 
Adjournments,  6311-6315. 
Affidavit  for  continuance,  6.59  et  seq. 
Another  suit  pending,  6300. 
Certificate  of  physician.  6305. 
Counter-affidavits,  6308. 
Motion  for  continuance,  6257-6258. 
Notice  of  motion  for  continuance,  6256. 
Order  of  continuance,  6309. 

Order  setting  aside  order  for  continuance,  6310. 
Public  excitement  and  prejudice,  6260. 
Stipulation  for  continuance,  6306,  6307. 
Surprise  at  trial,  6301-6303. 
Want  of  preparation,  6259. 

CONTRACT  LABOR  LAW. 

Action  for  penalty,  6316-6318. 
Criminal  prosecution,  6317. 

CONTRACTS—  Owj-i?</^r^w^. 

CONTRACTS  OF  HIRE. 

Actions  ex  contractu,  6318-6328. 

Actions  ex  delicto,  6329-6331. 

Bailee  for  damages  due  to  defect  in  chattel,  6331. 

Bailee  for  defect  in  chattel,  6327. 

Bailor  for  improper  use  of  chattel,  6329,  6330. 

By  bailor,  6318-6326. 
CONTRIBUTION. 

Between  co-debtors  in  general,  6332-6337. 

Between  co-devisees  and  co-legatees,  6349. 

Between  co-sureties,  6338-6343. 

Between  joint  owners  of  property,  6346-6348. 

Between  joint  tort-feasors,  6350. 

Between  partners,  6344. 

Between  stockholders,  6345. 
CONTRIBUTORY  NEGLIGENCE. 

Answer,  6352. 

Plea,  6351. 
CONVERSION  —  Cross-Reference. 
CONVICTS. 

Certificate  of  vocation,  6358. 

Discharge  of  poor  convicts,  5353-6357. 

Indictment  for  cruel  and  inhuman  treatment  of  convict,  6360. 

Oath  of  county  convict  of  inability  to  pay  fine,  6359. 

COPYRIGHT. 

Infnngement  proceedings,  to  prevent,  6361  et  seq. 
Statutory  penalties,  action  for,  6371,  6372. 

Unpublished  manuscript,  action  for  violation  of  common-law  right,  6373, 
CORAM  NOBIS  —  Cross-Reference. 

1066  Volumes. 


Eeferences  Indicate  INDEX.    '  the  Homber  of  Form. 

ZO^hM\OYi\'S>—Cross.Reference. 

CORONER'S  INQUESTS. 

Certificate  that  inquest  is  unnecessary,  6374,  6375. 

Examination  of  witness,  6382. 

Inquisition,  6383-6385. 

Subpoena,  63S0,  6381. 

Venire,  6376-6379. 

Warrant  of  commitment,  6388. 

Warrant  of  arrest,  6386,  6387. 

CORPORATIONS. 

Application,  6389,  6390.  ^ 

Application,  granting  of,  6391. 

Certificate  of  incorporation,  granting  of,  6392-6396. 
Confession  of  judgment,  6058. 
Consolidated  corporations,  6397  et  seq. 
Dissolution  of  corporations,  6422  et  seq. 
Incorporation,  6389-6391. 
Reorganized  corporations,  6417  et  seq. 
Winding  up  of  corporations,  6422  et  seq. 
COSTS. 

Action  to  recover  costs  against  party  discontinuing  action,  6589. 

Additional  allowance,  6573  et  seq. 

Award  of  costs,  6578  et  seq. 

Dismissal  for  failure  to  give  security,  6525  et  seq. 

Notice  to  recover  illegally  exacted  costs,  6590  et  seq. 

Security  for  costs,  6476  et  seq. 

Suits  in  forma  pauperis,  6533  et  sq. 

Taxation  of  costs,  6549  et  seq. 

COUNTERCLAIM  —  Cross-Reference. 
COUNTERFEITING. 

Counterfeit  money  in  one's  possession,  6617-6624. 

Green  goods,  advertising  of,  6616. 

Instruments  for  counterfeiting  in  one's  possession,  6626-6629. 

Making  counterfeit  money,  6591-6604. 

Making  instruments  for  counterfeiting,  6625. 

Selling  and  bartering  counterfeit  money,  6614-6616. 

Uttering  and  passing  counterfeit  money,  6605-6613. 

COUNTY  COMMISSIONERS— Cwj->?<r/^r<r«<rf. 
Q,0\5'?0^'i—  Cross-Reference. 

COVENANT. 

At  common  law,  6630,  6631. 

In  the  United  States,  6632. 
COVENANTS  —  Cross-Reference. 

COVERTURE. 

Plea,  answer  or  affidavit  of  defense,  6633-6636. 
Replication,  6637,  6638. 

1067  Volume  5. 


Beferences  Indicate  INDEX.  the  Number  of  Form. 

CREDITOR'S  SUITS. 

Creditors  of  a  corporation,  6653. 

Dower  interest  not  setoff,  6640. 

Judgment  standing  in  favor  of  debtor,  6641, 

Patent-right,  6648^ 

Property   in    name  of  another  where   purchase   money    was   furnished   by 

debtor,  6643.  6644. 
Royalty  payable  under  a  publisher's  contract,  6645. 

To  enjoin  transfer  of  note  and  foreclosure  of  mortgage  held  by  debtor,  6651. 
To  obtain  discovery  of  property  of  judgment  debtor,  6652. 
To  subject  property  not  reachable  by  execution,  6639  et  seq. 
Treasury  warrant,  6646. 
Trust  property,  6647-6650. 
Unpaid  stock  subscriptions,  6654. 

CRIME  AGAINST  NATURE. 

Assault  with  intent  to  commit,  6657. 
Solicitation  to  commit,  6658. 

CRIMINAL  COMPLAINTS. 

Offenses  triable  in  justices'  and  other  inferior  courts,  6709  ei  seq. 
Preliminary  proceedings,  6662  et  seq. 

CRIMINAL  CONVERSATION. 

Answer  or  plea,  6738,  6739. 

Complaint,  declaration  or  petition,  6734-6737. 

CROSS-COMPLAINTS. 

Answer  and  cross-petition,  6742. 
In  general,  6740,  6741. 

CRUELTY  TO  ANIMALS. 

Cruelly  abandoning,  6744  and  6745. 

Failure  to  provide  proper  food  or  shelter,  6751-6753. 

In  general,  6743. 

Pigeon  shooting,  6760. 

Tormenting  and  torturing,  6746-6750. 

Transporting,  6754,  6755. 

Working  animals,  6756-6759. 

CRUELTY  TO  CHILDREN. 

Exposing  to  inclemency  of  weather,  6762. 

Illegal  employment,  6766-6770. 

In  general,  6761. 

Neglecting  to  provide  support,  6763-6765. 

DAMAGES,  OFFER  TO  LIQUIDATE. 
The  acceptance,  6772. 
The  offer,  6771. 

DANGEROUS  AND  VICIOUS  ANIMALS. 
Civil  actions  for  injuries,  6773-6778. 
Criminal  prosecutions,  6779-6781. 

1068  Volume  5. 


Beferences  Indicate  INDEX.  the  Hamb«r  of  Form. 

DEAD  BODIES  AND  CEMETERIES. 

Accounting  by  holdprs  of  cemetery  bonds,  to  compel,  6793. 

Actions  relating  to  cemeteries,  6792  et  seq. 

Assessment  proceedings,  6782,  6783. 

Autopsy  without  permission,  action  for  performing,  6794,  6795. 

Bill  for  injunction  to  prevent  removal  of  body,  6788. 

Bill  for  permission  to  remove  body,  6787. 

Bill  to  compel  restoration  of  body  to  lot,  6789. 

Criminal  prosecutions,  6796  et  seq. 

Damages,  actions  for,  6790-6792. 

Destroying  cemetery  property,  6802. 

Failure  to  bury  dead  bodies,  6796. 

Non-communicant,  to  restrain  burial  of,  6784. 

Removing  body,  6797. 

Stealing  body,  6798-6800. 

Stolen  body,  for  receiving,  6801. 

To  recover  plot,  answer  setting  up  dedication  and  occupancy,  6785. 

DECLARATIONS. 

Criminal  Conversation,  6734-6737. 

EXECUTORS. 

Confession  of  judgment,  6059. 

GUARDIANS. 

Confession  of  judgment,  6060. 

INJUNCTIONS. 

Contempt,  6176,  6186-6188. 

MOTIONS. 

Consolidation  of  actions,  6112-6118. 

PETITIONS. 

Criminal  conversation,  6734-6737. 

PLEAS. 

Confession  and  avoidance,  6011-6014, 
Contributory  negligence,  6351. 
Coverture,  6633-6636. 
Criminal  Conversation,  6738,  6739. 

REPLICATION. 

Confession  and  avoidance,  6015-6018. 
Coverture,  6637,  6638. 

ORDERS. 

Consolidation  of  actions,  6112-6118. 
See  Contempt. 

1069  Volume  5. 


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